"Do parties need philosophies?" Yes

Andrew Sullivan thinks that Democracy in America, an Economist blog, makes a "very important point" in the post below. I think it's nonsense:

...its [sic] odd to see smart people talking as though the set of planks that make up each party's platform are bound together in some coherent way that flows from the two timeless essences of American political thought. It seems equally true to say simply that the mix of positions held by each party is the equilibrium response to the mix adopted by the other. As these debates over party identity show, this isn't necessarily the case in the short term, but the very identity to which purists want to hew is itself necessarily the product of the harsh evolutionary pressures of the electoral system.

"Republicanism" just means "the combination of views that were historically capable of securing a majority often enough to establish one of the two governing coalitions". Juggle the initial conditions—the demographic facts or the issues that are salient—and you almost certainly get a different coalition mix. I understand why one segment of the coalition would be eager to see their own views determine the direction of the party as a whole, but it seems silly to express this in terms of the language of authenticity.

I would submit that since its inception and with a few aberrations the Republican Party, like its Whig predecessor, has stood mainly for protecting the interests of the powerful -- minimizing taxation and regulation, maximizing the police and military power of the state, supporting religious authorities and the "traditional values" they uphold (though in one key contradiction, supporting business interests entails removing restrictions on advertising and entertainment that undermine traditional values).

Promoting business interests have sometimes led the Republicans (and Whigs) to support policies that today would seem more suited to the Democrats: Federal investment in infrastructure, protective tariffs -- and for a season, isolationism. But that's because business interests (real or perceived) changed, not because Republican interests did.

Viewed positively, the Republican party has sometimes stood against excesses in social engineering , taxation and government bureaucracy effected by the Democrats, and at times quite effectively protected and advanced American interests abroad. Or one might say, as Bill Gates has, that Republicans are about supporting efforts to generate wealth, and Democrats about finding ways to share it equitably.

While Democrats, since Andrew Jackson's time, have purported to represent the interests of the less powerful, the great exception is slavery and segregation. At the time the Republican Party was formed, Democrats were more sympathetic to and inclined to treat with the South, and after the War they cemented an unholy alliance with Southern segregationists. I won't pretend to know more about this than I do, but my recollection is that at the time of the Civil War, poor northern whites and their political representatives did not regard the plight of African American slaves as their problem. The Republicans, on the other hand, represented the elite in an economic system that rendered slavery impractical, and viewed slavery (quite rightly) as a hindrance to economic development. And in the case of Lincoln and others, there's a real connection between viewing human beings as free economic agents and viewing them as free, period.

Andrew Sullivan approves of the DiA sentiment, I think, because he does not like to acknowledge that "conservatism" in America -- and probably just about everywhere, in practical terms -- exists chiefly to "save" existing power structures. In a society in which the ruling classes are not purely self-interested, that's not always a bad thing. Some institutions are worth preserving. Burke tapped into a durable truth by warning of the vast unintended consequences of violent or sudden overthrows of existing order. Sometimes, too, conservatism stumbles into conserving freedoms, to the extent that they're part of the existing order or support the existing order. But the notion that conservatism is essentially about protecting liberty by limiting the size and power of government is an ideological smokescreen, at least as far as exercise of power in the real world is concerned. Conservatives want to limit the power of government to redistribute wealth and regulate those who control wealth. When in power, they rarely if ever support limiting government's power to restrict civil liberties or otherwise exercise control over individuals, other than when they're making money.

The Amalek connection: Goldberg protests too much

Jeffrey Goldberg has responded to those who have seized on his report that Israeli Prime Minister Benjamin Netanyahu views Iran as a modern incarnation of Israel's Biblical enemy Amalek by pointing out that Netanayahu never made the equation himself -- an aide told Goldberg that Amalek is the frame in which Netanyahu views Iran. Part of Goldberg's response is directed at Andrew Sullivan, who protested that the Amalek meme indicates little about Israeli intent but is harmful to its public diplomacy. Both Goldberg and Sullivan downplay the significance of God's command to Saul in 1 Samuel 15 to massacre the Amelekites down to the last head of cattle.

Three points in response:

1) Netanyahu may not himself have mentioned Amalek to Goldberg, but Goldberg quoted an aide assuring readers that Netanyahu views Iran as Amalek. He then tied this historically Jewish reflex -- viewing all subsequent enemies as reincarnations of the Biblical bogeys -- to Netanyahu's father's scholarship, the central theme of which he portrayed as the irreducible racial hatred borne against the Jewish people by the perpetrators of the Spanish Inquisition. If readers concluded that Netanyahu views Iran as Amalek, Goldberg bears some responsibility (and credit!) for that.

2) Andrew Sullivan, by emphasizing the damage that the Amalek-Iran equation does to Israel's diplomatic stance rather than what it says about Israeli leadership's unspoken worldview, got the problem backwards (and gave Goldberg the opportunity to focus much of his defense on a red herring - Israel's diplomatic acumen). The whole point of Goldberg's unveiling of the Amalek metaphor is that it gets at the Israeli unconscious.

That's what's so disturbing -- we have the leadership of a powerful modern nation state viewing its enemies in terms of the stylized, moralized victors' history codified in a 2000+ year-old chronicle. Of course Israel is not planning to massacre tens of millions. But atavistic fears underpin Israel's response to current dangers that are alarming enough. And however softened and spiritualized by the rabbis over 2000 years, the Biblical demonization of Israel's enemies remains an important element in Jewish consciousness -- and Israeli action.

3) Goldberg protests:

In any case, this whole debate is a perversion, and not only because genocide is the specialty of other religions, and not Judaism. Iran has called for the elimination of the Jewish state, and seems to be building nuclear weapons that could make that a reality; Israel simply seeks to protect itself from a country that wants to exterminate it. If Israel does strike Iran, it would bomb military targets while trying to minimize civilian casualties. Iran, through its proxies Hezbollah and Hamas, already has a long and distinguished record of murdering Jewish children. There's simply no equivalence here. Yes, Israel does various idiotic and immoral things. But it isn't, even on its worst day, the Islamic Republic of Iran.

All true, to a point. Iran has called for the elimination of the Jewish state, though its leaders always carefully avoid suggesting that Iran itself plans to effect that elimination by military means. But Goldberg here reproduces the endless disconnect -- which I think Ezra Klein pointed out -- between Israel's focus on intent and its Muslim neighbors' focus on action. Yes, Israeli action against Iran would focus on military targets. But it's likelier that Israel will make that attack, and kill hundreds or thousands of Iranians in its targeted strike, than that Iran will deploy nuclear weapons or otherwise directly attack Israel. Israel may indeed try to minimize civilian casualties, while Hezbollah and Hamas directly attack civilians. But Israel has killed a lot more civilians in its struggles with Hezbollah and Hamas than those enemies have Israelis. That's a difference in power, not intent. But Israel's neighbors focus on the body count.

One could counter that the number of Iranian civilians killed by the Iranian revolutionary regime probably outstrips the number of civilians that Israeli armed forces have killed in the country's entire history. I agree with Goldberg that there's "no moral equivalence" between Israel and Iran. But an Israeli preemptive attack on Iran would bring equivalence a lot nearer. And the Amalek mindset makes such an attack a lot more likely.

Sotomayor: no racist, no writer

Two notes on the statement by Sonia Sotomayor that has led to gleeful charges by such champions of equality as Rush Limbaugh and Newt Gingrich that she is a "racist":

I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life.

First: in context, the statement seems to refer specifically to cases of race and sex discrimination. The subtopic was set in place one paragraph above the one in which the controversial sentence appears:

In our private conversations, Judge Cedarbaum has pointed out to me that seminal decisions in race and sex discrimination cases have come from Supreme Courts composed exclusively of white males.

Immediately following the "wise Latina" sentence comes this:

Let us not forget that wise men like Oliver Wendell Holmes and Justice Cardozo voted on cases which upheld both sex and race discrimination in our society. Until 1972, no Supreme Court case ever upheld the claim of a woman in a gender discrimination case.

More broadly, Judge Sotomayer acknowledged that no given individual on the bench should be taken as a representative of an ethnicity, while highlighting research indicating that women and minorities on the bench are more likely to be sympathetic to issues of discrimination. Unexceptionable.

The second point, though, is that Sotomayer is a really bad writer, and it's the sheer opacity of her prose that got her into the trouble noted above. Her broad point in the speech in which she made that statement, delivered at UC Berkeley School of Law in 2001, seems to be that putting more women and minorities on federal benches will make the judiciary as a whole more empathic. Here's how she put it:

Not all women or people of color, in all or some circumstances or indeed in any particular case or circumstance but enough people of color in enough cases, will make a difference in the process of judging.

