NOT A HOUSEHOLD NAME, YET

Read the CACI Analyst's recent article on GULBUDDIN HEKMATYAR, a Pashtun leader who is causing the U.S. some problems in Afghanistan. Two points of interest:

[I]n the process of prosecuting its war against Al Qaeda and Taliban remnants, the U.S. is creating considerable discontent through the violations of Pashtun tribal law. In particular, intrusive searches by U.S. military involving the violation of Purdah are causing resentment that Hekmatyar can build on. U.S. soldiers braking into the confined areas where women live is a grave violation of tribal custom, and though perhaps necessary from a military point of view, carries with it significant implications for the U.S. military’s relationship with the local population.

and:

The possible war in Iraq will be taken by many forces as a sign that America may distracted from Afghanistan, and lead to various internal and external forces moving their positions forward in the country. Hekmatyar may well capitalize on this window of opportunity to rally greater support for what is in fact a classic nationalist cause. He is known for his maximalist ambitions in negotiations, which have not earned him many points as a negotiator, but certainly has earned him a certain level of respect as a man who does not make shady deals.

Let me echo Josh Chafetz's claim that a dip in U.S. attention to Afghanistan cannot be justified. I'm more pessimistic than Josh, however. The intersection of custom, religion and military occupation that CACI notes in the first quote, above, only increases my pessimism: if the pleas of Said Tayeb Jawad for more assistance in disarming the Afghan population are heard, resentments against a U.S. occupying force are likely to grow. What a tough situation.

VAJPAYEE'S ANTI-WAR STANCE

We haven't heard too much in the U.S. media about India these days. India's Prime Minister has increased his stature at home by opposing a potential U.S.-led war on Iraq without U.N. approval. Read Pankaj Vohra's encomium in the Hindustan Times.

SCHROEDER AND THE ECONOMY

For good coverage of German Chancellor Gerhard Schroeder's recent speech in the Bundestag on his plans for economic reform, go to Saturday's NYT piece. Berlin's Der Tagesspiegel takes note of sharp resistance to Schroeder from the left and from unions, but also blames much of the criticism on a sense of insecurity created by his administration's haphazard approach to economic reform. Among the ranks of Schroeder's coalition partner, the Greens, a movement to call a "special party meeting" is afoot to protest Schroeder's plans, which have been supported by Green party leaders in Berlin. Green party members have often been at odds with their leadership, most famously over the question of German participation in military actions in Kosovo. But Schroeder's speech also impressed some members of the opposition, including Horst Seehofer from the CSU (Christian Socialists, the Bavarian version of the CDU), who said, "I'm very satisfied by Schroeder's discussion of social policy." Angelika Merkel, head of the main opposition party (CDU), criticized Schroeder's speech as a repetition of well-known facts and as vague on reform proposals. The Sueddeutsche's commentary faults Schroeder's speech for failing to live up to the hype created by the administration over the past few weeks. The editorial board at the Sueddeutsche also worries that Schroeder's plans will burden weak sectors of society, a worry that is, of course, shared by the leftist tageszeitung. Their commentary? "Germany's newest hope: the sick, the elderly, and the unemployed."

I'll have to ask Bill, my economist friend across the hall, to tell me what he thinks about Schroeder's plans. Bill isn't in the office today, though. He's probably outside on his racing bike. He's smart. The weather here was too nice (in the fifties, sixties tomorrow) to be cooped up inside staring at a computer screen. . .

THANKS

to The Rittenhouse Review and Jeff Cooper for recent links and recommendations!

EX-PRESIDENTIAL CRITICISM OF INCUMBENTS:

Josh Chafetz links to a transcript of Bush, Sr.'s speech and notes that the Times (UK) article (on which I based my vituperative comments yesterday) may have overstated Sr.'s criticism. Josh also wonders whether it's actually been historical practice for ex-presidents to refrain from criticism of current office holders, and whether it's even a good idea for them to do so.

As to the first, there's an article by Thomas Fleming called "Presidents on Presidents" in the November 1992 edition of American Heritage that describes the long history of ex-presidential criticism of incumbents. Washington refrained from such criticisms, and Fleming seems to indicate that public criticism was generally eschewed by ex-presidents until the mid-nineteenth century. But ex-presidents made many criticisms in private that became public, including a series of letters from John Adams to a friend about Thomas Jefferson; the letters were later published by opponents of John Q Adams, in an attempt to derail his presidential bid.

On Franklin Pierce's criticisms of Lincoln:

Like Buchanan, Millard Fillmore and his successor, Franklin Pierce, are remembered today chiefly for their timidity in handling the slavery issue. But when Civil War finally resulted, neither man was timid about expressing his opinion of Abraham Lincoln. Pierce was particularly vehement; the climax of his opposition came on July 4, 1863. At a five-hour rally in Concord, New Hampshire, he assailed Lincoln, denounced the war as an attack on the Constitution, and ended by virtually urging his fellow Democrats to launch a Northern insurrection.

