Posts Tagged ‘Rule of Law’

Mining Right Wing Critiques for Some Honesty

Wednesday, October 21st, 2009

I’ve gotten tired of being outraged at every self-serving lie and every new line crossed and picking apart idiotic arguments by right wingers. This served some purpose during the campaign – and I believe it is important to do when disinformation campaigns are being waged (as during August of the health care debate). But it is not what I feel most comfortable doing.

At the same time, I believe Republicans are undermining the two-party system and our democratic institutions by using their considerable clout to promote fantastical claims and lies about the efforts of their opponents instead of engaging in more pragmatic or fair-minded criticisms. Right wingers who back the Republicans have likewise mainly fallen into this trap – aside from a few notable exceptions (Ross Douthat, Reihan Salam, David Frum, Bruce Bartlett, David Brooks.)One of my goals then will be to not only promote these individuals – as Andrew Sullivan for example is – but to read the propagandist crap from more mainstream right wingers and mine it for legitimate criticism.

I’ve had this thought in my head for a few weeks – and have been reading wit this in mind. But when reading items like this by Steve Huntley in the Chicago Sun Times, it becomes very difficult:

Someone’s brain is clearly addled – for there is nothing contradictory about claiming you inherited the worst economy since the Great Depression (which it technically was) and that it is even worse than was thought (especially as several weeks after Biden’s remark, the Department of Commerce released the official statistics revising its statistics down for the past year as it periodically does.)

It amazes me that such paragraphs get past an editor.

Other concerns – while perhaps legitimate – are so self-serving they are hard to reconcile with past views. For example, Wesley Smith over at National Review‘s The Corner did not from my reading of him bring up the subject of the “rule of law” at all during George W. Bush’s presidency. However, now he brings it up with a hard criticism of the Obama administration’s position on medical marijuana:

Part of the sleight of hand here is a subtle mischaracterization of the change. Obama is not “refusing to enforce federal marijuana laws” but rather shifting resources away from targeting these groups, or as Devlin Barrett of the Associated Press described it, prosecutors will be told that “it is not a good use of their time to arrest people who use or provide medical marijuana in strict compliance with state law.” And Smith doesn’t acknowledge the long tradition (he refers only to Andrew Jackson) of presidents refusing to enforce laws as part of the checks and balances described in most textbooks on the Constitution. Smith also ignores the far more serious violations of the rule of law that Bush committed in actually ordering the law be broken and declaring it void when it violated his duty to protect Americans.

This sudden concern for the rule of law – concern suggesting it was incredibly fragile and can be destroyed in an instant – seems to reinforce the point I made earlier – that the strong positions taken by conservatives regarding curbing executive power and discretion are entirely unprincipled. They have everything to do with the fact that a liberal is now in power and will be abandoned again when they have power.

However, I did find one conservative critique I could endorse: Marie Gryphon’s piece in the National Review that makes the case against scapegoating Ken Lewis of Bank of America. To blame him for accepting the deal he did – especially given the amount of pressure he was under from Hank Paulson, Ben Bernanke, and those working with them is ridiculous. Whether or not there is a legal case against him, it should not be pursued.

Obama’s Dangerous Hypocrisy on Prisoners at Guantánamo and Bagram

Wednesday, September 16th, 2009

As a strong supporter of Barack Obama’s candidacy, and of his administration in general, I must concede that Glenn Greenwald yesterday proved why he is such a valuable commentator in taking the administration on. He kept his rhetorical tics to a minimum and avoided the “ideological wind tunnel” effect that so much of his writing produces – and this allowed his piece to have a broader impact.

Alright – he started off with the same weirdly exaggerated sense of perspective – proving my previous point that Glenn Greenwald uses hyperbole the way other writers use punctuation:

It’s now apparent that the biggest sham in American politics is Barack Obama’s pledge to close Guantanamo and, more generally, to dismantle the Bush/Cheney approach to detaining accused Terrorists. [my emphasis]

But Greenwald quickly got down to making the substantive case – which on this front is extremely strong. On my blog and elsewhere, I have brought up Bagram as an example of Obama’s most clear failure, though I haven’t yet made the sustained case as Greenwald does.

As I wrote earlier, the Supreme Court’s rulings on the rights of detainees to certain basic rights at Guantánamo was 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. Yet this is exactly what the Obama administration is claiming. Our nation’s freedoms are grounded in our traditions, and at the base of these traditions is 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.