There's a thought there, and not a particularly complex one. How long did it take you to extract it? Here's more:

This weekend's conference, illustrated by its name, is bound to examine issues that I hope will identify the efforts and solutions that will assist our communities. The focus of my speech tonight, however, is not about the struggle to get us where we are and where we need to go but instead to discuss with you what it all will mean to have more women and people of color on the bench. The statistics I have been talking about provide a base from which to discuss a question which one of my former colleagues on the Southern District bench, Judge Miriam Cederbaum, raised when speaking about women on the federal bench. Her question was: What do the history and statistics mean? In her speech, Judge Cederbaum expressed her belief that the number of women and by direct inference people of color on the bench, was still statistically insignificant and that therefore we could not draw valid scientific conclusions from the acts of so few people over such a short period of time. Yet, we do have women and people of color in more significant numbers on the bench and no one can or should ignore pondering what that will mean or not mean in the development of the law.

What does Judge Sotomayor mean by the question, "What do the history and statistics mean"? Only gradually does it become clear that she's asking whether women and minority judges decide cases in ways measurably different from white men.

On a macro level, the speech is coherent. Sotomayor suggests that as a society we can't simultaneously value diversity and pretend to be completely color blind; specifically we should openly acknowledge the value of diversity on the bench. Similarly, we should recognize that while judges must strive for objectivity, they are shaped by their cultural inheritance -- and in aggregate, women and minority judges will be more sympathetic to the disadvantaged.

But the semantic haze does not allow for much depth of treatment. Sotomayor acknowledges core paradoxes and tensions, but does not get very far in exploring how to balance them. Here's what she has to say, for example, about judicial objectivity:

While recognizing the potential effect of individual experiences on perception, Judge Cedarbaum nevertheless believes that judges must transcend their personal sympathies and prejudices and aspire to achieve a greater degree of fairness and integrity based on the reason of law. Although I agree with and attempt to work toward Judge Cedarbaum's aspiration, I wonder whether achieving that goal is possible in all or even in most cases. And I wonder whether by ignoring our differences as women or men of color we do a disservice both to the law and society. Whatever the reasons why we may have different perspectives, either as some theorists suggest because of our cultural experiences or as others postulate because we have basic differences in logic and reasoning, are in many respects a small part of a larger practical question we as women and minority judges in society in general must address. I accept the thesis of a law school classmate, Professor Steven Carter of Yale Law School, in his affirmative action book that in any group of human beings there is a diversity of opinion because there is both a diversity of experiences and of thought....

That same point can be made with respect to people of color. No one person, judge or nominee will speak in a female or people of color voice. I need not remind you that Justice Clarence Thomas represents a part but not the whole of African-American thought on many subjects. Yet, because I accept the proposition that, as Judge Resnik describes it, "to judge is an exercise of power" and because as, another former law school classmate, Professor Martha Minnow of Harvard Law School, states "there is no objective stance but only a series of perspectives - no neutrality, no escape from choice in judging," I further accept that our experiences as women and people of color affect our decisions. The aspiration to impartiality is just that--it's an aspiration because it denies the fact that we are by our experiences making different choices than others. Not all women or people of color, in all or some circumstances or indeed in any particular case or circumstance but enough people of color in enough cases, will make a difference in the process of judging.

Objectivity is a worthy aspiration, but"there is no objective stance." Okay -- no one's ever solved this paradox. But it's possible to cut deeper into the circumstances under which attempts to impassively follow the law might leave a judge high and dry. Take, for example, the line drawn by a certain freshman senator in 2006, explaining why he would not vote to confirm John Roberts:

It is absolutely clear to me that Judge Roberts truly loves the law. He couldn't have achieved his excellent record as an advocate before the Supreme Court without that passion for the law, and it became apparent to me in our conversation that he does, in fact, deeply respect the basic precepts that go into deciding 95 percent of the cases that come before the Federal court -- adherence to precedence, a certain modesty in reading statutes and constitutional text, a respect for procedural regularity, and an
impartiality in presiding over the adversarial system. All of these characteristics make me want to vote for Judge Roberts.

The problem I face -- a problem that has been voiced by some of my other colleagues, both those who are voting for Mr. Roberts and those who are voting against Mr. Roberts -- is that while adherence to legal precedent and rules of statutory or constitutional construction will dispose of 95 percent of the cases that come before a court, so that both a Scalia and a Ginsburg will arrive at the same place most of the time on those 95 percent of the cases -- what matters on the Supreme Court is those 5 percent of cases that are truly difficult. In those cases, adherence to precedent and rules of construction and interpretation will only get you through the 25th mile of the marathon. That last mile can only be determined on the basis of one's deepest values, one's core concerns, one's broader perspectives on how the
world works, and the depth and breadth of one's empathy.

In those 5 percent of hard cases, the constitutional text will not be directly on point. The language of the statute will not be perfectly clear. Legal process alone will not lead you to a rule of decision. In those circumstances, your decisions about whether affirmative action is an appropriate response to the history of discrimination in this country or whether a general right of privacy encompasses a more specific right of
women to control their reproductive decisions or whether the commerce clause empowers Congress to speak on those issues of broad national concern that may be only tangentially related to what is easily defined as interstate commerce, whether a person who is disabled has the right to be accommodated so they can work alongside those who are nondisabled -- in those difficult cases, the critical ingredient is supplied by what is in the judge's heart.

We can't all be Barack Obama. But that precision -- the ability to spell out the conditions under which the law will not provide clear guidance -- is a capability I would hope for in a Supreme Court justice.

"Why healthcare costs so much"

Andrew Sullivan has a series of blog posts, Why healthcare costs so much, in which various blind men describe their part of the elephant. Atul Gawande, writing in the current New Yorker, has the answer -- beyond a shadow of a doubt:

Providing health care is like building a house. The task requires experts, expensive equipment and materials, and a huge amount of coördination. Imagine that, instead of paying a contractor to pull a team together and keep them on track, you paid an electrician for every outlet he recommends, a plumber for every faucet, and a carpenter for every cabinet. Would you be surprised if you got a house with a thousand outlets, faucets, and cabinets, at three times the cost you expected, and the whole thing fell apart a couple of years later? Getting the country’s best electrician on the job (he trained at Harvard, somebody tells you) isn’t going to solve this problem. Nor will changing the person who writes him the check.

Gawande focuses on McAllen, Texas, a poor community that is one of the most expensive healthcare markets in the country. In McAllen, he learns, an "entreprenuerial spirit" has become the dominant culture among doctors:

One afternoon in McAllen, I rode down McColl Road with Lester Dyke, the cardiac surgeon, and we passed a series of office plazas that seemed to be nothing but home-health agencies, imaging centers, and medical-equipment stores.

“Medicine has become a pig trough here,” he muttered.

Dyke is among the few vocal critics of what’s happened in McAllen. “We took a wrong turn when doctors stopped being doctors and became businessmen,” he said.

The antidote, unfortunately, is not readily apparent. Creating the right incentives -- or unwinding the wrong ones -- is complicated. Some institutions have done so by creating systems in which doctors essentially oversee each other and the institution holds itself collectively responsible for outcomes. Some, like the Mayo clinic, produce excellent outcomes at low cost. But how to replicate their successful cultures is not yet clear:

McAllen and other cities like it have to be weaned away from their untenably fragmented, quantity-driven systems of health care, step by step. And that will mean rewarding doctors and hospitals if they band together to form Grand Junction-like accountable-care organizations, in which doctors collaborate to increase prevention and the quality of care, while discouraging overtreatment, undertreatment, and sheer profiteering....

This will by necessity be an experiment. We will need to do in-depth research on what makes the best systems successful—the peer-review committees? recruiting more primary-care doctors and nurses? putting doctors on salary?—and disseminate what we learn. Congress has provided vital funding for research that compares the effectiveness of different treatments, and this should help reduce uncertainty about which treatments are best. But we also need to fund research that compares the effectiveness of different systems of care—to reduce our uncertainty about which systems work best for communities.

Is trusting Obama like trusting Bush?

Conferring any new power on our elected officials raises the question of trust in leadership -- in two ways. In one sense, our constitutional principles enjoin us never to trust leadership -- that is, we expect leaders' actions to be in all instances bound by statute. But we may choose to write statutes that give them more discretion, or empower them to do things -- for example, listen in on overseas conversations involving an American without a warrant -- that they were not previously empowered to do.

The question of trust looms large as Obama prepares to ask for the authority for preventive detention -- that is, holding suspected terrorists as prisoners of war, indefinitely without trial. Trust is at issue because a President and his senior officials have access to evidence and information that the rest of us lack.

Glenn Greenwald has thrown down the gauntlet of unreasoning trust repeatedly to Obama's supporters who have not opposed decisions including release of the photos of prisoner abuse, reconstitution of the military tribunals, and preventive detention. Greenwald's challenge: if you opposed a policy under Bush, how can you accept it under Obama?

That challenge should be grappled with, rather than answered with a simple yes or no. Two questions seem salient. First, when Obama decides not to break fully with a Bush Administration practice, is his policy necessarily the same? Second, are there circumstances in which an appropriately vigilant citizen might accept the President's judgement in place of his or her own?

