IRONIC

The title of this sad piece by the editor in chief of the Washington Times is strangely apt, although not in the way that Pruden intends, I'm sure.

Yup. Editor in chief.

(link via No Left Turns)

RELEVANT, AND NOT

This article by Josh Marshall shows why the genre of the editorial, informed by good journalism, is still relevant.

This post shows why parables are still relevant. Surprisingly, perhaps, it makes much of the same argument as Marshall's piece.

This story shows why Joseph Heller is still relevant.

And everything going on at the Corner this week (and more surprisingly, No Left Turns -- those folks are usually more level-headed) shows movement conservatives verging on irrelevance. You don't have to agree with the administration's critics to wonder whether memos supporting torture might be worth some thought. Instead, we get a more aggressive version of this week's wall-to-wall television coverage of Reagan.

Nothing against state funerals, but this one is a bit too imperial for my taste. I'll wait for Carter's funeral to brave the tourist lines and pay my respects, may that day come a long time from now. (And at any rate, one of my toes snapped like a piece of dried-up bamboo yesterday when I "took on a wall," as my doctor put it, so standing in line for three hours strikes me as singularly unattractive.)

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PS: The folks at Southern Appeal? Relevant. Relevant. Relevant.

For what it's worth: my thinking on the issue so far is as follows. There is a level at which executive power is unlimited, and to the extent that the DOJ lawyers were attempting to reach that point in their argument, they have a certain kind of point. But that point is very, very limited, much more limited than the kind of argument they seem to have been trying to make.

Under certain hypothetical -- and almost unimaginably bad and unattractive -- conditions, the President should take account emergency situations and act accordingly. Several very important factors limit this power even there, though: first, the President should be constitutionally virtuous enough to face that situation squarely and in public, and to offer a constitutional defense of his or her actions. Lincoln set the pattern here, and the Republicans, as self-acknowledged heirs of Lincoln, should take Lincoln's example into account. (The circumstances surrounding the memo certainly do not indicate that the executive is willing to submit to the requisite publicity.) Prof. Jack Balkin speaks of "political transparency" here, and I think he's right.

Second, and relatedly, the need for political transparency means that the congressional power of impeachment comes into play in emergency situations. Congress needs to have the authority to offer a public defense of its own understanding of the reach of presidential power. In this respect, we should be angry at Republicans (dare I say "Reagan Republicans?") for debasing the impeachment power with their witch hunt against Clinton. If the President is going to have even semi-acknowledged emergency powers, then Congress needs to safeguard its most significant constitutional weapon against a President gone too far.

Third, the fact of the national security state needs to be acknowledged in this discussion. Our current state form makes an expansion of executive power all the more worrisome. What we do not want is a bureaucratization of the emergency situation, but, unfortunately, this is precisely what the DOJ memo indicates. Talk about the conditions for a slippery slope leading into a very nasty abyss!

Finally, as Herman Belz argues with respect to Lincoln, to the extent that the President does act in an emergency situation in a way contrary to established rules of law, such action should never be thought of as a valid precedent in the ordinary meaning of the term. Here's Belz:

In the United States, whose government is based on a written constitution that has a definable meaning and is not completely flexible, measures that depart from existing constitutional rules in the face of necessity do not establish precedents for future departures, regrettable though they may be. Such measures do not prove, or require, that future actions cannot be made to conform to the constitution. This is not to deny that, at a later date and in a different political context, a controversial action or measure can be cited and used as a model for political action. It is obvious, however, that the individual whose action is subsequently taken as a political model has no control over this process of historical appropriation and cannot reasonably be held responsible for measures predicated on his example. To be specific, whether the historical appropriation of Lincoln's wartime measures as a model for subsequent presidential action is politically successful in conferring legitimacy depends on the nature, circumstances, and effect of the subsequent action. (Abraham Lincoln, Constitutionalism, and Equal Rights in the Civil War Era, 42)

Emergencies have to be viewed as unique events. The legal profession and other professional commentators should safeguard that idea. The DOJ memo seems to want to make a valid legal precedent out of emergency situations. That's dangerous.

These are tentative thoughts and I'm not sure what they're worth.