Greenwald does not attempt to reconcile Obama’s views about Guantánamo as a candidate with the positions taken by his administration now – he simply hurls the well-justified charge of hypocrisy while tossing in a few snide remarks about those who continue to support Obama (which is a Greenwald staple.) He does not try to grapple with the issues the Obama administration faces in trying to deal with the political, legal, and strategic consequences of the radical actions taken by the Bush administration.

Greenwald is not the “fox” of Isaiah Berlin’s parable, but the very Bushian hedgehog. And on this issue, the hedgehog has grasped the basic truth: In condemning Bush for Guantánamo and the secret CIA prisons while expanding Bagram and using this different location for the same or similar purposes cannot stand, the Obama administration is engaging in rank hypocrisy which we cannot let stand. (As Greenwald points out, its unclear what exactly Bagram is being used for as the Obama administration has been keeping too many documents secret.) I highly reccomend you read Greenwald’s important post from yesterday.

By acting this way regarding detainees at Bagram, Barack Obama threatens the very Rule of Law that he came into office promising to protect – and that he swore to protect when taking the oath of office. Liberals must oppose this; conservatives must oppose this; libertarians must oppose this; Americans must oppose this, and be guided by “Something wiser than our own quick personal impulses… [&] sweeter than the taste of a political victory.”

We must be guided, simply, by Our Lady of the Law.

[Image by DVIDSHUB licensed under Creative Commons.]

Cokie Roberts Thinks the Rule of Law Might Be More Important Than A Pleasant Atmosphere in Washington

Wednesday, July 15th, 2009

When I heard Cokie Roberts saying this on Sunday my jaw dropped:

The self-centeredness of the response – and the fact that she showed no shame about explaining this as her reasoning on national television when she was supposed to be acting as a serious commentator. Though it is pretty awesome that she is willing to undergo the inconvenience of the “bad atmosphere” in Washington as a result of attempting to uphold the Rule of Law. I’m glad she is willing to make the sacrifice for the rest of us.

It’s pretty telling that committing war crimes isn’t what is credited with souring the mood – but instead the blame is foisted onto those who uphold the law…

Our Lady of the Law

Tuesday, July 7th, 2009

About a year and a half ago, looseheadprop at Firedoglake posted about a speech he called “Our Lady of the Law.” I’ve contacted Governor Cuomo’s offices a number of times in the past year asking if they could provide me a copy, and allow me to publish it on this blog, and last week, they graciously did.

Governor Cuomo gave this speech at a dark moment in the winter of 2007 as George W. Bush’s radical national security policies undermined the Rule of Law at home – from warrantless wiretapping to torture to the misuse of signing statements to the politicization of the Department of Justice to the unsupervised jailing of non-combatants under the authority of the executive branch. At the same time, the Lawyers Movement in Pakistan fought to restore the Rule of Law in Pakistan and marched against President Musharaff. looseheadprop quoted a line which isn’t in the prepared text I was given in which Governor Cuomo called on lawyers in America to follow the example of their brethren in Pakistan:

If US lawyers are marching in the streets in support of the rule of law in Pakistan, why aren’t we marching in support of the rule of law here?

Knowing human nature and his history, Governor Cuomo pointed out the George W. Bush was attempting to subvert the Rule of Law and “inflate the presidency into unconstitutional shape and power.” In this dark time, the winter of 2007, as revelation after revelation of George W. Bush’s misdeeds became public, Governor Cuomo called on the lawyers to fight for the Rule of Law – for Our Lady of the Law. He concluded with a call to arms – not against George W. Bush but to protect the institutions that enable us to be a state of consent and the liberal democracy that the Founding Fathers envisioned:

Surveys tell us that we believe our nation is not heading in the right direction and we have no clear notion as to how to change course.

It’s more than just the war in Iraq and threats of still another war that concerns us.

We have no heroes, no heroines, no soaring ideologies.

We are tired of, and frustrated by, political answers that seem impertinent, too shallow, too short-sighted or too harsh.

We are not even sure what we wish to be as a nation. We’re tempted to see ourselves as 300 million disassociated individuals struggling for survival and dominance in a dog-eat-dog world, instead of seeing ourselves as a fully integrated society, interconnected, interdependent, growing stronger together.