On the first question -- can Obama continue a Bush practice while substantively changing the policy, Jack Goldsmith offers an answer: Obama differs by rejecting unilateral presidential action, instead seeking the buy-in of Congress, the electorate and the courts. Here is the gist of a contrast worked out in detail in the final section of Goldsmith's memorable comparison of Bush and Obama in TNR, The Cheney Fallacy:

The Bush White House had a principled commitment to expanding presidential power that predated 9/11. This commitment led it early on to act unilaterally on military commissions, detention, and surveillance rather than seeking political and legal support from Congress, and to oppose judicial review of these and other wartime policies. The public concerns about presidential power induced by these actions were exacerbated by the administration's expansive rhetoric....

The Obama administration...seems to have embraced, probably self-consciously, the tenets of democratic leadership that Roosevelt and Lincoln used to enhance presidential trust, and thus presidential effectiveness, during their wars. Like Roosevelt and to some degree Lincoln, President Obama has chosen a bipartisan national security team to help convey that his national security actions are in the public interest and not a partisan one. Also like our two greatest war presidents, President Obama seems committed to genuine consultation with Congress. If he gets Congress fully on board for his terrorism program, he will spread responsibility for the policies and help convince the public and the courts that the threat is real and the steps to counterterrorism necessary.

This determination to work within his Constitutional powers (in order to expand them!) is vey much on display in Obama's May 20 speech at the National Archives laying out his national security policy, including his intent to reconstitute military commissions and seek preventive detention:

As I said, I am not going to release individuals who endanger the American people. Al Qaeda terrorists and their affiliates are at war with the United States, and those that we capture - like other prisoners of war - must be prevented from attacking us again. However, we must recognize that these detention policies cannot be unbounded. That is why my Administration has begun to reshape these standards to ensure they are in line with the rule of law. We must have clear, defensible and lawful standards for those who fall in this category. We must have fair procedures so that we don't make mistakes. We must have a thorough process of periodic review, so that any prolonged detention is carefully evaluated and justified.
I know that creating such a system poses unique challenges. Other countries have grappled with this question, and so must we. But I want to be very clear that our goal is to construct a legitimate legal framework for Guantanamo detainees - not to avoid one. In our constitutional system, prolonged detention should not be the decision of any one man. If and when we determine that the United States must hold individuals to keep them from carrying out an act of war, we will do so within a system that involves judicial and congressional oversight. And so going forward, my Administration will work with Congress to develop an appropriate legal regime so that our efforts are consistent with our values and our Constitution.

Of course, a policy can be pursued through legal means and still be wrong. And defenders of civil liberties -- including some of the truest heroes of the past eight years, who battled the Bush Administration's assault on the Constitution long and hard and won crucial victories -- regard preventive detention as a Rubicon. Here's how Diane Marie Amann, a law professor at UC Davis put it in the Times (h/t Greenwald):

He signaled a plan by which they — and perhaps other detainees yet to be arrested? — could remain in custody forever without charge. There is no precedent in the American legal tradition for this kind of preventive detention. That is not quite right: precedents do exist, among them the Alien and Sedition Acts of 1798 and the Japanese internment of the 1940s, but they are widely seen as low points in America’s history under the Constitution.
President Obama promised that his “new legal regime” — words identical to those Bush Administration official John Yoo used in 2002 –- will provide an array of “fair procedures.” That ought to be a given, for the Constitution requires due process before liberty may be deprived. But no amount of procedures can justify deprivations that, because of their very nature violate the Constitution’s core guarantee of liberty.

But what about the practical claim that many detainees who are too dangerous to release can't be prosecuted in ordinary trials? Jameel Jaffer and Ben Wizner, writing in Salon in December '08 (also cited by Greenwald), summarized a point-by-point rebuttal in a Human Rights Watch report written by former federal prosecutors Richard Zabel and James Benjamin:

The report, "In Pursuit of Justice," examines more than a hundred international terrorism cases that were prosecuted in U.S. federal courts, and concludes that those courts are well-equipped to accommodate the government's legitimate national security interests without compromising the fundamental rights of criminal defendants. Federal prosecutors have an imposing array of prosecutorial weapons for targeting suspected terrorists, including statutes that criminalize assault and homicide, the use of weapons of mass destruction, and harboring or concealing terrorists.
Of the many statutes that prosecutors have employed against suspected terrorists, perhaps the most far-reaching are those that criminalize the provision of "material support" to organizations that have engaged in terrorism or have been designated as terrorist organizations. These statutes allow the government to secure convictions without having to show that the defendant actually intended to further terrorism, and indeed without having to show that any specific act of terrorism has taken place or is being planned. Thus, in recent years, defendants have been convicted of material support for attending terrorist training camps, for giving medical aid to injured fighters, and for supplying funds for the humanitarian activities of designated terrorist groups. In fact, the material support laws are so sweeping that they have been criticized for criminalizing conduct that is protected by the First Amendment. (In one pending case in New York, the government is prosecuting a man whose "material support" consisted of rebroadcasting a Hezbollah television station in Brooklyn, N.Y.) But while one can fairly criticize the material support laws for criminalizing too much conduct, it would be difficult to criticize them for criminalizing too little. Given the vast sweep of those laws, it is hard to imagine that Guantánamo holds any substantial number of men who are simultaneously impossible to prosecute and yet too dangerous to release.

The contention that the federal courts are incapable of protecting classified information -- "intelligence sources and methods," in the jargon of national security experts -- is another canard. When classified information is at issue in federal criminal prosecutions, a federal statute -- the Classified Information Procedures Act (CIPA) -- generally permits the government to substitute classified information at trial with an unclassified summary of that information.

On the other side of the issue is Jack Goldsmith:

For many reasons, it is too risky for the U.S. government to deny itself the traditional military detention power altogether, and to commit itself instead to try or release every suspected terrorist.

For one thing, military detention will be necessary in Iraq and Afghanistan for the forseeable future. For another, we likely cannot secure convictions of all the dangerous terrorists at Guantanamo, much less all future dangerous terrorists, who legitimately qualify for non-criminal military detention. The evidentiary and procedural standards of trials, civilian and military alike, are much higher than the analogous standards for detention. With some terrorists too menacing to set free, the standards will prove difficult to satisfy. Key evidence in a given case may come from overseas and verifying it, understanding its provenance, or establishing its chain of custody in the manners required by criminal trials may be difficult...the problem only grows when the evidence is old. And perhaps most importantly, the use of such evidence in a criminal process may compromise intelligence sources and methods, requiring the disclosure of the identities of confidential sources or the nature of intelligence-gathering techniques, such as a sophisticated electronic interception capability.

Goldsmith further argues that trying some terrorist suspects in civilian courts may damage civil liberties:

The Moussaoui and Padilla prosecutions highlight an under-appreciated cost of trials, at least in civilian courts. The Moussaoui and Padilla trials were messy affairs that stretched, and some observers believe broke, our ordinary criminal trial conceptions of conspiracy law and the rights of the accused, among other things. The Moussaoui trial, for example, watered down the important constitutional right of the defendant to confront witnesses against him in court, and the Padilla trial rested on an unprecedentedly broad conception of conspiracy. An important but under-appreciated cost of using trials in all cases is that these prosecutions will invariably bend the law in ways unfavorable to civil liberties and due process....

Obama has apparently accepted arguments very like Goldsmith's. Without elaborating why he believes they can't be tried, Obama on May 20 characterized in some detail those whom he would detain as military prisoners:

Finally, there remains the question of detainees at Guantanamo who cannot be prosecuted yet who pose a clear danger to the American people. I want to be honest: this is the toughest issue we will face. We are going to exhaust every avenue that we have to prosecute those at Guantanamo who pose a danger to our country. But even when this process is complete, there may be a number of people who cannot be prosecuted for past crimes, but who nonetheless pose a threat to the security of the United States. Examples of that threat include people who have received extensive explosives training at al Qaeda training camps, commanded Taliban troops in battle, expressed their allegiance to Osama bin Laden, or otherwise made it clear that they want to kill Americans.

This claim raises the question: why trust Obama's judgment that a substantial number of such captives are a) too dangerous to be released, and b) impossible to try try in criminal court? For at least a partial answer -- or at least, an important piece of evidence -- I would submit the pattern of Obama's decision-making as displayed since January 20.

On questions of security and civil liberties, Obama has issued split decisions. He banned torture and embraced preventive detention. He released the torture memos and held back the torture photos. He wants to reconstitute but preserve the military commissions.

These decisions look to me like the opposite of triangulation. They seem to be determined not by political calculus, but by a hard look at the facts and by listening to opposed arguments. On the photo question, Obama made it pretty clear that he had been turned by Gates and his generals. On the memo release, he held up at the behest of intelligence officials, decided to buck them, but offered concessions to allay those of their worries he deemed legitimate. Obama calls his approach surgical -- and from what he's revealed of the process, that seems to be an accurate description.

Obama's "trust me" is different in kind from Bush's. Bush meant "trust my gut," trust my good-faith effort to keep America safe, trust me not to abuse an authority that acknowledges no Constitutional bounds whenever a threat to national security can be invoked. Obama's trust me means "trust the process as I lead you through it."