While Pierce was speaking, the news filtered through the crowd that a great victory had been won at Gettysburg. The speech became a political humiliation from which the former President never recovered.

On Teddy Roosevelt's criticisms of Taft (poor Taft!):

But Talt's concept of the Presidency turned out to be utterly opposed to Roosevelt's. By January 1912 TR decided that Taft must go and he himself ran against him as the candidate ol the impromptu Progressive party. In the course of the campaign TR called Taft a "puzzlewit" and a "fathead." Taft called his erstwhile best friend an "egotist' and a "demagogue." Roosevelt, convinced he had found his moment in history, seemed unvexed by these exchanges, but one reporter told of finding Taft, alter a speech damning Roosevelt, slumped with his head in his hands, weeping.

On Ike's criticism of JFK:

When Dwight Eisenhower left office, in 1961, he was unimpressed with the man elected to succeed him, and he stayed that way for the next two years. He thought Kennedy's show-business friends sullied the dignity of the White House, and he was appalled by JFK's deficit spending. In 1963 he wrote a magazine article violently attacking the idea. Deficit finance, he warned, "through history has lured nations to ... economic disaster." Ike liked to repeat the old saw "You can always tell a Harvard man, but you can't tell him much."

In addition, at a speech in a San Antonio middle school in October, 1993, George Bush, Sr. criticized Bill Clinton for mucking up the Somalia operation. The following quote is from a newspaper story dated Oct 15, 1993, by Sandy Grady, called "Bush throws stones from glass house.".

``What's the mission? In the Gulf it was to get Saddam out of Kuwait ... Then you got to know how they're going to do it ... Then you've got to know how they're going to get out of there.''

Bush said his humane approach _ feed starving Somalis until United Nations peacekeepers took over _ was being scrambled.

``They (U.S. troops) took food in. They weren't fighting ... I just hope the mission doesn't get messed up now, that we get into an equation where we don't know the answer to those three questions.''

No awestruck kid raised a hand and said, ``Now wait a minute, Mr. Ex-President ...

Bush had apparently promised to refrain from criticism of Clinton "for one year." The year wasn't quite up.

As to the second point, it seems to me that Josh is right to argue that ex-presidents shouldn't be muzzled; they may have wisdom to share, after all. The quotes above don't clearly tend in the direction of showing that ex-presidents are productive or wise in their public criticisms, however. But whatever you think about that, it seems to me (and, I gather, to Josh) that the fear of ex-presidential criticism of incumbents is based on a weird political sociology: that public criticism is unseemly because it is undignified, and, ultimately, will lead to a loss of public respect for the current commander in chief. I don't buy it.

ON FIFTH COLUMNS AND CAUSALITY

Eugene Volokh contends that the following paragraph means that Le Monde's London correspondent believes that fear of "domestic conflagration and terrorism" is a motivating factor in Chirac's opposition to a war with Iraq. He also argues that the apparent fear of this large immigrant population indicates a mistake in France's immigration policies. Here is the paragraph in question (from this article):

Let's be clear: Mr Chirac does not endorse Baghdad, and he finds Saddam's regime as despicable as do Bush and Blair. But he fears the American hawks will ignite Muslim fundamentalism worldwide. The fear of domestic conflagration and terrorism are also ever-present: there are 6 million French Muslims to take into account.

The paragraph can be given another meaning that is less ominous and more reasonable. First, given that the French position is that war in Iraq is not justified under the present circumstances, it's not surprising that the correspondent would focus on an immigrant population that might have especially strong views regarding a war that is already seen as the product of American intemperance and desire for domination (or Protestant "intolerance" as the correspondent puts it), and that these views might lead to violent reaction. If you already believe that the American position is wrong, it's not surprising that you would look to folks who might have an especially intense preference in the matter. [Relatedly] It seems to me that the American press systematically underestimates the force of the common "one million dead Iraqi babies" argument that places blame for massive harm in Iraq at the feet of American policies.

If France wanted to colonize Algeria again, for example, presumably violence would ensue from many quarters. Some of that violence would no doubt be "domestic conflagration and terrorism." But the French don't want to colonize Algeria, because they think, I assume, that it is wrong to do so. And French reluctance to support another country's colonizing efforts would suffer from the same problem. The French have embraced both the policy of non-colonialism and the immigrant populations that would have an especially strong view on the matter.

But another point is worth making. In Lockean liberalism, at least, there is a deep relationship between ideas of tolerance and the expectation that people will rebel if they feel oppressed. Whatever moral arguments one might also marshal in favor of it, religious tolerance, for Locke, is simply prudent policy because intolerance leads to violence and instability. It strikes me as an entirely reasonable claim to say that domestic populations with intense preferences (in this case, preferences that arise out of a feeling of commonality) should be taken into account in policymaking, and that at the end of the imagined chain of causality one needs to be concerned about whether or not those populations will engage in violence. And, again, if you already believe that those groups have the moral high ground, it's not extortion. The question, I guess, is whether you believe that the policy in question was chosen before the revelation of the intense preferences of the immigrant group. The article seems to show that the author believes that Chirac's "visceral" opposition to the "clash of civilizations" is pretty fundamental to his outlook here.