Some of us are frightened by 9/11 and terrorism into thinking we can be saved by a more powerful presidency even at the risk of creating the kind of monarchial power the Founding Fathers sought to protect us from in the Constitution.

We need something more ─ something better to believe in. To hold onto. To be guided by.

Something wiser than our own quick personal impulses.

Something sweeter than the taste of a political victory.

It would take more than the time we have now ─ and perhaps more than the wisdom that resides here today ─ even in this very gifted group ─ to find and to describe all we must do to relieve this profound discomfort.

But there is one thing we lawyers know will help relieve the unsureness that troubles us.

And that is “Our Lady of the Law,” as she comes to us in our Constitution ─ the nation’s bedrock.

Our 200 year old legacy of law and justice has been the foundation on which we have built all that is good about America. We must not allow that foundation to be weakened or even defaced by a political system whose claim to morality is the latest urge of the American people ─ however distracted, however mislead we may be on occasion.

We must not allow our eager presidents and timid Congress people to combine to weaken our system of checks-and-balances and threaten our republic by allowing a single individual to exercise monarchial powers.

For 200 years “Our Lady of the Law” has proven stronger than the sins of her acolytes and has made us better than we would have been.

Now she must be lifted above the political melee and the confusion before she is brought down and her guiding light is no longer visible to us.

Someone must lend their shoulders in the effort to do that.
If not, the lawyers, then who?

As we continue to experiment with national security laws, this message still rings true. We still need a Lawyers Movement in America to keep Barack Obama and our government honest – to ensure that they continue to protect the Rule of Law.

I’ve published the full text of the speech below the jump.

(more…)

My Congressman Pete King Pisses On Michael Jackson; I Repay the Favor

Tuesday, July 7th, 2009

Reading the news stories about my Congressman Pete King’s “rant” pissing all over Michael Jackson’s dead body – saying “there’s nothing good about this guy” and calling him a “lowlife,” a “pervert”, a “pedophile,”  a “child molestor” – I expected to be incensed when I saw the video. It’s not that I believe Jackson wasn’t any of these things – it’s just that in the absence of any convictions and with the accusations in the second trial at least looking rather calculated – I’m still reserving judgment. I wouldn’t go around denouncing a dead man for being a child molestor based entirely on the media’s portrayal of him.

But rather than being incensed at a ranting Congressman, what I saw instead was a rather sober, if cliched, Rep. Pete King – just down the block from my house in Wantagh – trying to cut through the bullshit and express something he felt without a politically correct censor. He does well to remind us that our country has many unsung heroes – police officers, firemen, people who volunteer in cancer wards, teachers who work in the inner city. It’s always a good time to remind people of that point. King’s “rant” reminded me of the way I had admired him for his defense of Bill Clinton through the impeachment trial:

In that same spirit that led King to take on Michael Jackson (but without relying on smears and accusations and instead relying on the Congressman’s own documented words), let me say this to my congressman, mincing no words:

Whatever your other redeeming qualities, you are a bigot – and a disgrace to the House of Representatives.

You have repeatedly demonstrated that you equate Islam with terrorism in public remarks – notwithstanding your attempts to save face by saying you are not talking about all Muslims.

When asked about protecting civil liberties, you responded that “there are too many mosques in this country.”

When asked by Sean Hannity about previous statement you had made that 85 percent of mosques in America are “ruled by the extremists,” you said that many American Muslims are in reality “an enemy living amongst us.”

You denounced a mosque for running subway ads as “especially shameful because the ads will be running during the seventh anniversary of September 11, and because the subways are considered a primary target of terrorists” – equating, once again, the religion of Islam with terrorism.

You recently claimed that the FBI was investigating a number of Long Island mosques – which if true, was classified and endangered active operations; and if not true, is a lie for your propagandistic purposes.

I first realized you were a bigot when I read your novel Vale of Tears back in 2004 expecting a standard thriller – but what I got instead was page after page of anti-Muslim invective, approvingly noted by the narrator – an Irish American Congressman from Long Island who bore a striking resemblance to you.

And all of this bigotry is justified by your reaction to September 11 – which transformed you from a sensible moderate to a bigot and a fetishist for executive power. Since then, you have had little time for such niceties as the rights of citizens and American values – as you focus on this fight against “the enemy living amongst us,” thereby targeting the rights of us all. When asked about balancing American values with government power over citizens, you advocated the government using any means necessary – ignoring civil liberties and constitutional protections – as “if there is any doubt, [you] want this resolved by going out and getting the job done.” “If there is any doubt” you want to err on the side of constricting the liberty of citizens! This is not consistent with your oath to uphold the Constitution. Given this, it’s not that surprising that you think Guantanamo – a place where hundreds have been tortured according to America’s own records – goes too easy on them – that it’s like “Club Med.”