That leaves ample space, of course, to oppose his policies on the merits. I for one am not convinced that we should accord the government the power to detain persons without trial. But I would be disposed to listen assuming Obama makes the case in more detail.

Obama is scrupulously careful about laying down the rules of engagement when he seeks a new authority. Supporters need to be equally rigorous in developing criteria to support or oppose. Personally, until I see evidence of an egregious error in judgement, I remain disposed to give him the benefit of the doubt.

Obama: Preventive detention yes, "unitary executive" no

Jack Goldsmith, the former head of Bush's Office of Legal Counsel who invalidated the early torture memos, has written an indispensable article about the continuities and differences between Obama's emerging antiterror policies and those of Bush's second term.

While concluding that "the main difference between the Obama and Bush administrations concerns not the substance of terrorism policy, but rather its packaging," Goldsmith does not dismiss this difference as sleight-of-hand, but holds it up as an essential difference that protects Constitutional limits on Presidential power while paradoxically strengthening that power by obtaining the consent of the governed. There is one aspect of Goldsmith's contrast between Bush's "unitary executive" and Obama's consent-seeking that I'd like to look at more closely.

Goldsmith portrays the "packaging" difference as follows:

The Bush White House had a principled commitment to expanding presidential power that predated 9/11. This commitment led it early on to act unilaterally on military commissions, detention, and surveillance rather than seeking political and legal support from Congress, and to oppose judicial review of these and other wartime policies. The public concerns about presidential power induced by these actions were exacerbated by the administration's expansive rhetoric. Department of Justice opinions and presidential signing statements, for example, made broad claims for an untouchable Commander-in-Chief power that were unnecessary to the tasks at hand. Just as damaging was the administration's frequently expressed desire to expand executive power in order, as Vice President Cheney put it, "to leave the presidency stronger than we found it"...

The Bush administration's...rhetorical strategy led many people to suspect that the president was acting to increase his own power rather than to keep the country safe. The strategy's main effect was to distort the legitimacy of many Bush wartime practices that had been uncontroversial in previous wars....

The Obama administration...seems to have embraced, probably self-consciously, the tenets of democratic leadership that Roosevelt and Lincoln used to enhance presidential trust, and thus presidential effectiveness, during their wars. Like Roosevelt and to some degree Lincoln, President Obama has chosen a bipartisan national security team to help convey that his national security actions are in the public interest and not a partisan one. Also like our two greatest war presidents, President Obama seems committed to genuine consultation with Congress. If he gets Congress fully on board for his terrorism program, he will spread responsibility for the policies and help convince the public and the courts that the threat is real and the steps to counterterrorism necessary. President Obama has also promised a less secretive executive branch than President Bush. There is little evidence yet that his administration has done this, but if it does, it will reduce the mistakes that excessive secrecy brings and produce a more responsible and prudent government.

Goldsmith's analysis is subtle. He oscillates between sardonic references to Obama placing Bush policies in "prettier wrapping" and assertions that the symbolic and procedural changes are in effect the most important "substance" of all. What I want to look at more closely is the contrast Goldsmith sketches between the Bush Administration's assertion of an extreme "unitary executive" theory and Obama's (so far rhetorical) embrace of restraint of the executive by Congress and the courts.

One of the most sweeping of Bush's assertions of executive authority is in the August 1, 2002 Bybee memo authorizing "enhanced interrogation techniques" (i.e., torture). Section 5 addresses "The President's Commander in Chief Power" and considers whether the EIT violate Section 2340A of Title 18 of the United States Code which makes it a criminal offense for any person outside the U.S. to commit or attempt to commit torture. The memo's answer: any mode of interrogation authorized by the President cannot violate the statute, because the President in his Commander in Chief capacity is not bound by the statute -- or any other:

In light of the President's complete authority over the conduct of war, without a clear statement otherwise, we will not read a criminal statute as infringing on the President's ultimate authority in these areas...In order to respect the president's inherent constitutional authority to manage a military campaign against al Qaeda and its allies, Section 2340A must be construed as not applying to interrogations undertaken pursuant to his Commander-in-Chief authority. As our Office has consistently held during this Administration and previous Administrations, Congress lacks authority under Article I to set the terms and conditions under which the President may exercise his authority as Commander in Chief to control the conduct of operations during a war.

In other words, the President in conduct of war can do whatever he likes to whomever he likes.

Compare Obama's treatment in his May 20 national security speech of the fraught question of preventive detention. In the speech, Obama addressed "the question of detainees at Guantanamo who cannot be prosecuted" -- often because evidence against them was obtained by torture - "yet who pose a clear danger to the American people." He has appalled civil liberties advocates by suggesting that his Administration may seek to hold such people as prisoners of war -- albeit in a war without apparent end. Here is how he framed his prospective authority to do so:

As I said, I am not going to release individuals who endanger the American people. Al Qaeda terrorists and their affiliates are at war with the United States, and those that we capture - like other prisoners of war - must be prevented from attacking us again. However, we must recognize that these detention policies cannot be unbounded. That is why my Administration has begun to reshape these standards to ensure they are in line with the rule of law. We must have clear, defensible and lawful standards for those who fall in this category. We must have fair procedures so that we don't make mistakes. We must have a thorough process of periodic review, so that any prolonged detention is carefully evaluated and justified.

I know that creating such a system poses unique challenges. Other countries have grappled with this question, and so must we. But I want to be very clear that our goal is to construct a legitimate legal framework for Guantanamo detainees - not to avoid one. In our constitutional system, prolonged detention should not be the decision of any one man. If and when we determine that the United States must hold individuals to keep them from carrying out an act of war, we will do so within a system that involves judicial and congressional oversight. And so going forward, my Administration will work with Congress to develop an appropriate legal regime so that our efforts are consistent with our values and our Constitution.

Here Obama embraces a controversial Bush practice - preventive detention - but abjures the sole authority to executive that practice. He is asserting an extraordinary authority yet diffusing it among the three branches. He implicitly acknowledges the danger inherent in granting this extension of government authority by proposing that it be checked and balanced.

Is it possible to provide adequate checks and balances to a sweeping power like preventive detention? I would still say no. A trial is the means we have developed over centuries to accord due process to those deemed a danger to society. It seems to me that there is a kind of infinite regress in creating procedures -- "due processes" -- that are supposed to preclude the detainee's right to due process. We are substituting a weak check to governmental power for a strong one.

It should be noted that Goldsmith, who effectively rescinded the President's authority to torture and assertion of the extreme "unitary executive" theory, is perhaps the most influential advocate for preventive detention. His February 2009 paper, "Long-term Terrorist Detention and Our National Security Court" lays out in detail the argument that Obama sketched in brief this week -- that the right to "preventive detention" is grounded in the authority to hold prisoners of war, and that the ambiguities of holding people who were not part of a defined army or of a conflict that will have a defined end must be subject to judicial review.

The chief danger of the Bush presidency was its assertion of unlimited executive power. The "packaging" differences that Goldsmith highlights rescind that assumption of absolutism. That's not to say that Obama is right to seek authority to continue policies like preventive detention. But the key word here is "seek." Obama may seek, and obtain, a bad law. But he won't act lawlessly.

Keep talking, Cheney

Galling in a way that coverage of Obama's major address on national security is universally yoked to the delusive self-serving bilge of the former Vice President:

Cheney Repudiates Obama on Terrorism Policy (NYT)
Obama and Cheney's remarks on terrorism (LAT)
Obama, Cheney Offer Rival Security Visions (WSJ
Spin Meter: Obama vs. Cheney (AP)
Obama, Cheney offer competing views on national security (CNN)
Compare and Contrast: Obama and Cheney's Divergent Views on National Security (FoxNews)

But then reflect: Obama's approval ratings more than triple Cheney's. Cheney's speech is full of lies, distortions and delusions that Americans have broadly rejected. And the hammering Obama's taking from civil rights activists is in some measure neutralized by this assault from the authoritarian side.

Maddow, Isikoff trump up evidence of Obama 'politicizing' justice

Looks to me like Michael Isikoff and Rachel Maddow distorted the import of a testy exchange between Team Obama and human rights officials at the White House reported last night. Isikoff, appearing on Maddow, had the scoop on the substance of this off-the-record meeting.

To paraphrase closely -- there's no transcript yet -- Isikoff reported that one of the visitors

raised the idea of a criminal prosecution, even one criminal prosecution as a symbol, a trophy, I think the word was used, to show that such conduct - for torture - such conduct would not be tolerated again, and the president sort of curtly dismissed the idea made it clear he had no interest in that. What's interesting about that again was that his attorney general Eric Holder sat there silently and didn't say a word. The President could have said that's Eric Holder's decision. But he didn't -- he seemed to cut it off.

Maddow then jumped in:

That seems like the biggest news here. The President has publicly said it's up to the attorney general...

Both then elaborated at length the idea that the Justice Department does not work for the President, that criminal prosecutions ought to be left up to the Justice Department and thus depoliticized -- a point stated eloquently a few weeks ago by Philip Zelikow.