THAT TIME OF YEAR, PART I

The Red Sox have already beaten the Yankees soundly, held first place for a while, and then fallen back into second place with a stunning series of losses to inferior teams. (Yankees fans are already getting cocky. See this fine piece of vintage Yankee-ness from the Staten Island Advance, "Red Sox on Edge of Disappearing Act.") Yep, that's right, it's that time of year again.

I'm reminded of that fact today by an opinion issued by Appeals Court of Massachusetts, Jane Costa v. The Boston Red Sox Baseball Club, No. 02-P-1433. (Available for free through this page; click on "Slip opinions" and then find the case by title.) In 1998, Jane Costa was hit by a Darren Lewis foul ball while she sitting behind the dugout on the first base line. In an opinion written by justice Cohen, the Appeals Court rejected Costa's arguments that the club had not sufficiently discharged its duty to warn spectators of the dangers of foul balls:

Viewing the present case through the lens of the defendant's duty, we are persuaded that the potential for a foul ball to enter the stands and injure a spectator who is seated in an unscreened area is, as matter of law, sufficiently obvious that the defendant reasonably could conclude that a person of ordinary intelligence would perceive the risk and need no additional warning. Even someone of limited personal experience with the sport of baseball reasonably may be assumed to know that a central feature of the game is that batters will forcefully hit balls that may go astray from their intended direction. We therefore hold that the defendant had no duty to warn the plaintiff of the obvious danger of a foul ball being hit into the stands.

. . .In its amicus brief, the office of the commissioner of baseball, paraphrasing Justice Cardozo, justifies this result with the cavalier observation that "the timorous may always choose to stay at home." . . . Perhaps a more gracious approach would be for major league baseball to elect to internalize the costs of unavoidable injuries sustained by fans through no fault of their own. On the theory the plaintiff has asserted, however, we do not so require.

Sounds about right to me.

TWO PATRIOT ACT STORIES

"Sneak and peek" used in the Brandon Mayfield case, here.

Buffalo artist runs afoul of PATRIOT Act, here, here, and here (thanks to Bruce for sending along the first link).

Yes. An artist. And a lawyer. Get your mind around that.

Precisely because international terrorist groups are a threat that require law enforcement resources, we need to worry about these kinds of stories.

Focus.

DOES CURRENT FIRST AMENDMENT LAW ENCOURAGE OFFICIAL "SCRUBBING"?

Listening to the Senate Judiciary Committee Subcommittee on the Constitution, Civil Rights and Property Rights hearing on religious freedom today (here). The title of the hearing is "Beyond the Pledge of Allegiance: Hostility to Religious Expression in the Public Square."

There's a lot of talk about the unintended effects of first amendment doctrine, namely, that the state of the law makes the threat of lawsuits based on the endorsement test or the psychological coercion test credible. According to the story told by Prof. Vincent Phillip Muñoz, this creates an incentive for public officials to attempt to avoid litigation by scrubbing the public square of religious expression.

Two questions. First, is this true, as an empirical matter? My impression is rather that there is widespread resistance at ground level to removing religion from the public sphere. There may be high-profile cases of litigation avoidance, but there are also high-profile cases of local officials thumbing their noses at the perceived overreaching of the Supreme Court. Consider Judge Roy Moore's actions over the past year, for example. So, the question I would ask is: precisely how much incentive does current religious liberty jurisprudence give to local officials to engage in litigation avoidance through suppression of religious expression?

(And as an aside: after listening to Roy Moore, I fear for the sanity of the voters of Alabama.)

Second, throughout the hearing, both senators and witnesses made use of a popular trope in stories about religious freedoms, which goes: well-funded public interest litigators from the ACLU and other organizations ("professionally hostile to religious expression" in one phrase from one of the witnesses, I think Muñoz) outgun defenders of religious expression. Again, on the level of actual data -- funding data, or data on the behavior of public interest litigators -- is this true? Seems to me that I've been hearing an awful lot from pro-religious expression groups such as the ACLJ and the Rutherford Institute recently. (Last week I walked by some nice digs that the ACLJ has across the street from the Supreme Court.) And Congress has helped out such groups with laws as the Religious Freedom Restoration Act and the Religious Land Use and Institutionalized Persons Act (the second a reincarnation of the first, which was struck down by the Supreme Court in the famous case of Boerne v. Flores). RLUIPA encourages pro-religious expression suits.