You are not the type of congressman we need. Your bigotry is embarrassing. Your disregard for American values is abhorrent in a public servant, sworn to uphold the Constitution. Whether you decide to challenge Kristen Gillibrand for New York’s Senate seat or remain in your House seat, I will do my best to make sure you no longer represent me.

That’s from me, Joe Campbell, addressing you in the no-bullshit style you so value. Go ahead – rant about that.

Explaining Obama’s “Double Standard” Regarding Iran and Honduras

Thursday, July 2nd, 2009

A number of Obama’s critics have pointed out a disparity between Obama’s treatment of Iran on the one hand – and Israel and Honduras on the other.

In their view, Obama has refused to take a side in Iran even though he clearly should be on the side of the protesters if he values life, liberty, and the American way. In Israel, Obama has pressured the Israelis while giving free reign to the Palestinians who are really at fault. While in Honduras, Obama has clearly taken the side of the leftist friend of  Hugo Chavez who was removed from office with the endorsement of courts and Congress of Honduras as they sought to protect their democracy from the president’s power grab. In all of these cases, they claim, Obama has taken the side of anti-democratic forces – and only interfered with our “friends” – presumably because Obama is desperate for the approval of the European Union, which is in itself anti-democratic and leftist. This portrayal of Obama is based on their observation that in Iran Obama has reacted to major violations of the values he claims to hold with muted tones – but in Israel and Honduras he has reacted to minor violations with strident tones.

This caricature of Obama presumes he is acting in bad faith at all times, which is increasingly the sole item of agreement among the Republican opposition; and it attributes to Obama a nonsensical and inconsistent worldview. But you don’t have to be a right-winger to notice the sharp differences in tone between Obama’s cautious approach to Iran and his more aggressive approaches in Honduras and Israel.

David Rothkopf proposes one explanation – that frankly seems a bit too Beltway for me, but I’m sure is a factor in Obama’s change in tone between the Iranian coup d’etat and the Honduran one:

[A] reason for the swift action on Honduras is that old faithful of U.S. foreign policy: the law of the prior incident. This law states that whatever we did wrong (or took heat for) during a preceding event we will try to correct in the next one … regardless of whether or not the correction is appropriate. A particularly infamous instance of this was trying to avoid the on-the-ground disasters of the Somalia campaign by deciding not to intervene in Rwanda. Often this can mean tough with China on pirated t-shirts today, easy with them on WMD proliferation tomorrow, which is not a good thing. In any event, in this instance it produced: too slow on Iran yesterday, hair-trigger on Honduras today.

While I’m sure the law of prior incident played a role, it seems to me that there is a more basic explanation for this disparity – which likewise explains the difference between Obama’s approach towards Israel. The difference in how Obama dealt with these various crises comes from how Obama understands power in foreign relations. The President of the Council on Foreign Relations, Leslie H. Gelb, in Power Rules, defines it:

Power is getting people or groups to do something they don’t want to do. It is about manipulating one’s own resources and position to pressure and coerce psychologically and politically….And American leaders would do well to learn, finally, that power shrinks when it is wielded poorly. Failed or open-ended wars diminish power. Threats unfulfilled diminish power. Mistakes and continual changing of course also diminish power.

Teddy Roosevelt understood this implicitly when he said:

Speak softly and carry a big stick.

Alternatively, George W. Bush used grand language, made many threats:

From Egypt to Georgia, President Bush … wrote rhetorical checks he had no intention (or ability) to cash.