True enough. And Holder may have been notoriously silent in other parts of the meeting. But here, it seems plain to me that Obama "curtly dismissed" the idea of a show trial because it's patently ridiculous. One scapegoat for a course of conduct in which virtually every senior national security official from the President on down was complicit? Who would that be, exactly? Should we string up John Yoo? Dick Cheney? W.? Obama didn't need to look left or right to assess that proposal.

Update: Isikoff's writeup on the Newsweek site likewise highlights the fact that "sources, all of whom asked not to be identified" said that "Attorney General Eric Holder sat by silently while the president curtly dismissed the idea that his Justice Department should criminally prosecute at least one Bush administration official for torture, if only as a symbolic move to demonstrate that actions such as waterboarding will never be tolerated again." Someone, or group of someones, plainly regards the "trophy trial" as an option that requires serious legal study.

Does economic growth foster democracy?

What causes countries to transition to democracy? Richard Florida relays study results that may not be as startling as they sound at first blush:

Researchers from ETH Switzerland and Georgetown University used a statistical procedure called "extreme bounds analysis" to test the salience of 59 factors identified in more than three million previous statistical regressions (h/t: Charlotta Mellander). The study finds a "humbling result": Out of all those studies, all those variables, and all those millions of statistical analyses, just five factors predict the emergence of democracy, while four predict its survival.

Most surprising of all is the role played by economic growth, measured as gross domestic product (GDP) per capita. The study finds that GDP per capita is negatively associated with the transition to democracy. Contrary to "modernization theory", the study finds that richer countries are not more likely to become democracies. Richer countries are more likely to remain democracies once they become one.

There may be some slight distortion in the retelling here. The study itself say this:

Regarding transitions to democracy, we find that economic growth has a robust negative effect. This finding, standing in stark contrast to modernization theory, suggests that autocracies with strong economic performance are unlikely to see democracy emerge. Instead, economic contraction causes dictatorships to break down. Also in contrast to modernization theory...the level of GDP per capita does not have a robust relationship with the emergence of democracy (p.2).

We have an interesting finding for economic growth: it makes dictatorships more likely to survive and lowers the chances for democracy to emerge (p. 27).

Florida tells us that the study finds that GDP per capita is negatively associated with the transition to democracy. The study authors write that GDP growth is negatively associated with transition -- in either direction. That's a big difference. Contra Florida, richer countries are not less likely to transition (though they may not be more likely to). Growing countries are less likely to transition.

The takeaway, as far as I can see, is that governments are stable while economic growth is robust -- growth gives governments authority, and no one wants to change a winning game. The authors suggest as much:

Countries that perform better economically are less likely to see democracy emerge. In good times, the "need" for a change might not be felt in the population, and autocratic rulers can justify their position (21).

They then claim that this fact "defies a basic idea in modernization theory that as a country develops, democracy should become more likely."

But does it? Here's how the authors describe modernization theory:

Modernization theory argues that as countries develop economically, social structures become too complex for authoritarian regimes to manage - technological change endows owners of capital with some autonomy and private information, complex labor processes require active cooperation rather than coercion, and civil society emerges. At some point in the process, dictatorship collapses and democracy emerges as the alternative (p. 5).

Is it possible that this pattern does indeed often play out -- but only after a dictatorship that has enjoyed sustained economic success suddenly faces economic crisis? Perhaps arrested growth triggers discontent. Perhaps the curbs to growth that modernization theory claims are inherent in dictatorship only kick in at a relatively high level of economic development.

Against this hypothesis, the authors do find that "the level of GDP per capita does not have a robust relationship with the emergence of democracy" (p. 3) and that "GDP per capita does not explain democratic transitions" (p. 19). But lack of a finding of a robust relationship does not mean that there is no relationship. Their more unequivocal finding again, is that rapid growth obviates against a change in form of government. Could it be that a period of growth followed by economic crisis does tend to trigger democratic transitions?

The study, Extreme Bounds of Democracy, is by Martin Gassebener, Michael J. Lamia and James Raymond Vreeland.

From a short history of sexuality

From a NYT account (by Jeremy Peters) of weak opposition to gay marriage in New York, this jumped out:

The state’s Roman Catholic bishops have been somewhat distracted, too, having focused their lobbying energies this session on defeating a bill that would extend the statute of limitations for victims of sexual abuse to bring civil claims, and have appeared unprepared for the battle over marriage.

Let's not say they were caught with their pants down...

Orignal sin at Notre Dame

In November 2007, Andrew Sullivan saw this promise in the prospect of an Obama presidency:

At its best, the Obama candidacy is about ending a war—not so much the war in Iraq, which now has a mo­mentum that will propel the occupation into the next decade—but the war within America that has prevailed since Vietnam and that shows dangerous signs of intensifying, a nonviolent civil war that has crippled America at the very time the world needs it most. It is a war about war—and about culture and about religion and about race. And in that war, Obama—and Obama alone—offers the possibility of a truce.

On Sunday, at Notre Dame, Barack Obama held out that olive branch.

Speaking to the graduating class in the face of protests that a pro-choice politician had been invited, Obama aimed his speech squarely at the core challenge of democratic governance:

the question then is how do we work through these conflicts? Is it possible for us to join hands in common effort? As citizens of a vibrant and varied democracy, how do we engage in vigorous debate?

To answer that question, Obama spoke from within his own professed faith, at the same time setting limits to the authority of that faith. The speech was built on paradox, on the need to balance opposites that began with faith and doubt. As a cornerstone, Obama used a metaphor of the former President of Notre Dame, Rev. Theodore Hesburgh, who "has long spoken of this institution as both a lighthouse and a crossroads." In Obama's telling, the lighthouse became a figure for faith, and the crossroads for the humility that is born of doubt. He told the graduates that faith finds its strength in doubt -- and its authority (where others are concerned) in reason:

And in this world of competing claims about what is right and what is true, have confidence in the values with which you've been raised and educated. Be unafraid to speak your mind when those values are at stake. Hold firm to your faith and allow it to guide you on your journey. In other words, stand as a lighthouse.

But remember, too, that you can be a crossroads. Remember, too, that the ultimate irony of faith is that it necessarily admits doubt. It's the belief in things not seen. It's beyond our capacity as human beings to know with certainty what God has planned for us or what He asks of us. And those of us who believe must trust that His wisdom is greater than our own.

And this doubt should not push us away our faith. But it should humble us. It should temper our passions, cause us to be wary of too much self-righteousness. It should compel us to remain open and curious and eager to continue the spiritual and moral debate that began for so many of you within the walls of Notre Dame. And within our vast democracy, this doubt should remind us even as we cling to our faith to persuade through reason, through an appeal whenever we can to universal rather than parochial principles, and most of all through an abiding example of good works and charity and kindness and service that moves hearts and minds.

Obama has often said, as above, that faith is only relevant in politics insofar as it appeals to universal values and reason. This speech was about that limit - but also pushed against it, as Obama professed his own belief in one uniquely Christian doctrine:

Unfortunately, finding that common ground _ recognizing that our fates are tied up, as Dr. King said, in a "single garment of destiny" _ is not easy. And part of the problem, of course, lies in the imperfections of man _ our selfishness, our pride, our stubbornness, our acquisitiveness, our insecurities, our egos; all the cruelties large and small that those of us in the Christian tradition understand to be rooted in original sin. We too often seek advantage over others. We cling to outworn prejudice and fear those who are unfamiliar. Too many of us view life only through the lens of immediate self-interest and crass materialism; in which the world is necessarily a zero-sum game. The strong too often dominate the weak, and too many of those with wealth and with power find all manner of justification for their own privilege in the face of poverty and injustice. And so, for all our technology and scientific advances, we see here in this country and around the globe violence and want and strife that would seem sadly familiar to those in ancient times (my emphasis).

That reference to original sin gave the speech its charge. Ultimately, it was about how to act for good in a fallen world. It crackled from the first with dialectic energy, contrasting the ills of the world with the challenge to the fallen to do good:

Your generation must decide how to save God's creation from a changing climate that threatens to destroy it. Your generation must seek peace at a time when there are those who will stop at nothing to do us harm, and when weapons in the hands of a few can destroy the many. And we must find a way to reconcile our ever-shrinking world with its ever-growing diversity _ diversity of thought, diversity of culture, and diversity of belief.

It was about battles within as well as external challenges and conflict between ideological adversaries:

you've had time to consider these wrongs in the world; perhaps recognized impulses in yourself that you want to leave behind.

we know that the views of most Americans on the subject [of abortion] are complex and even contradictory...

It acknowledged, with startling honesty, irreconcilable differences:

Now, understand--understand, Class of 2009, I do not suggest that the debate surrounding abortion can or should go away. Because no matter how much we may want to fudge it-- indeed, while we know that the views of most Americans on the subject are complex and even contradictory _ the fact is that at some level, the views of the two camps are irreconcilable. Each side will continue to make its case to the public with passion and conviction. But surely we can do so without reducing those with differing views to caricature.