I guess that Eugene's real target is the claim that France has the "moral high ground," which he believes France couldn't have if Chirac felt that he was making his foreign policy decisions under the shadow of violence. This is true only if you think that "the moral high ground" necessarily means a position that is free of individual interest. By that logic, a judgment that religious toleration is the moral high ground is faulty because one of the arguments advanced for toleration is a prudential one (see above).

FUNNY, BUT I WON'T TRANSLATE ALL OF IT.

I really shouldn't go here, but it's the end of a long week. According to a Zeit interview with Frank Brandstaetter, the director of the Dortmunder Zoo, orangutans benefit from watching movies. Pornographic movies in particular. Seems that captive orangutans don't know that much about the birds and the bees; showing dirty movies helps teach them what to do and also gets them in the mood.

At the end of the interview, Die Zeit's Sabine Etzold asks the following question (which I give below, with the answer):

ZEIT: Koennten Pornos auch andere Tiere anregen, etwa Pandabaeren, die ja chronische Paarungsprobleme haben?

Brandstaetter: Nein, solche Tiere reagieren nicht auf Bilder. Nur Menschenaffen haben die gleiche Sichtweise wie Menschen. Die Augenstellung ist etwa gleich und die Qualitaet des Auges auch. Wir haben einmal einer alten Orang-Utan-Dame das Leben verschoent, die allein in ihrem Kaefig sein musste. Damit sie sich nicht so langweilte, haben wir ihr einen Fernseher vor die Anlage gestellt. Den hat sie sehr geliebt. Am liebsten hat sie MTV geguckt.

Zeit: Is it possible that pornographic films could also excite other animals, such as panda bears, which have chronic problems with mating?

Brandstaetter: No, such animals don't react to pictures. Only primates have the same kind of vision as humans. Primate eye position is pretty similar, and the quality of the eyes as well. Once we really improved the life of an elderly orangutan female, who had to be alone in her cage. In order to keep her from being bored, we put a television where she could see it. She loved that. Her favorite show was MTV.

Brandstaetter claims that its common knowledge among experts that porno films stimulate orangutans. He couldn't give a precise reference, however. There's a research project for you!

BUSH SR., "LIBERAL FOOL"?

Check out the characteristically brilliant post by Adam Felber. Felber links to a story from the Times (UK) on George Bush, Sr.'s pointed criticism of his son's foreign policy moves as of late. At the very least, this story should silence those conservative pundits who have rolled their eyes and stormed about in shock and anger after Clinton and Carter weighed in with their worries regarding GWB's bull-in-the-china-shop approach to international alliances. Many talking heads on the right (such as Laura Ingraham) seem to think that former presidents should just keep a decent silence when they are out of office. For example, the eternally piqued Powerline has this to say about Clinton and Carter:

Why do liberal fools like Bill Clinton and Jimmy Carter feel free to breach the elementary rules of decorum that have constrained our earlier ex-presidents?

Add Bush, Sr. to the ranks of liberal fooldom.

I'm glad that Carter, Clinton, and now George Bush, Sr. have refused to take Powerline's awful advice.

Did I miss something, or is Adam Felber right in claiming that Bush, Sr.'s speech wasn't covered in the American press? Liberal media my foot!

FRANCE MEETS CONGRESSIONAL MOVES

with profound silence, so far. While members of Congress are tripping over themselves, as well as over the Congressional cafeteria menu and the bodies of WWI vets, to prove themselves more anti-French than the next person, the big Parisian papers (Figaro and Le Monde) seem not to have noticed. Instead, their reporters are doing an excellent job discussing the contours of our debate over war.

Le Monde's Eric Leser has an excellent article on the intersection between war sentiment and evangelical religion in Austin. His basic thesis is that evangelical churches (and the Southern Baptists) support war, but that more moderate churches are more hesitant. In addition, Leser discusses the scope of antiwar opinion at UT-Austin.

Figaro has been running a wonderful series of in-depth articles on war sentiment in various American communities. They began with Louisiana and Mardi Gras, moved to Texas (with a fine discussion of the impact of war sentiment on the muslim community there), and then discussed Arizona yesterday. Le Figaro also has a rather sardonic piece on the way that K-mart has responded to war sentiment in its Easter candy selections.

My sense of things is that these papers are looking in the right place for an interesting story. The anti-French faction in Congress thinks that it will increase its electoral chances by bashing the French in silly and petty ways. It seems to me that their behavior is a curious mix of populist appeal and Washington isolation.