What Bush did not seem to realize – and what right-wingers today still do not seem to realize – is that it weakens the United States to declare, “We are all Georgians!” as Russia invades Georgia and we do nothing – as happened under Bush. Yet the rhetoric is not the problem – as it actually strengthened America when John F. Kennedy declared, “We are all Berliners” and the Soviet Union, given the lengths Presidents Truman and Eisenhower had gone already to protect West Berlin, believed the young president was willing to protect Berlin at high cost. Many right-wingers have cited Ronald Reagan’s challenge to Gorbachev to “Tear down this wall!” as a model for what Obama should say to Iran. But what made Reagan’s exhortation more than mere empty rhetoric and bluster was the personal relationship he had with Gorbachev after years of meeting with him. And when Reagan made this statement, he was not demanding it – he was rather challenging Gorbachev to live by the values he claimed he held. Reading the actual speech this challenge is prefaced by an “if.” This is a very different proposal than what right-wingers want Obama to say: which is to endorse one side in an internal conflict and refuse to negotiate with this member of the “Axis of Evil.” Reagan on the other hand negotiated with the “Evil Empire” and stayed out of internal Soviet politics – realizing that the endorsement of an enemy could be toxic.

What Obama has shown in the past several weeks is an impatience with hollow rhetoric which presumes conflicts in other countries are really about us. The striking oratory he does use always seems to have a specific purpose – to reach out to Muslims angered by what they see as a war against them, for example – or to call on Europeans to send more troops to Afghanistan. Obama sees words in foreign policy as tools to be used rather than ways of expressing our feelings about other nations. Thus, despite his apparent feelings about Iran – and his great sympathy for the Green Wave – he does not feel the need to express this publicly if he does not see what it will accomplish. With many Iranians publicly saying they did not want Obama to take the side of the protesters publicly as it would undermine them (for example, here and here), he had little reason to do so.  So far he had not been willing to undermine his and America’s power by using puffery and empty threats on Iran just to please his domestic audience, despite pressure from the right-wing.

But Obama did speak more forcefully on Israel and Honduras. Why? Because in these two places he has significant leverage – and his words can have an impact. Also – in neither of these places was America regularly called “The Great Satan.” (Imagine if Ahmadinjad had endorsed Obama in our election. Would that have helped Obama?) With regards to these nations, Obama can say what America wants and put pressure on those in control there for it to happen as America supplies significant funds to both nations – and has diplomatic, economic, and military alliances.

Speaking about Iran, on the other hand, Obama can only offer wish lists – which he would not be able to pressure Iran to fulfill – and when Iran ignored him, America would look weaker.

I also believe there is another factor at work. I have already stated that I believe the Obama Doctrine – that will and is guiding his foreign policy – is a focus on creating and maintaining states of consent. One of the basic principles which is necessary to create a state of consent is Rule of Law; another is the freedom of people to peacefully protest and speak freely. Obama has limited himself to condemning those actions which have violated the principles underpinning a state of consent. Not having direct knowledge of the election results in Iran, he remained quiet – though the administration raised questions. When confronted with evidence of the violent suppression of peaceful protests and attacks on free speech, he condemned these in strong terms – though he still refused to take a side, saying the battle was internal. In the case of Honduras, the State Department had been working with opponents of President Zelaya as he took illegal and unconstitutional actions to see how Zelaya could be checked. This is why they knew so quickly that the coup d’etat was a clear violation of the Rule of Law. The American State Department had been working with the Honduran Congress and other leaders to determine what the constitutional steps would be to remove Zelaya. At the same time, the intervention of the military set a bad precedent, undermining ability of the people to consent to their government. As Der Spiegel explained:

Anyone who sees the coup as some sort of effort to rescue democracy must ask themselves what version of democracy involves removing the elected leader of a country from office while holding a pistol to their head.

Obama has here still neglected to side with either party – instead insisting both parties follow their commitments to the law of their land, which the military violated. The American position is that Zelaya should resume his place as rightful president – and impeachment or other proceedings could then occur, although the deal being negotiated instead merely ties his hands to prevent him from any further dictatorial actions (demonstrating that the military actually weakened their hand in dealing with Zelaya in overreacting.)

In each of these cases, Obama displays a common goal – to maintain and allow the space for states of consent – free from military or other violent forms of coercion.

What right-wingers are declaring inconsistency is one of results – not goals. The differences in responses can be quite clearly explained by looking at what leverage Obama had and by a consistent moral demand that the nations of the world govern by consent and not force.

[The above image is a product of the United States government.]

The Rule of Law in Honduras

Tuesday, June 30th, 2009

I’m still trying to figure out exactly what did happen and what should have happened in Honduras. What seems most plausible to me at the moment is that President Mel Zelaya attempted an unconstitutional power grab – and the military, the Supreme Court and the Congress then executed a coup d’etat, though perhaps a constitutional one. However, if the Hondoruran constitition allows such flexibility and military involvement, I tend to doubt it’s longetivity. This description of Honduras’s constitutionalism by the U.S. Department of the Army also does not bode well:

Honduran constitutions are generally held to have little bearing on Honduran political reality because they are considered aspirations or ideals rather than legal instruments of a working government.