My sense of things is that the legal landscape has changed over the past decade, as law responds to pressures (not only from Republicans) to include religion in the public sphere. My hunch is that the ACLU as bogeyman story needs to be taken with a heavy dose of salt, and I'd like to see actual data on this question.

UNFORTUNATELY, NOT

Damon Taylor links to this stunning picture and comments: "consciousness trumps combat."

Unfortunately, the picture itself does not reflect that message. According to the caption, the soldier in question is guarding the shrine from religious fundamentalists. Now, it could be that the shrine itself is irrelevant to the attainment of "consciousness," and thus the Thai government is wrong to believe* that force is required to protect that to which the shrine is ultimately dedicated. Perhaps. In a political sense, however, allowing religious bigots to destroy the shrine is not a particularly attractive option. Politics is not itself the highest good, but in some circumstances politics and the use of force help to create the conditions for reflection on what Taylor calls "consciousness."

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* I don't know what the Thai government believes, of course.

EATING CROW, AND SOME OTHER THOUGHTS ON JUDICIAL DEFERENCE DURING WARTIME

Time to eat crow. Last year I wrote these words:

Plaintiffs in terrorism-related cases (where the Executive branch invokes national security concerns) are having a hell of a time trying to get their cases up to, let alone past, the circuit courts. The Supreme Court is not going to hear a challenge to the 4th Circuit's rulings in the Hamdi litigation, for example. The reasons why are partly political, to be sure. Even if the judicial "liberals" on the Court wanted to take these cases -- and they might not -- they'd probably have to reckon with the unlikelihood of the success of their preferred positions. In addition, and more fundamentally, courts generally defer to the executive during wartime.

I was wrong in my prediction that the Court would not grant cert in Hamdi. This issue is significantly more complicated than I said (and thought) at the time. This Court has not been shy about tackling tough policy questions, and its boldness doesn't disappear in the terrorism context. I'll have to think about that some more, especially after the opinions in the detention cases themselves are handed down.

Perhaps the Court will defer to the executive this time around, but I'm less certain about that prediction now than I was last year. The difficulty that arises with judicial deference in the present context is twofold:

1. the administration has advanced very expansive conceptions of its own power, conceptions that threaten to exclude judicial oversight in terrorism cases entirely. Not sure that the courts will (or should) buy that argument as such, and my guess is that the final opinion will be nuanced and open-ended in the face of those particular arguments.


2. the administration has had some severe public relations difficulties recently, some of which involve questions that were asked at oral argument before the Supreme Court itself, as Eric Muller, Phil Carter, and Mark Kleiman have noted. A Supreme Court ruling that simply endorses the administration's claims that it can be trusted not to engage in torture in Guantanamo would probably weaken the Court's prestige at this point. Should the members of the Court care about that possibility? Probably. How should that affect their ruling? Not sure.

FARM SUICIDES

Anita sends along a link to this heartbreaking story from the NYT on Indian farmers squeezed by debt and drought and committing suicide out of desparation:

In the past six years, 2,000 to 3,000 farmers (the state has not compiled an official tally) are believed to have committed suicide in this state, Andhra Pradesh, many of them in this arid district. Fifty to 100 have killed themselves since a new state government took office in mid-May, promising farmers relief.

A help line set up by the government on May 22 had already logged more than 800 calls a week later. Close to half were from this district, most of them fielded by Ms. Pramila.

The template of the calls — dry land and crushing debt — never varied, nor did their desperate tone.

Nine wells failed on 10 acres owned by a farmer named Umapatty, and he owed $4,400 to banks and moneylenders. J. Narayanappa had two dry wells on 20 acres, and owed $5,777. Ms. Pramila took down the details, and promised that an official would follow up.

Most of the suicidal farmers have swallowed pesticides, the easiest killer at hand. Burdened by compound interest, they compound tragedy, leaving families their debts, and depriving them of fathers, husbands and breadwinners.

The Times argues that the farmers are feeling the effects of government attempts to reduce subsidies to agriculture.