LOTT: I'M SORRY, AGAIN!

See the post at Smythe's World on Lott's apology for Republican treatment of Clinton's judicial nominees. I like "Smythe's" suggestion: get renominations for two Clinton nominees (per circuit) who never came to a vote because of Republican obstruction, in exchange for a Dem vow not to filibuster Bush's choices. Somehow I doubt Bush (Mr. "Don't Bargain Yourself Down') would agree to this, though. Plus, Republicans are in a winning spot here: if the Dems continue to obstruct, they can force the Dems to expend political capital, paint them as obstructionist, keep the courts understaffed and hence less effective, and continue their partisan shade of constitutionality all at the same time.

ESTRADA AND TRADITIONS

See Sam Heldman's posts on Senate traditions and the Estrada debate here and here. Sam underestimates the protean nature of the Republican argument here: first it was that filibustering judicial nominees as such was unconstitutional and untraditional (because it imposes an extra supermajority and had never been done before), then it was that a partisan filibuster was untraditional, then it was that a filibuster of an appeals court nominee was untraditional. Now, the final (unstated) argument seems to be that a successful partisan filibuster of an appeals court nominee is what's untraditional and dangerous. I doubt that Republicans really care about what's really traditional or not.

One shouldn't underestimates the force of and purpose of Republican rhetoric here. The Republicans are employing one of the weapons that they always employ against Democrats: the patriotic high ground of support for good tradition (as distinguished from the equally valid patriotic high ground against bad tradition, which the Dems like to invoke). The ability to invoke this argument is important for Republican claims here but not essential: other lines of Rep attack include the "going against the will of the majority" argument (used or implied in all the claims that Dems are a minority party in the Senate), and what I'll call the "Democrats want crappy judges" argument (used to justify current Republican judicial choices as inherently more constitutional than Dem choices).

Attacking any of these arguments individually will never be enough to make a case for a new nominations process, or at least a case that would be persuasive to Republicans. The [Republican] partisan gains to be had for attacking on all fronts are just too great. In fact, Dem obstructionism here will probably produce partisan gains for Republicans, since Presidents are usually better at framing debates than the many-headed Congress.

The best way to change the nominations process would be to start pushing for constitutional changes such as ditching life tenure for judges. The transaction costs here are high. But only something radical like that will actually circumvent the partisan incentives here, it seems to me.

FIRST CIRCUIT REJECTS CHALLENGE TO WAR

The First Circuit did not bring any surprises to the table in its ruling today rejecting claims by some members of the military, their families, and some members of Congress, that the courts will not intervene to answer the question of whether Bush's push for war absent an explicit congressional declaration of war is constitutional. Read the opinion here (link via How Appealing). The First Circuit based its ruling 1) on the contention that the issue was not "ripe," meaning, at least, that there is no war yet, and 2) on the contention that the October joint resolution doesn't clearly delegate warmaking powers to the president (and the nature of war powers -- that they're shared -- is arguably reflected, rather than ignored, in the resolution and all the joint Congressional and executive dealings on Iraq).

One minor detail that is of some interest is the First Circuit's appropriation of Bush v. Gore as an example of a case where the Supreme Court could have applied the political questions doctrine, but didn't even address it and instead went straight "to the merits." The First Circuit focuses here on Rehnquist's concurrence and its discussion of the division of power between state legislatures and state judiciaries. In the context of a case in which the First Circuit is explicitly disavowing any power to decide the present case, the reference to BvG seems like a subtle dig at the Supreme Court. But maybe not.

I discussed Doe v Bush earlier, if you're interested, here.

PRESIDENTIAL WAR POWERS AND "STRICT CONSTRUCTION":

Over at Outside the Beltway, Jim Joyner has some doubts about the constitutionality of President Bush's attempts to go to war in Iraq without a Congressional declaration of war. But Jim thinks the war is a good idea, and since war powers have been migrating to the executive branch since the late eighteenth century, he argues that historical practice is on Bush's side.

Last week I posted my own thoughts on the immediate case that Jim is discussing, Doe v. Bush, which has now been heard at the circuit court level. I want to insist on a narrower point right now: Bush's stance here is in tension with his professed attachment to "strict construction." In fact, Bush's claims of broad executive powers here show the strategic nature of his constitutional arguments in the Estrada nominations battle as well.

At the very least, "strict construction" popularly is understood to mean that one should view the constitutional grants of power narrowly and seek to limit those arguments that would find broad grants of authority for the courts to expand constitutional rights to fit new situations. In reality, I guess, people say "strict construction" when they mean "anti-Roe v. Wade" or "anti-activist judges who use the due process clause of the 14th A to find so-called 'new rights.'" And if the argument didn't go beyond that, I suppose there's no real contradiction. The interpretive norm that would be applied according to this view of strict construction (certainly the view that people understood Bush to be aiming for when he was on the campaign trail) would be the following: the Constitution should not be read to require protection for the choice to abort. Perhaps more directly, this interpretive norm would mean: judges should be chosen according to whether or not they will rule in favor of abortion rights. If they would, then they are not "strict constructionists" and should thus be rejected as nominees to the federal bench. Any attempt to make a broader statement about Bush's approach to the Constitution as such would be misguided.