The actions of the military – in suppressing the media, in denying the opposition the right to protest, in imposing curfews, in refusing the orders of their constitutional commander-in-chief, and then deposing him – bear all the hallmarks of a coup d’etat, even though the military was authorized to take the actions it did by the other branches of government. Much of the problem seems to stem from the fact that Honduras’ constitution does not include a provision for impeachment and removal of a president – a rather significant gap.

What is truly depressing though is the immediate, knee-jerk, factually-deficient incorporation of this crisis into the Culture War politics that apparently is all the right-wing nutjobs have left. I refer specifically to Mary Anastasia O’Grady – who misleadingly suggests that the only leaders to object to this coup d’etat are Hillary Clinton, Fidel Castro, and Hugo Chavez. In reality, virtually every nation has  – from Europe to Latin America and around the world. But O’Grady is sadly not alone in her idiocy.

If we are to have a foreign policy in which we support the right of a people to consent to or withdraw their consent from their government, then before we judge the situation by which side of the American political spectrum Zelaya would be on, we must evaluate whether or not the Rule of Law was respected – and by which side, if any. The foundation of a people’s consent is the just and even application of the Rule of Law – without which democracy is a mere sham. O’Grady and those other right-wingers bowdlerizing foreign policy into the Culture War have no patience for niceties, preferring idiotic outrage over informed indecision.

[Image by bdeboikot licensed under Creative Commons.]

The Supreme Court Holds Up the Chrysler Sale

Tuesday, June 9th, 2009

I actually decided to write a short piece stating my hope that the Supreme Court would look into Obama’s and Bush’s expansion of executive powers in tackling the financial crisis before the Supreme Court delayed the sale of Chrysler to Fiat. Now that they have, I’m relieved if a bit nervous. The key issue is the use of executive power in a crisis – as Michael J. de la Merced explained the issue:

In a broader context, such a decision would also give the justices an early opportunity to consider the scope of the wide-ranging but not unlimited authority that Congress granted the president to address the economic crisis.

I think this is a good thing – though I’m not sure how the timing of this will affect things. Generally, the strongest decisions restricting the executive’s freedom in a crisis have come after the crisis has past. With the rash of bad news on the economic front – even as most indicators seem to be levelling off – this financial crisis is not yet over. On the one hand, strong action by the Court at this time to curb the power of the president could destabilize the economy, as it is confidence in the power and determination of the executive branch and the Federal Reserve to backstop the financial system that seem to have restored confidence in the market and economy itself. At the same time, the Supreme Court is less likely to challenge the president’s authority in the middle of a crisis – making it more likely the decision will be deferential.

It is possible that all of these competing claims could be dealt with responsibly – with a Solomonic decision along the lines of Marbury v. Madison. It’s also possible that the Court may find Presidents Bush and Obama both acted constitutionally in their response. But as a matter of policy, the recent government interventions into the market are ill-advised if they extend beyond the minimum amount of time. As I wrote regarding Obama and the Rule of Law:

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.

The one issue that strikes me as worth considering – on matters of constitutionality rather than policy – is whether or not Bush and then Obama acted within their powers in providing loans to Chrysler and General Motors; perhaps a Court should also look at the broad authority given by the TARP bill itself and set some standards regarding what authorities and monies can and cannot be extended to the executive branch by the legislative.

The whole process of drafting and passing the TARP bill was obviously flawed – though it’s difficult to judge legislation passed in the midst of a crisis. The only logical way out of this I’ve heard mentioned would be to “stockpile laws” as Philip Bobbitt once suggested with regards to terrorism.

But even as there is a flawed process, it’s not clear what if anything was unconstitutional.

At the same time, I’m glad to see the Court looking seriously at getting involved. I’m all for these checks and balances.

The Cairo Rapprochement

Thursday, June 4th, 2009

Obama’s Cairo speech is an excellent beginning of a rapprochement with Muslims around the world.  Here’s a few brief comments on a few passages in the speech:

So I have known Islam on three continents before coming to the region where it was first revealed.