Obama projected calm at the center of the storm, standing as a President comfortable with protests against his very presence on the podium, using that conflict itself as a model for e pluribus unum:

And I want to join him [Father Hesburgh] and Father John in saying how inspired I am by the maturity and responsibility with which this class has approached the debate surrounding today's ceremony. You are an example of what Notre Dame is about.

How can a President profess a faith in original sin without "Christianizing" the public square? Obama did so by differentiating clearly between the specific doctrine that informs his own world view and the universal values that inform policymaking:

For if there is one law that we can be most certain of, it is the law that binds people of all faiths and no faith together. It's no coincidence that it exists in Christianity and Judaism; in Islam and Hinduism; in Buddhism and humanism. It is, of course, the Golden Rule--the call to treat one another as we wish to be treated. The call to love. The call to serve. To do what we can to make a difference in the lives of those with whom we share the same brief moment on this Earth.

Obama has alluded to the Golden Rule and politicians' obligation to appeal to universal values in many, many speeches. What was unusual here -- I won't say unique, I'm sure he's done it in prior speeches -- was counterpoising that universalism with profession of a specific doctrinal belief. It was one more window into the way faith may inform Obama's worldview.

I say 'may' because I've always suspected that there's some mental gymnastics involved in Obama's embrace as an adult of specifically Christian faith. That process is described in Dreams from My Father as an emotional and social one. And indeed, at Notre Dame on Sunday, Obama held up his conversion as one more mystery of faith:

And something else happened during the time I spent in these neighborhoods [as a community organizer] perhaps because the church folks I worked with were so welcoming and understanding; perhaps because they invited me to their services and sang with me from their hymnals; perhaps because I was really broke and they fed me. Perhaps because I witnessed all of the good works their faith inspired them to perform, I found myself drawn not just to the work with the church; I was drawn to be in the church. It was through this service that I was brought to Christ.

Culture wars never end entirely. They burn high and low. But our generation is weary of them. And Obama is doing his utmost to hit reset on the hot buttons.

See also: The Gospel according to Obama

Goldberg: Will Netanyahu smite the "Amalekites"?

Jeffrey Goldberg has done us a service by opening a terrifying window into the mind of Israeli Prime Minister Benjamin Netanyahu. Rejecting the hypothesis that Netanyahu's saber-rattling over Iran is a negotiating ploy, Goldberg explains:

...the prime minister’s preoccupation with the Iranian nuclear program seems sincere and deeply felt. I recently asked one of his advisers to gauge for me the depth of Mr. Netanyahu’s anxiety about Iran. His answer: “Think Amalek.”

“Amalek,” in essence, is Hebrew for “existential threat.” Tradition holds that the Amalekites are the undying enemy of the Jews. They appear in Deuteronomy, attacking the rear columns of the Israelites on their escape from Egypt. The rabbis teach that successive generations of Jews have been forced to confront the Amalekites: Nebuchadnezzar, the Crusaders, Torquemada, Hitler and Stalin are all manifestations of Amalek’s malevolent spirit.

How do you deal with an "undying enemy"? Here's the divine answer in 1 Samuel 15:3:

Now go and smite Amalek, and utterly destroy all they have, and spare them not; but slay both man and woman, infant and suckling, ox and sheep, camel and donkey.

God meant business. He rejected King Saul, who led the Israelite assault, because while wiping out the Amalekites he spared their king and some of their livestock.

Netanyahu is not a religious fundamentalist per se, but he too means business. Goldberg usefully recounts that his personal ideology was shaped by his father's scholarship, which

suggests a belief that anti-Semitism is a sui generis hatred, one that is shape-shifting, impervious to logic and eternal. The only rational response to such sentiment, in the Netanyahu view, is militant Jewish self-defense.

That militancy is now focused relentlessly on Iran. Drawing on his March 31 interview published some weeks ago by the Atlantic, Goldberg reports that Netanyahu

said that Iran’s desire for nuclear weapons represented a “hinge of history.” “Iran has threatened to annihilate a state,” he said. “In historical terms, this is an astounding thing. It’s a monumental outrage that goes effectively unchallenged in the court of public opinion. Sure, there are perfunctory condemnations, but there’s no j’accuse — there’s no shock.” He argued that one lesson of history is that “bad things tend to get worse if they’re not challenged early.” He went on, “Iranian leaders talk about Israel’s destruction or disappearance while simultaneously creating weapons to ensure its disappearance.”

It is not strictly true that Iran has "threatened to annihilate a state." Mahmoud Ahmadinejad, quoting and channeling Khomeini, has expressed the wish and forecast that Israel "vanish from the page of time," that the "Zionist regime" will collapse, and that Muslims should unite to make this happen. He and other Iranian leaders have been careful, however, to avoid saying that Iran will bring about these results by military means. Ahmadinejad has disingenuously called for a single referendum of all the people in "Palestine" -- which would indeed make the Jewish state "vanish from the page of time." His long string of forecasts, disgusting vitriolic insults, and incitements are threatening enough, expressing a hatred, like that of Benzion Netanyahu's Spaniards, "impervious to logic and eternal."

But for the leader of a Jewish state to cast a current adversary as "Amalek" presents almost a mirror image to this deadly, irrational hatred. It suggests a leader haunted by ancient commands to wipe out the accursed of God. It stands off Isaac versus Ishmael, each with rival claims to being chosen of God, each viewing the other as the accursed.

To my mind, it's dead dreams of divine command that are the existential threat. The world is held at the point of the terrible swift sword of scriptural monotheism.

Related post: The Amalek connection: Goldberg protests too much

Ali Soufan, Tragedian

Ali Soufan, the highly skilled FBI interrogator who recently broke a seven year silence to assert in the New York Times that his successful non-coercive interrogations of al Qaeda operatives were halted in favor of an ineffectual course of torture, has a playwright's sensibility.

His Senate testimony on May 13 in a hearing on "What What Wrong" in Bush's OLC was a tragic narrative, rife with irony. The plot is simple: a highly successful, ethical enterprise steeped in the finest U.S. military tradition was thwarted in stages by a gang of malign incompetents who replaced it with an untested, ineffective, brutal program that did untold damage to our intelligence efforts as well as to our position in the world.

Philip Zelikow, in his testimony at the same hearing, allowed that the torture program may have yielded useful information but stressed its unacceptable costs. The irony in Soufan's narrative stems from his focus on the torture program's ineffectiveness as interrogation. The U.S. intelligence community sold its inheritance for a mass of pottage. Soufan weaves this core irony out of several strands:

Our tough guys were not brutal enough for al Qaeda:

Al Qaeda terrorists are trained to resist torture. As shocking as these techniques are to us, the al Qaeda training prepares them for much worse – the torture they would expect to receive if caught by dictatorships for example. This is why, as we see from the recently released Department of Justice memos on interrogation, the contractors had to keep getting authorization to use harsher and harsher methods, until they reached waterboarding and then there was nothing they could do but use that technique again and again. Abu Zubaydah had to be waterboarded 83 times and Khalid Shaikh Mohammed 183 times. In a democracy there is a glass ceiling of harsh techniques the interrogator cannot breach, and a detainee can eventually call the interrogator's bluff.

Torture is slower than classic relationship-building interrogation:

A third major problem with this technique is that it is slow. It takes place over a long period of time, for example preventing the detainee from sleeping for 180 hours as the memos detail, or waterboarding 183 times in the case of KSM. When we have an alleged "ticking timebomb" scenario and need to get information quickly, we can't afford to wait that long.

Torture neutralized our best operatives and sabotaged post-9/11 institutional reform:

Another disastrous consequence of the use of the harsh techniques was that it reintroduced the "Chinese Wall" between the CIA and FBI – similar to the wall that prevented us from working together to stop 9/11. In addition, the FBI and the CIA officers on the ground during the Abu Zubaydah interrogation were working together closely and effectively, until the contractors' interferences. Because we in the FBI would not be a part of the harsh techniques, the agents who knew the most about the terrorists could have no part in the investigation. An FBI colleague of mine, for example, who had tracked KSM and knew more about him than anyone in the government, was not allowed to speak to him.

Furthermore, the CIA specializes in collecting, analyzing, and interpreting intelligence. The FBI, on the other hand, has a trained investigative branch. Until that point, we were complimenting each other's expertise, until the imposition of the "enhanced methods." As a result people ended doing what they were not trained to do.

The torture program was outsourcing run amok:

It is also important to realize that those behind this technique are outside contractors with no expertise in intelligence operations, investigations, terrorism, or al Qaeda. Nor did the contractors have any experience in the art of interview and interrogation. One of the contractors told me this at the time, and this lack of experience has also now been recently reported on by sources familiar with their backgrounds.

Soufan's crowning irony is to stress the naivete of those who prided themselves on their cold-eyed realism -- the gang that decided, in the words of the Gonzales torture memo, that the "new paradigm" of the war on terrorism "renders obsolete Geneva's strict limitations on questioning of enemy prisoners and renders quaint some of its provisions."