But we are certainly entitled to ask why strict construction should be a rule for interpretation when thinking about abortion rights (and about the judicial role with respect to abortion rights, and with respect to the rules that should govern the judicial nominations process) but not a rule when applied to executive powers. We know the answer, and the answer is politics: first comes a concern about abortion, or a concern about runaway "unelected judges," then everything else. Bush, after all, is the President, and he can be expected to push for as expansive a view as possible of executive powers. I realize that you can't expect a commitment to "strict construction" itself to do the work of prioritizing these commitments; the ranking comes partly from Bush's constitutional place, partly from party politics. And Bush's constitutional place is decisively determined by several factors that are a result of profound changes in the nature of executive and military power since 1787: a standing army, an increased role for the U.S. and for the U.S. military in world affairs, the development of political parties, and, more particularly, the reaction against congressional complaints against an imperial presidency (and Nixon). This is, however, precisely the point: approaches to constitutional interpretation are not conditioned by principles of constitutional interpretation in the first instance. Rather, the choice of approaches is determined by politics. And if the choice of an expansionist view of executive power is determined by one sort of politics, I see no good reason why a choice of an expansionist view of judicial power to enforce emerging rights claims shouldn't also be determined by another sort of politics. It's impossible to find a way out of this bare clash of political views within the terms of strict construction alone.

You might say that the executive and the judiciary have different constitutional roles, and that those roles require different approaches to the question of constitutional interpretive approaches. An expansionist president might make more sense than an expansionist judiciary because the president is electorally responsible to the populace in a way that judges are not. But this judgment is shaky: courts are also responsive to public opinion, albeit in more subtle and indirect ways (especially through shifts in judicial membership caused by shifts in party control). And the current partisan nominations deadlock shows another way that courts can be punished: through congressional inaction, which causes a shortage of personnel and a backlog of cases. This deadlock probably favors the status quo in ways that might be constitutionally defensible, but probably not in all cases (where, for example, due process rights are harmed through the inability of appellate courts to exercise effective review in criminal cases). And the idea that electoral accountability matters for choices of constitutional approaches is, itself, a pretty fancy theory that requires some work to defend.

The situation gets more confusing when you compare Bush's expansionist approach to the war powers with his (and Senate Republicans' and the Republican punditry's) insistence that the Senate minimize its role in the nominations process. According to Bush, the Senate is "shameful" if a minority party blocks the nominations process with a filibuster; Senate Republicans, as well as such luminaries as George Will and Rush Limbaugh, floated the argument that a filibuster in judicial nominations is unconstitutional. Now it seems to me that "strict construction" done by a dispassionate observer would find that the Senate is perfectly within its rights here: it has the constitutionally enumerated power to create its own rules. There might be some implied limitations on those rules, but they're not immediately obvious, and, as they say, if the framers had intended there to be more explicit limitations on the rules, they certainly could have spelled them out. The idea that a 2/3 majority is required for advice and consent for treaties (not a big winner nowadays anyways!) hardly implies that a supermajority is not permissible in other contexts. Again, a dispassionate strict constructionist, if he or she existed, would be hard pressed to make a consistent argument here. Unless you adopt a rule, as part of the idea of strict construction, along some line as the following: when discussing decision procedures, a bare majority is required unless a supermajority is explicitly required. For my money, I can't see how you can get to that rule without an argument that is bound to be "non-strict constructionist" and pretty fancy to boot.

But the pressure on the Senate to abandon the filibuster really comes from an expansionist concept of presidential power, combined with an idea about the presidential mandate and a mandate from 2002 for Republicans to put whomever they want on the court because they got a non-cloture proof majority in the Senate, combined also with a widespread critique of judicial power. All of these positions are certainly tenable. But the more you're forced to defend them, the farther you travel away from any principled defense of "strict construction," unless all the phrase means is "judges shouldn't be pro-choice, the executive should be strong, and the president's party in the Senate should basically defer to his judgment in judicial nominations." If that's all the phrase means -- which is really likely -- then it's just a controversial matter of political choices, not some sort of founder-inspired vision of the correct constitutional order.

MEXICAN PAPERS HAVE PICKED UP BUSH'S THREATS

Mark Kleiman says that he would imagine that folks in Mexico have picked up on Bush's recent remarks darkly hinting at popular reprisals against Mexican-Americans if Mexico doesn't go with the U.S. resolution on Iraq. Indeed. The basic response, however, has been to record and downplay the threats.