Very respectful tone here. But, to my mind, theologically problematic. Obama is no theologian – but if he is a Christian, then does that not mean he rejects that Islam was revealed? It’s one thing to speak in a respectful tones about another religion – but another to accept that religion’s premises that supersede your own as true.

America is not the crude stereotype of a self-interested empire. The United States has been one of the greatest sources of progress that the world has ever known. We were born out of revolution against an empire. We were founded upon the ideal that all are created equal, and we have shed blood and struggled for centuries to give meaning to those words – within our borders, and around the world. We are shaped by every culture, drawn from every end of the Earth, and dedicated to a simple concept: E pluribus unum: “Out of many, one.”

This is something Obama has done so well – to preach the exceptionalism of America. And in many ways, his own story is a symbol of this. This idea of American exceptionalism is rejected as toxic though by most opponents of America – as well as many leftists in America. At best, it is seen as a kind of crude nationalism – and at worst as a sociopathic indifference to great crimes. There are two schools of American exceptionalism – the one which suggests America is inherently better than other countries and empires – and the other which states that America’s exceptionalism can be found in how it has dealt with its ideals and its power. Obama, clearly, belongs to the second category.

For we have learned from recent experience that when a financial system weakens in one country, prosperity is hurt everywhere. When a new flu infects one human being, all are at risk. When one nation pursues a nuclear weapon, the risk of nuclear attack rises for all nations. When violent extremists operate in one stretch of mountains, people are endangered across an ocean. And when innocents in Bosnia and Darfur are slaughtered, that is a stain on our collective conscience. That is what it means to share this world in the 21st century. That is the responsibility we have to one another as human beings.

Here Obama touches on the idea of the increasing interconnectedness of the world today – and in which he seems to be suggesting an alternate explanation than greed and empire for America’s involvements around the world, as well as a collective responsibility of all to create a better world.

…more than any other, they have killed Muslims…

I wish Obama had brought this up a few times – as this is such an important point. Al Qaeda and other violent extremists (the term Obama adopted, at least for this speech) have – while speaking most about attacking America – killed mainly fellow Muslims. In a recent editorial in Dawn, Pakistan’s leading English-language newspaper, columnist Nosheen Abbas quoted a man who lived in Swat before the Taliban took over:

These hooligans come and tell us they are here to bring Islam. What? Are we not Muslims?!

This is why the most effective counterterrorism strategy that the Bush administration was able to find was to let the extremists win for a while – and let their intolerance alienate the population.

Palestinians must abandon violence. Resistance through violence and killing is wrong and does not succeed. For centuries, black people in America suffered the lash of the whip as slaves and the humiliation of segregation. But it was not violence that won full and equal rights. It was a peaceful and determined insistence upon the ideals at the center of America’s founding. This same story can be told by people from South Africa to South Asia; from Eastern Europe to Indonesia. It’s a story with a simple truth: that violence is a dead end. It is a sign of neither courage nor power to shoot rockets at sleeping children, or to blow up old women on a bus. That is not how moral authority is claimed; that is how it is surrendered.

Although this might be the right thing to say – given our interests – I am not sure this is historically accurate. It’s a rather dangerous idea – that “Resistance through violence and killing is wrong.” Clearly – Obama is not saying that with any act of violence, one cedes one’s moral authority – for then he would be condemning the police whose authority is based on their implicit ability to do violence as well as our own military – which are even now engaged in violence with various forces in the Middle East. What he is instead referring to is violent resistance – by which he clearly is referring not to violence which supports the status quo, but which opposes it, or alternately, the violence of the weak against the strong. It’s an odd thing to condemn on moral grounds – and I’m not sure how this case can be made. There are many other instances in history when resistance would seem to justify violence – the Nazi occupation, the various genocides, slavery. What I could accept is that in recent history, it has been found that peaceful mass resistance has proven to be a far more effective tool in overturning the status quo, in empowering the weak over the strong.

Too many tears have flowed. Too much blood has been shed. All of us have a responsibility to work for the day when the mothers of Israelis and Palestinians can see their children grow up without fear; when the Holy Land of three great faiths is the place of peace that God intended it to be; when Jerusalem is a secure and lasting home for Jews and Christians and Muslims, and a place for all of the children of Abraham to mingle peacefully together as in the story of Isra, when Moses, Jesus, and Mohammed (peace be upon them) joined in prayer. [my emphasis]

I am not certain – but I feel as if this passage will be cited most of all – and will be the most influential, especially the idea of Jerusalem as “the place of peace that God intended it to be.”