It was a mistake to abandon it [Soufan's noncoercive "Informed Interrogation Approach"] in favor of harsh interrogation methods that are harmful, shameful, slower, unreliable, ineffective, and play directly into the enemy's handbook. It was a mistake to abandon an approach that was working and naively replace it with an untested method. It was a mistake to abandon an approach that is based on the cumulative wisdom and successful tradition of our military, intelligence, and law enforcement community, in favor of techniques advocated by contractors with no relevant experience.

The mistake was so costly precisely because the situation was, and remains, too risky to allow someone to experiment with amateurish, Hollywood style interrogation methods- that in reality- taints sources, risks outcomes, ignores the end game, and diminishes our moral high ground in a battle that is impossible to win without first capturing the hearts and minds around the world. It was one of the worst and most harmful decisions made in our efforts against al Qaeda.

"To steal a man's soul and give him nothing in return" is the highest aspiration of C.S. Lewis' devil Screwtape, a skilled operative at tempting humans to perdition. In Soufan's telling, the purveyors of so-called "EIT"--those who empowered Soufan's unnamed "outside contractor" (identified elsewhere as the former SERE psychologist James Mitchell) to institute his torture program-- sold themselves, the executive branch, and the U.S. intelligence community on just those terms.

The sum of all Constitutional fears: Zelikow

Philip Zelikow's remarkable testimony yesterday before the Senate Judiciary Committee
Subcommittee on Administrative Oversight and the Courts yesterday centered on the context and purpose for his now-famous 2006 memo countering the Office of Legal Counsel's findings that the CIA's "program of coolly calculated dehumanizing abuse and physical torment to extract information," as he put it, did not violate the U.S. Constitution's prohibitions against cruel and unusual punishment.

Donald Rumsfeld rejected the arguments of that memo and ordered it destroyed. At least one copy has been located in State Department files; it remains classified.

As described in Zelikow's testimony yesterday, a core purpose of the memo was to restore Americans' Constitutional protections against cruel and inhuman punishment. The memo suggests that as long as the findings in Jay Bybee's May 30, 2005 memo that the CIA program did not violate the Fifth Amendment were allowed to stand, Americans essentially have no civil liberties.

In a shocking bit of sophistry, the Bybee memo held that the CIA's interrogation program could not not violate Article 16 of the U.N. Convention Against Torture, which prohibits "cruel, inhuman or degrading treatment," because a) The Senate stipulated that this statute was to be interpreted in light of the Fifth Amendment, and b) the Fifth Amendment does not apply to aliens outside the United States. In other words, the U.S. committed itself to nothing in signing onto the CAT.

More to Zelikow's point, though, the Bybee memo held that the CIA program did not in any case violate the Fifth Amendment. Using a "shocks the conscience" standard, the memo held, among other things, that treatment does not "shock the conscience" unless it involves "the exercise of power without any reasonable justification in the service of a legitimate government objective." The interrogation practices at issue "are employed by the CIA only as reasonably deemed necessary to protect against grave threats to United States interests" - ergo, they do not shock the conscience.

In other words, the end justifies the means. Governmental authority can do anything to anyone "in the service of a legitimate government objective." Zelikow spells out what this means:

Further, the OLC position had implications beyond the interpretation of international treaties. If the CIA program passed muster under an American constitutional compliance analysis, then - at least in principle -- a progrma of this kind would pass American constitutional muster even if employed anwhere in the United States, on American citizens. Reflect on that for a moment.

Yes, let's. As long as that memo was operative,Americans had no constitutional protections against being held without trial and tortured at will, as long those doing the torturing held that they acted "in the service of a legitimate government objective."

Martin Wolf and Paul Krugman share a worry: will Obama funk reform?

Martin Wolf's assessment today of Obama's handling of the banking crisis follows the same curve as Paul Krugman's last week. Both note Obama's essential conservatism, his wish to reform with as little upheaval as possible. Both allow (Krugman grudgingly) that the sequence of bailouts, stress tests and capital raisings, coupled with cheap money from the Fed, may have saved the 19 biggest banks, providing space for them to grow their way out of crisis. Both worry that preserving the status quo will lead to another blowup. Both wonder whether Obama has the chops to impose structural reforms.

The conservatism, in Krugman's eyes, is pusillamity; Obama has decided to "muddle through the financial crisis." Wolf has a more positive view:

“If we want things to stay as they are, things will have to change.” Thus wrote the Sicilian writer Giuseppe di Lampedusa, in The Leopard. This seems to me the guiding principle of the Obama presidency...In his own way, Mr. Obama is following the path trodden by Franklin Delano Roosevelt.

On the possiblity of short-term success, here's Krugman:

It’s a strategy that might work. After all, right now the banks are lending at high interest rates, while paying virtually no interest on their (government-insured) deposits. Given enough time, the banks could be flush again... maybe we can let the economy fix the banks instead of the other way around.

And Wolf:

The purpose of the exercise was indeed conservative: to make it credible, though not certain, that the existing banking system and assets can survive the likely battering. This has been done well enough to satisfy the markets. But these banks will also be unable to expand their balance sheet significantly in the near future.

Interestingly, both identify the chief long term danger as failure to reform. Krugman thinks that the banks see Obama as King Log, not King Stork:

...while the Federal Reserve and the Obama administration continue to insist that they’re committed to tighter financial regulation and greater oversight, Wall Street insiders are taking the mildness of bank policy so far as a sign that they’ll soon be able to go back to playing the same games as before.

Wolf cites more structural reasons to be skeptical that we'll get change we can believe in:

Ensuring the rescue of a financial system packed even more than before with complex and “too-big-to-fail” institutions may well be the cautious response to this crisis. But it leaves the government with the even more onerous task of imposing effective regulation in future. Unhappily, the record of regulation of generously insured financial systems is extremely poor. The mobilised self-interest of highly rewarded players easily overwhelms the constraints imposed by far less well-rewarded and almost certainly less able regulators.

The more the crisis unfolds, the more evident it is that incentives in the financial system were (and are) badly distorted. I sympathise with the conservative approach to crises, but not if it leaves in place the plethora of perverse incentives that created them. At the end of this, then, there will be one big test: will the number of institutions thought “too big to fail” be as large as now and, if so, how will they be controlled? If the answers are still not clear, there will need to be yet more change.

On the day this was published, the WSJ reported, "The Obama administration has begun serious talks about how it can change compensation practices across the financial-services industry," and Federal regulators outlined plans to regulate derivatives. First steps on a long road.

Who owns credit default swaps on GM? And who's on the hook?

Mortgage-backed securities and their derivatives were supposed to spread risk but ended up impeding mortgage restructurings as ownership of each mortgage split into anonymous fragments.

Credit default swaps were designed to offset lenders' risk but now may impede restructurings outside of bankruptcy, as some CDS holders have more to gain from the CDS payout triggered by default than they have to lose from default on bonds they hold . The FT's Henny Sender explains that holders of credit default swaps on General Motors' debt may derail the restructuring plan now on the table:

...analysts say the chances the proposal will be accepted have been diminished by the large number of credit default swap (CDS) contracts written on GM’s debt.

Holders of such swaps would be paid in the event of a default – but would lose money if they agreed to restructure GM’s debt. For investors who own bonds and CDS, this could create an incentive to favour a bankruptcy filing....

“Chrysler looks like a simple two-car funeral compared to the traffic jam of assets and liabilities and contracts at GM,” said the credit research boutique CreditSights.

Question: aren't something like 80% of credit default swaps held by "naked" buyers that hold no debt - that is, by those who are speculating rather than insuring? Sender reports that investors hold $34bn in CDS on GM's debt and would receive net payments of $2.4bn if GM defaults. How much of that is owned by bondholders, 10% of whom can derail the restructuring?

Question 2: who underwrote the bulk of that $34 billion in CDS? When GM teetered on the brink of bankruptcy last December, some warned that bankruptcy could trigger a financial chain reaction - specifically, via CDS. Could this be another chapter in the AIG crisis?

Postscript: Companies have already been pushed into bankruptcy by CDS holders. The Deal had this on 4/27:

Money Morning newsletter author Martin Hutchinson argued that swaps were catalysts for the bankruptcies of AbitibiBowater Inc. and General Growth Properties Inc.

AbitibiBowater could not persuade enough of its bondholders to exchange a portion of its $6.2 billion in debt and went into bankruptcy. General Growth, with $27.3 billion of debt, also filed for bankruptcy after bondholders refused to approve a restructuring. Subsequently, the value of a major tranche of General Growth bonds was determined by auction to be worth 71% of par, allowing investors to receive $710,000 for each $1 million in CDSs. "A nice reward for voting 'no' to a restructuring," Hutchinson wrote

Obama sticks the shiv in Cheney

I gasped as I watched a smiling Obama unload this in his White House Correspondent's Dinner speech:

Dick Cheney was supposed to be here but he is very busy working on his memoirs, tentatively titled, "How to Shoot Friends and Interrogate People." (Laughter.)