DENUNCIATIONS, ETC

Wrote some words on denunciations at Pejman Yousefzadeh's site, words that might seem unkind.

I dislike this kind of discourse: if you don't repudiate some view, then be on notice that you will be associated with that view (at least according to me). I don't approve when folks with whom I agree make that move, and I don't approve when folks with whom I disagree make it, either. It adds nothing to a debate on the issues and it chips away at the conditions for free and open discussion. The short term gains of such a move -- the pleasure of scoring rhetorical points -- are outweighed by the long term communicative distortions produced by it.

Or, as Bush has said, you can't take the "high horse" on a "low road."

Oh well.

If I'm a hypocrite, so be it. I'll try to be better.

LAPPIN

This is the most depressing thing I've read in a while (via Michael Froomkin). Here are the first paragraphs:

Somewhere in central Los Angeles, about 20 miles from LAX airport, there is a nondescript building housing a detention facility for foreigners who have violated US immigration and customs laws. I was driven there around 11pm on May 3, my hands painfully handcuffed behind my back as I sat crammed in one of several small, locked cages inside a security van. I saw glimpses of night-time urban LA through the metal bars as we drove, and shadowy figures of armed security officers when we arrived, two of whom took me inside. The handcuffs came off just before I was locked in a cell behind a thick glass wall and a heavy door. No bed, no chair, only two steel benches about a foot wide. There was a toilet in full view of anyone passing by, and of the video camera watching my every move. No pillow or blanket. A permanent fluorescent light and a television in one corner of the ceiling. It stayed on all night, tuned into a shopping channel.

After 10 minutes in the hot, barely breathable air, I panicked. I don't suffer from claustrophobia, but this enclosure triggered it. There was no guard in sight and no way of calling for help. I banged on the door and the glass wall. A male security officer finally approached and gave the newly arrived detainee a disinterested look. Our shouting voices were barely audible through the thick door. "What do you want?" he yelled. I said I didn't feel well. He walked away. I forced myself to calm down. I forced myself to use that toilet. I figured out a way of sleeping on the bench, on my side, for five minutes at a time, until the pain became unbearable, then resting in a sitting position and sleeping for another five minutes. I told myself it was for only one night.

As it turned out, I was to spend 26 hours in detention. My crime: I had flown in earlier that day to research an innocuous freelance assignment for the Guardian, but did not have a journalist's visa.

Two points about this:

1. I don't know enough about immigration law to understand the ramifications of Section 414 of the PATRIOT Act (cited in the article). Stories of capricious immigration officials and harsh bureaucratic procedures predate the PATRIOT Act, to be sure. The sister of an acquaintance of mine was denied entry to the U.S. in the 1990s because she had kept a diary of money (less than $100, apparently) earned while babysitting as an au pair on a previous visit to the U.S.; an official went through the diary when she landed in the States and then put her on the next flight back to Europe. That's the way bureaucracies work sometimes, and it is unfortunate. But the broader point needs to be emphasized here, despite worries in the professional legal community (and others) that the PATRIOT Act could get a bad rap from civil libertarians. We have reacted to specific terrorist threats in unfortunate ways, and some -- not all -- provisions of the PATRIOT Act reflect that overreaction.


2. Lappin quotes one official as saying:
   

   "Believe me, we have treated you with much more respect than other people. You should go to places like Iran, you'd see a big difference."

   
   This is the dark underside of the obsession with "moral equivalency" that we hear in some corners of public discourse nowadays, particularly on the right. (As a side note, I would love to see a history of this phrase. It's basically baffling to me.) The argument was prevalent in much of the discussion of Abu Ghraib: any attempt to insinuate "moral equivalency" between the U.S. and Ba'athist tyranny is bad. Therefore. . .well, therefore, the abuses in Iraq perpetrated by our men and women in and out of uniform are not as bad as the abuses perpetrated by Saddam Hussein's officials. True enough. Then what? Well, I think that we see a street-level expression of the same view in the quote above. We're not morally equivalent to Iran, so quit complaining. Was the official thinking of Zahra Kazemi? Whatever the case, the sentiment expressed in the quote is quite disturbing. The fact that we're not Iran is supposed to go some distance toward justifying harsh treatment by our officials. Not sure that I'm reading this right, but I think that the implications of the "moral equivalency" arguments do tend in that direction.