The conservative El Economista claims that the remarks were merely a hardline negotiating tactic -- but they believed that Bush said them and meant to say what the reports claim he said, pace the Conspiracy. El Norte records the remarks here and here but doesn't comment on them extensively.

The Mexican press has picked up on these comments already. I haven't seen any extensive reporting of the Administration trying to correct a perceived misunderstanding.

Could it be that there isn't much need for comment because few in Mexico are seriously shocked at the idea that Mexican-Americans could be the targets of anger and abuse in the U.S.? Just a thought.

DAVID DUKE, FOREIGN POLICY EXPERT

Look at the anti-Israel article he published in Pakistan's Balochistan Post. Almost enough to make you pro-war, as in, "if David Duke is anti-war, does that mean I'm objectively pro-David Duke?" I hope not. Thanks to the Blue Goldfish Cafe, an interesting selection of daily news pieces, for the link.

JOURNALISTS LOSE CASE IN GERMANY

The German Constitutional Court ruled today that police can use information from journalists' phone calls to capture suspects. I gave some background on this case last year, here. According to an article in Berlin's Tagesspiegel, here, the main justification for the court's nod in the direction of police investigative tactics was the nature of the crimes involved: one of the prisoners was wanted for terrorist acts (that lay 30 years in the past) and another was wanted for various kinds of fraud. In addition, the court said that there was little dispute about the evidence that these individuals were, in fact, involved in serious crimes and that the journalists were, in fact, in contact with these individuals. The ruling seems to be fairly narrow: only in cases where the identity of the individuals is clear, and the evidence against them is great, can the police use this kind of information.

One nice thing about the German Constitutional Court is that it provides press releases, complete with copies of the relevant statutes. Of course, that makes the Court seem less like the cryptic Voice From On High and more like another policymaking body. I'm all for that.

"ONCE THERE WAS SOMEONE TO LOOK UP TO"

That's the title of an obituary for American global leadership in the Suedeutsche Zeitung. According to the Sueddeutsche, the French, Russians and the Bush administration were not really that far apart in terms of their concrete goals for Iraq: "disarmament, a final deadline for Saddam, combined with the credible threat of the use of force." This argument is quite foreign to members of the mainstream American media of late (many of whom, like George Will, have gotten lost in the maze of self-righteous and shrill denunciations of French obstructionism). The Sueddeutsche's broader point is worth listening to, however, so I will quote the final sections of the editorial and then translate, roughly, below:

Die Unfähigkeit Amerikas zum Kompromiss und zum Dialog hat ihre Ursache in der Ideologisierung der Außenpolitik. Ideologien lassen selten Raum für Zwischentöne. Aber Außenpolitik, vor allem die in den Zeiten vor George W. Bush betriebene realpolitische Interessenspolitik der USA, braucht die Unschärfe, die Zwischentöne. Die Show-Down-Strategie im Sicherheitsrat verzichtet nun auf den Spielraum, sie lässt lediglich Platz für die Bush-Doktrin: Entweder ihr seid für uns, oder ihr seid gegen uns.

Der amerikanischen Außenpolitik ist damit ihr höchstes Gut verloren gegangen: die Legitimität ihres Führungsanspruchs. Man mag darüber streiten, ob ein nach dem Zweiten Weltkrieg geformter Sicherheitsrat Legitimität vermitteln kann. Im Kosovo etwa handelte das Gremium nicht, und dennoch war die von den USA angeführte Militäraktion legitim, weil nur so ein weiterer Völkermord auf dem Balkan verhindert werden konnte und weil die Obstruktions-Front aus niederen Motiven handelte.

Jetzt aber fehlt den USA diese Legitimität. Selbst eine Befürworter-Koalition aus neun mehr oder weniger gedungenen Staaten würde daran wenig ändern. Washington verdankt die demokratiestiftende und koalitionsbildende Rolle seiner Kraft als Vorbild. Wer Vorbild ist, der schafft sich Legitimität. Diese Kraft wird mit der Kriegsentscheidung verloren gehen.

American inability to reach for compromise and dialogue is caused by the current ideological nature of its foreign policy. Ideologies don't allow room for tones "in between." But foreign policy, especially the kind of real-political policy of interests that was pursued by the U.S. before George W. Bush, requires fuzziness, tones "in between." The strategy of "show down" in the Security Council renounces room for manouver; it only allows for the Bush Doctrine: you're either for us, or against us.

American foreign policy has thus lost is most important possession: the legitimacy of its claim to leadership. One can argue whether or not the Security Council, formed after WWII, can still act in a legitimate fashion. In Kosovo the body didn't act, but the military action led by the U.S. was still legitimate, because only through such an action could further genocide in the Balkans be prevented, and because those who obstructed the action had only low motives.