That looks like carefully calculated (and calibrated) payback for Cheney's loud, frequent assertions that Obama is risking the country's security by abjuring the Cheney torture regimen. But does it sound like Obama? Am I crazy -- is this just bonhomie, in a class with comparing Biden to an eager puppy dog? Or did Obama deliver the deadliest insult leveled by one national politician against another in recent memory? He implicitly summed up Cheney's career as an exercise in treachery and torture.

To the spielers go the victory

The PR wars accompanying and following contemporary asymmetric conflicts are growing more complex.

In TNR, Simona Weinglass has a fascinating account of rival tallies of the civilian death toll in the Israeli attack on Gaza early this year. In one corner, Khalil Shaheen of the Palestinian Center for Human Rights (PCHR), who during the war led a team of about 35 that "braved the crossfire to visit hospitals, interview victims' families, and document the location and circumstances of every single war casualty." The PHCR tally: 1417 dead, including 926 civilians, 255 non-combatant police officers, and 236 fighters .

In the other corner, retired Israeli intelligence officer Jonathan Dahoah Halevi, working from his home in Toronto, is meticulously working his way through PHCR's 1417 names, "comparing them to a database of thousands of terrorist operatives he has compiled, as well as whatever he finds on the Internet." So far, concentrating on the 255 police among the dead, he has compiled "a list of 171 people the PCHR defines as civilians that he claims he can prove are actually combatants affiliated with Hamas or other terrorist groups" -- for example, one whom past news reports describe as "a militant cleric who mentored suicide bombers and sent his own son on a suicide mission in 2001, killing two Israelis" and another who "was a Palestinian Resistance Committee operative and suspect in the terrorist attack against three American security guards in Gaza in October 2003."

Halevi's private research sheds some light on the assumptions and sources behind the Israeli Defense Forces' tally: 1,166 dead, 709 of them Hamas terror operatives, 295 'uninvolved Palestinians' and 162 men whose names had not yet been attributed to any organization.

Are Shaheen's methods suspect? No: they're just simple. Anyone who was not carrying a weapon when killed was a civilian. Are Halevi's methods suspect? No, they're just expansive: anyone who aided a terrorist or militant group was a combatant. The data he compiles is a matter of public record.

What's striking is the nature, duration and complexity of the battle personified by Shaheen and Halevi (whose names have a certain doppelganger resonance, given their two-syllable assonance). Here's Weinglass's endnote:

Both agree, however, that the war does not end when the fighting stops. "In every war there are two components," says Halevi. "The first is the battle itself, defeating the other side, and the second is presenting the facts of what happened." If a country is not vigilant, he warns, "The other side will rewrite your history."

An old truism has it that the victors write the narrative. Today, to an as-yet unmeasured extent, the dominant narrative writers become the victors.

The great wealth transfer

In March, Rob Atkinson pointed out that the housing bubble resulted not so much in wealth destruction so as in wealth transfer -- from homeowners to buyers, which also means from the older and wealthier to the younger and less wealthy. Perhaps the broader U.S. debt binge also accelerated wealth transfer from west to east, from the developed world to China, India and other emerging manufacturing centers.

Trade surplus countries were lending to U.S. consumers in order to sell their goods to them. Left unchecked, that's a road to ruin, akin to a nineteenth century London clothier selling on credit to the hopelessly indebted gentry and aristocracy who populate Victorian novels. But the trend was checked -- violently -- and early enough that few see any serious risk that the U.S. Treasury will not be able to meet its obligations.

The U.S. will be paying this debt off for a long time. Household, business and government deleveraging will slow growth. Looking backward, higher interest rates, checking voracious consumerism and reducing U.S. trade deficits, might have led to more gradual and sustainable growth in the trade surplus countries as well as in the U.S.

But still...the turbo-charge to growth in China and India and other emerging manufacturing centers may have been valuable. China at least is now in a position to develop its own consumer market. Painful and risk-laden as the rebalancing of world trade may be, the go-go years' boost to industry and expectations may still prove to have been a net positive for the high-growth, trade surplus emerging economies.

Ambinder stitches up some fig leaves for Pelosi et al

No one should jump to conclusions about the CIA briefings of select members of Congress. Still, Marc Ambinder's equivocal defense of Pelosi and other members who received briefings is rife with diversion and obfuscation:

Based on several years' worth of distance, it's easy to conclude that Congress failed to police the CIA. But Congressional oversight of these matters has never been forward-looking. Congress is ill-equipped to monitor CIA operations in real-time; it cannot look over the shoulder of every National Security Agency analyst who picks up someone on a wiretap. And -- in an environment where the threat of terrorism was real -- we might wonder whether the type of Congressional oversight we seem to want would be more harmful than productive. We want the CIA to think twice before doing something naughty, but we don't want Congress to preemptively prevent the CIA from bribing, say, a source with a prostitute. We really don't. That's why our casting about for blame ought to end with political leaders who make policy decisions -- which is, in fact, where the blame for this program does reside.

What has calling out "a wiretap" or preventing a prostitution bribe got to do with being briefed on torture techniques and doing nothing to stop the torture or even protest it? Members of Congress who receive classified briefings may indeed be poorly positioned to object to many questionable activities. But the are a Constitutional check -- the whole point is to create an opportunity briefings are designed to give them an opportunity cry halt to dangerous abuses of power and violations of law and the Constitution.

According to Ambinder, if Pelosi was briefed about waterboarding and other torture techniques and wanted to object, her only option was as follows:

What she could have done -- and this does happen, occasionally -- is to walk out of the briefing, telling those CIA officials who came that what she just heard did not constitute a formal briefing, and that she would record, for her own records, that the CIA did not brief her on the subject. The CIA briefers would then return to Langley and inform their supervisors that Pelosi walked out of the briefing, mid-stream. Since CIA felt it was required to brief her -- and since Pelosi declared herself not briefed -- the CIA would then be compelled to try to re-brief her -- and would probably send a high-ranking official who could better explain the program.

What about insisting on meeting with the President and telling him that the procedures he had authorized were illegal? What about threatening to disclose them? Disclosing the contents of a classified briefing might be against the law. But so is torture.

Ambinder also offers this sympathetic read-back into Pelosi's circumstances at the time of the briefing:

But back in 2002, when more Americans (probably) supported those techniques than they do now (and most Americans support at least some of the EITs), and when Pelosi herself did not have the means or the legal knowledge to perform her own analysis of the legality of the techniques, and when the climate of dissent was quashed -- her reaction is understandable... maybe not, from our current perspective, excusable, although there is a range of opinion on that question.

Not to underestimate the pressure, and the enormous reservoir of goodwill that still belonged to Bush in September '02. And we don't know what Pelosi was told at that time. But if she was informed about, say, waterboarding -- would not the knowledge and values she walked in with be enough to recognize the procedure as torture? If not in the briefing, then after the fact?

Paul Krugman goes wobbly

Paul Krugman has been one of the most relentless critics of the Obama Administration's handling of the banking crisis, complaining early and often that the capital injections, the stress test plan, the Public-Private Investment Program to create a market for toxic asset sales, etc. etc. are rewarding failure, avoiding hard choices, "perpetuating zombie banks, blocking economic recovery."

He may be right. But he's showing some green shoots of doubt. Here's his current assessment of the stress test strategy:

What we’re really seeing here is a decision on the part of President Obama and his officials to muddle through the financial crisis, hoping that the banks can earn their way back to health.

It’s a strategy that might work. After all, right now the banks are lending at high interest rates, while paying virtually no interest on their (government-insured) deposits. Given enough time, the banks could be flush again.

After forecasting that the banks will not be well capitalized for a long time in the absence of massive government recapitalization, Krugman hedges again:

Can the economy recover even with weak banks? Maybe. Banks won’t be expanding credit any time soon, but government-backed lenders have stepped in to fill the gap. The Federal Reserve has expanded its credit by $1.2 trillion over the past year; Fannie Mae and Freddie Mac have become the principal sources of mortgage finance. So maybe we can let the economy fix the banks instead of the other way around.'

Then the pivot back to doomsday:

But there are many things that could go wrong.

Well, yes. But there are also many things that could go wrong with nationalization -- or any other plan. This is not to say that Krugman's core critique -- that Obama and Geithner are fostering zombie banks and shrinking from the full-scale industry restructuring that's need to put banking on a sustainable footing -- does not remain cogent.

But the Cassandra cry to which he devotes the second half of today's screed is pretty lame. He
worries that "the prospects for fundamental financial reform are fading." Evidence? That H. Rodgin Cohen, who was reportedly being considered for a deputy Treasury secretary position said a few days ago, "I am far from convinced there was something inherently wrong with the system."

Red alert! A prospective appointee is insufficiently zealous; ergo, Obama is going to wimp out on regulatory reform. Could happen, I guess. It's not yet clear how willing Obama is to break eggs, or heads, on any front where hard-core resistance threatens his core principles.

Nonetheless, it looks to me as if Krugman has downgraded his threat level a shade or two below orange.