The fact that we're "at war" is not an excuse for bureaucratic abuses of the sort described in Lappin's article (with the caveat that the article has to be accurate for this criticism to apply). At some point, the excuses have to run out. And given the basically unchecked power of immigration officials at points of entry, anyone who is suspicious of unchecked power (in the good-old American tradition of such suspicion) should regard the article as plausible -- and disturbing.

MISCOMMUNICATOR

"I remember the year of the pamphleteering. . ."

?

??

And that's just one of the weird lines.

Link via the Poor Man, whose commentary you should read.

SOME FOREIGN PRESS REACTIONS TO REAGAN'S DEATH

Reuters Deutschland: "Reagan honored as great friend of the Germans." A quote from German President Johannes Rau:

"In a divided world, he always held firm to a our common vision of a unified and peaceful Europe."

"In einer geteilten Welt hat er stets an unserer gemeinsamen Vision von einem vereinten und friedlichen Europa festgehalten"

Le Monde: "The man who made the 'evil empire' fall," has a passage on the March 8, 1983 "evil empire" speech at the National Association of Evangelicals:

The traditional diplomats were shocked once more, and for the soviet propogandists of that time, “Reagan the Cowboy” became “Hitler,” the man who could lead the world to war and against whom “reasonable” european leaders must be put on guard. In reality, Ronald Reagan’s anti-sovietism was similar to his domestic conservative ideology: more words than actions, a pragmatism with a variable geometry balanced with an invariable credo. Further, it’s not clear what someone else could have done better in the circumstances of those times. Ronald Reagan made the best out of the hardening of east-west relations during his first term in office, but he had no difficulty dealing with the thaw that followed, which was in some respects the result of his efforts.

Les diplomates traditionnels furent choqués une fois de plus et, pour les propagandistes soviétiques d'alors, "Reagan le cowboy" devint "Hitler", l'homme qui pouvait conduire à la guerre et contre qui il fallait mettre en garde les dirigeants européens "raisonnables". Dans la réalité, il en a été de l'antisoviétisme de Ronald Reagan comme de son idéologie conservatrice à l'intérieur : plus de mots que d'actions, un pragmatisme à géométrie variable compensé par un credo invariant. Et puis, on ne voit pas très bien ce qu'un autre aurait fait de mieux dans les circonstances de l'époque. Ronald Reagan a tiré le meilleur parti de la glaciation des relations Est-Ouest pendant son premier mandat, mais il a aussi accompagné sans difficulté aucune le dégel qui suivit, et qui était d'ailleurs largement dû à son action.

The Globe and Mail: "Reagan recalled as 'friend of Canada's'":

Brian Mulroney told reporters in Montreal that he considers Mr. Reagan, who died Saturday, an "icon."

"Ronald Reagan enters history as an icon and I was honoured to be his friend," Mr. Mulroney said.

"He was also a great friend of Canada's. It was with president Reagan I was able to negotiate the Canada-U.S. free trade agreement which has brought such a great degree of prosperity.". . .

When asked for a favourite moment by a reporter, Mr. Mulroney recalled a moment saved in many a Canadian memory bank.

It was time they got together in Quebec City on St. Patrick's Day in 1985. Mr. Mulroney and Mr. Regan performed When Irish Eyes are Smiling live on stage, a signal of how close Ottawa and Washington had become.

La Prensa (Nicaragua), "Ronald Reagan is dead" [link is capricious]:

Yesterday's death of former U.S. president Ronald Reagan at the age of 93 caused divided reactions in Nicaragua, as his allies in the eighties described him as "one of the great men of the twentieth century," and his adversaries from the same period said that he was the "patron of terror."

La muerte ayer del ex mandatario de Estados Unidos, Ronald Reagan, de 93 años, incitó comentarios divididos en Nicaragua, porque sus aliados en la década de los años ochenta lo catalogaron como “uno de los personajes más grandes del siglo XX” y, por otro lado, sus adversarios de esa misma época dijeron que fue “el padrino del terror”.