So let me be clear: no system of government can or should be imposed upon one nation by any other.

That does not lessen my commitment, however, to governments that reflect the will of the people. Each nation gives life to this principle in its own way, grounded in the traditions of its own people. America does not presume to know what is best for everyone, just as we would not presume to pick the outcome of a peaceful election. But I do have an unyielding belief that all people yearn for certain things: the ability to speak your mind and have a say in how you are governed; confidence in the rule of law and the equal administration of justice; government that is transparent and doesn’t steal from the people; the freedom to live as you choose. Those are not just American ideas, they are human rights, and that is why we will support them everywhere…

No matter where it takes hold, government of the people and by the people sets a single standard for all who hold power: you must maintain your power through consent, not coercion; you must respect the rights of minorities, and participate with a spirit of tolerance and compromise; you must place the interests of your people and the legitimate workings of the political process above your party. Without these ingredients, elections alone do not make true democracy.

This is almost exactly what I had hoped Obama would say. Democracy activists in the region had already expressed disappointment that Obama was going to Egypt, implying an endorsement of the regime. And some – in the aftermath of the speech – continued to complain that he had given up on Bush’s democracy promotion. Realists continue to assert that we shouldn’t bother with such niceties as democracy promotion – seeing it as mainly a destabilizing element. The neoconservatives on the other hand correctly pointed out that a great deal of the instability and resentment in the region came from the fact that most of the nations here are authoritarian. Obama is attempting to “thread the needle” here – and to my mind, did it perfectly. He adopted what I understand to be Philip Bobbitt’s understanding of a state of consent being in direct opposition to a state of terror. Accepting this formulation puts Obama’s foreign policy on stronger ground than Bush’s.

Likewise, it is important for Western countries to avoid impeding Muslim citizens from practicing religion as they see fit – for instance, by dictating what clothes a Muslim woman should wear. We cannot disguise hostility towards any religion behind the pretence of liberalism.

Am I wrong to see this as a swipe at France here?

Overall, an excellent speech – and one that was apparently well-received. The follow-up is crucial – and it remains to be seen how Obama’s focus on nations that “reflect the will of the people” differs from Bush’s democracy promotion. But the change in emphasis is key – and itself does a great deal of good.

Rewriting the Rules of Capitalism

Tuesday, June 2nd, 2009

Marc Ambinder discusses what he terms “Obama’s New Capitalism” in a recent piece. He asserts that the administration is “rewriting the rules of capitalism” but goes on to not discuss what these rules are. Which is fine – Ambinder’s piece makes some good points. One which I’ve made before is that Obama has not been violating the Rule of Law with regard to his GM and Chrysler interventions as his conservative critics allege:

Note that, aside from threats and suasion, the administration hasn’t done anything. The bondholders (with notable exceptions) agreed to these two deals. No laws have been broken. Everyone has sacrificed. And the unions have already given up a great deal – and, in doing so, put their trust in the administration.

I had written earlier:

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.

Ambinder’s point that the UAW is putting a lot of trust in the Obama administration by accepting these deals is well-taken.

But I look forward to reading (or perhaps writing) the piece that Ambinder’s title seems to promise – explaining what amendments to the capitalist system have been wrought in the final days of the Bush administration and in these opening days of the Obama administration. We obviously don’t know everything yet – as that big piece of legislation which attempts to regulate the purported roots of this financial crisis has not been drafted to my knowledge.

But I can make a few educated guesses about the shape of this capitalism. So far anyway, institutions that are too big to fail have now combined into even larger institutions. It seems unlikely this will reverse. These enormous institutions now seem to have a implicit government backstop. This will need to be dealt with either with more regulation of such institutions – or by breaking them up into smaller pieces. It seems that in the future new financial instruments will be regulated more closely – and hopefully traded over some public exchange. Obama seems to want labor forces to have a greater role in running corporations – which is a relatively unique prospect in American history – and one that if it catches on could be revolutionary. At the moment, this depends on how well the UAW is able to handle its ownership stakes in Chrysler and GM – but one can see this creating either an advantage or a disadvantage competitively. There is also the issue of systematic risk – and finding a regulator responsible for monitoring this. Perhaps most significantly – the federal government has explicitly accepted what has long been its implicit promise to keep economic growth going.