But now the US has lost this legitimacy. Even a supportive coalition made up of states that have been more or less employed for the purpose can not change this fact. Washington had power as a model [i.e., the U.S. was a country to look up to] because of its democracy-creating and coalition-leading role. When you act as a model for others, you create legitimacy. This power will be gone once the decision for war is made.

In the echo-chamber of punditry (both on-line and in the broader media), these arguments have been lost. The U.S. has renounced the moral authority of its leadership. Witness, for example, the sneering retorts to those who argue that a doctrine of pre-emption is not a wise policy here -- not, in limited and clearly defined cases, pre-emption itself, but a trumpeted doctrine of pre-emption. There's a big difference! If I remember the story right, even Henry Kissinger saw that there was a big difference here.

The usual response is twofold: Israel blew up a nuclear power plant in Iraq, and, at any rate, the rest of the world is going to do what it wants regardless of whether or not we invade Iraq. I fail to see how these claims -- the Israelis preempted when there was a clear case of a danger to them, and we don't have a leadership role anyways -- help to meet the criticisms. We can't simultaneously gloat over the attachment of the "new Europe" because of our "commitment to freedom" and argue that others will not take cues or inspiration from the uses to which we put our power. And the existence of a nuclear power plant next door is hardly the situation that faces the U.S. in Iraq. Israel didn't have ambitious plans that it was going to occupy Iraq, save the Iraqi people, install generals as leaders of a new military government there, and democratize the country. Note carefully how Bush advisors and war defenders shift the terms of the debate, whenever the evidence of Iraq's danger to the U.S. becomes shaky, to the questioner's apparent lack of concern for the welfare of Iraqis, a subject we didn't hear a heck of a lot about from the administration either during the presidential campaign or before the WTC and Pentagon attacks. See, for example, Richard Perle here. (link via Atrios). The parallels with our arguments in favor of saving Vietnam from Ho Chi Minh are too stark for my taste, to be honest. Vietnam is not irrelevant here, even if the desert war is likely to be very different from the nasty war of attrition in Vietnam.

OH WELL

Looks like my suggestion that Joe Torre (shown here carrying what could easily have been the torch of freedom and democracy) should lead American efforts in a post-war Iraq has gone unheeded. What can I say. Like pearls before swine. . . Link from the ever-vigilant Smythe's World.

LINCOLN, INTERNMENT, AND THE WAR ON TERRORISM

Over at Oxblog, Josh asks whether a case can be made that there has been a steady trend of improvement in restrictions on civil liberties during wartime since before the civil war:

My sense is that curtailment of civil liberties in the war on terror has been relatively minor, continuing a trend that dates back at least to the Civil War. The internment of Japanese-Americans during World War II was atrocious, but it wasn't on nearly so grand a scale as Lincoln's suspension of habeas corpus. And the USA Patriot act is certainly no internment order. And what's interesting is that, in past wars, there has been no slippery slope -- the curtailment of civil liberties really has ended when the war did.

I don't think it's really possible to make this case, so I would also be interested in any argument that tries to make it. Here are my doubts and concerns:

• I'm not sure what the relevant comparisons would be. "Amount of freedom" curtailed? How do you measure freedom? Number of people detained? Number of people detained multiplied by duration (a kind of person-days behind bars measurement)? Number of people detained for transparently unjustifiable reasons? Number of people detained for reasons that were publicly controversial at the time? Number of people detained away from any identifiable theater of operation? It seems to me that you would first need to make a choice about what you're comparing.


• The problems with Lincoln's policies are often overstated, and the problems with internment are often understated, albeit usually by different people. A recent book by Nancy Chang called "Silencing Political Dissent" contains the following short description of Lincoln's policies:
  

  At the start of the Civil War[. . .] Lincoln unilaterally suspended the writ of habeas corpus. As a result, tens of thousands of civilians suspected of being disloyal to the Union cause were detained by the military without charge. (37)

  
  Chang is trying to warn us of the danger that we will fall back into what she considers traditionally American habits of attacking dissent during wartime. But Chang overstates her case. As Mark Neely points out in his Pulitzer Prize winning book The Fate of Liberty: Abraham Lincoln and Civil Liberties (see David Greenberg's discussion here), the number of people detained throughout the war is higher than 13,000, but we can't know for sure because of a variety of factors, including the confusion of war and the difficulty of interpreting fragmentary records. But the numbers don't answer the most important question: who was detained and why. In one typical passage, Neely speaks of "draft evaders, suspected deserters, defrauders of the government, swindlers of recruits, ex-Confederate soldiers, and smugglers" (136-7). Neely's most important conclusion is that the crackdown on dissent that is supposed to have occured during the Civil War in fact never happened. As far as I can tell, Neely's conclusion is that the restrictions on civil liberties that occured during the war were more due to the nature of the war than to a specific government policy, and, in fact, there was much less harm to civil liberties than ordinarily supposed. Border states had more detainees than states away from the fighting. Newspapers were not systematically targetted, and on the rare occasions that newspapers were shut down, orders were usually rescinded because of public outcry, or the newspapers had been engaged in activity that caused genuine concern on the part of the army (one instance, that of the New York World, involved fake calls for the draft, which led to fears that union telegraph lines had been compromised; in fact, the fake notices were part of a scheme to make money off of fluctuations in gold prices). The image of union soldiers picking up "suspected disloyals" in the middle of the night, an image that Chang invokes, is an image from our cultural depictions of modern totalitarianism, not an historically accurate depiction of what happened under Lincoln.
  

  Compare that record with the record on internment during WWII: the detention of over 110,000 citizens and aliens, on the basis of race, against the advice of police and intelligence advisers in the affected communities, and for reasons that were not openly admitted to at the time (or after), from 1941 - 1947 (note the latter date, as well). It seems to me that internment was a more fundamentally repressive action than anything Lincoln did. I say that even though I'm not quite sure how you measure "amounts of" repression. If you want to be reminded of the magnitude of internment, the deceptive justifications offered, and the continuing relevance of the issue, go to Eric Muller's excellent blog that is mostly devoted to the subject.



• I agree that there has been some progress with respect to civil liberties during wartime, but I see it more as the result of the 1960s and judicial solicitude for dissenters and dissenting speech, a tradition that began only in the mid-twentieth century. Even then, if you were communist in the Cold War home front of the 1950s, judicial solicitude didn't always come down in your favor. And this judicial tradition has come under heavy attack by more conservative judges and scholars since then, not to mention from powerful political forces such as the "strict constructionist" wing of Reaganite and post-Reaganite conservatism. So, progress or no, it's not clear what we'll get nowadays in terms of judicial and political opposition to civil liberties restrictions. Just look at the deference on the 4th Circuit, for example.


• Which brings me to my fourth doubt: we are just at the beginning of the "war on terror." This administration has made the war on terror its principal focus. And given what we already know about the experiences of other countries with terrorism (Israel, German, Italy, Spain, etc., as well as the U.S. itself: when was the Antiterrorism and Effective Death Penalty Act enacted? We've been at war against terrorism for some time now already) -- given what we already know about wars on terrorism, we should expect to be in a war on terrorism for a long time, perhaps for as long as any of us is alive. Recently civil libertarians have floated the argument that the likelihood of a long war on terrorism means that we should be especially careful about current attempts to restrict civil liberties. In other words, any sentiment informed by historical optimism is probably not very prudent.

CHAVEZ AND THE COURTS

Venezuelan President Hugo Chavez renewed his call for reforming the country's judiciary on Monday. An article in El Nacional has a few paragraphs of descriptions of fairly harsh rhetoric. Attempts to gain more control over the judicial system (under the name of rooting out corruption, however seriously needed in many cases) have marked the Chavez regime since its inception in 1999.

VARIOUS AND SUNDRY NOTES

Right now I'm hard at work on a paper for the Midwest Political Science Association meeting in Chicago at the beginning of April. The paper is turning out to be a defense of partisanship in constitutional law. I'm happy to send a draft to anyone who'd like to see the argument. Just send me an e-mail.

Right now I'm going to brave the bitter cold, go to the library to pick up a copy of Robert Mason's Chickenhawk (along with Arthur Bentley's classic pluralist analysis of government, and Dennis Chong's work on collective action in the civil rights movement). You can read a sample few chapters of Chickenhawk at the linked site. I strongly recommend it, especially for those who are arguing for a broader democratizing role for the U.S. military.

Other possibilities for reading over dinner tonight: March 10th New Yorker, with Simon Schama on anti-americanism throughout history, and Jane Mayer on the Lindh case. Plus, since we've started talking about obscenity this week (and I realized that I like Warren's concurrence in Roth), Eric Schlosser's essay on porn king Reuben Sturman should be interesting. [I meant to write: we've started talking about obscenity in my civil liberties class this week.]

If you haven't seen it yet, go read Deborah Sontag's NYT Magazine piece on the 4th Circuit. If you're happy about what you see there, you'll be happy with Bush's judicial nominations. If not. . .well, vote Democrat in 2004. And 2006. And 2008. . .

[note: Chickenhawk, the memoir, is not about members of the current administration who avoided military duty but are now convinced of the necessity of war. Rather, it is Robert Mason's autbiographical account of his tour of duty as a chopper pilot in Vietnam. A little realist writing on war helps to put things in perspective.]

CARLOS FUENTES IS ANGRY

Read the El Norte article here. Fuentes was so angry that he compared Bush to Hitler. PRI is not too happy, either. And the Mexican Secretary of Commerce, Fernando Canales Clarinond, has to state publicly that he doesn't think that the U.S. will engage in economic retaliation against Mexico.

Do you know what the topic is here? If not, go to this opinion piece in the Arizona Republic, and Jack Balkin's comments on Paul Krugman's NYT article from Friday.