Arms and influence

Casual Friday: Leonard Cohen's ode to democracy

If you've never heard Leonard Cohen's "Democracy," I urge you to click this link to the official video on YouTube. It seems strangely relevant these days.

Leviathan in Afghanistan

I guess Scalia wasn't kidding when he said that the Guantanamo Bay prisoners should count their lucky stars that they weren't in a different US facility, such as Bagram Air Base in Afghanistan.

American soldiers herded the detainees into holding pens of razor-sharp concertina wire, the kind that's used to corral livestock.

The guards kicked, kneed and punched many of the men until they collapsed in pain. U.S. troops shackled and dragged other detainees to small isolation rooms, then hung them by their wrists from chains dangling from the wire mesh ceiling.

Former guards and detainees whom McClatchy interviewed said Bagram was a center of systematic brutality for at least 20 months, starting in late 2001. Yet the soldiers responsible have escaped serious punishment.

The theme du jour here at Arms and Influence is the price we pay when we play games with the Constitution. Nothing about the 9/11 attacks, or anything that has happened since, has merited a revision of over 200 years of Constitutional interpretation. For example, as I said in the earlier post about Scalia's dissent in the Bournediene decision, the justices who arguing that the executive branch can make up any  criminal procedures it damn well pleases, when handling foreign prisoners in foreign lands, won't find any support in the Constitution itself. Nor will Scalia find support, in the Constitution or Federalist papers, for his peculiar argument that, if the Congress and President agree on how to treat these prisoners, the judiciary has no right to review and possibly overturn these policies.

We need these restraints in place to protect us from ourselves. During frightening times, the laws should keep us from doing stupid things. During wartime, the Constitution still applies, and the Supreme Court still has a role to play, other than stepping aside to let the President do anything he deems necessary to protect American lives.

Often, these measures to protect Americans do exactly the opposite. You can go back to Hobbes and Locke for the Ur-arguments about how, without "civil society," people are bad judges of cases in which they have been wronged. We're not in a state of nature today--nor should we construct one, in the name of defending ourselves. We should be preventing the mistreatment of Americans as prisoners. We should be robbing our adversaries of arguments that the United States is a brutal, imperialist power. And we should be preventing another terrorist attack on the United States. These are all compatible objectives.

Swaggering know-nothings who like to cite books they have not read will often pull out Machiavelli's famous dictum that it is better to be feared than loved. However, it's important to read hos whole argument, which Machiavelli, being a good writer, summarizes in the concluding paragraph of that section of The Prince:

Returning to the question of being feared or loved, I come to the conclusion that, men loving according to their own will and fearing according to that of the prince, a wise prince should establish himself on that which is in his own control and not in that of others; he must endeavour only to avoid hatred, as is noted.

Which is why the title of the book is The Prince, not The Thug.

[Thanks to Steve Taylor for the original link to this news story.]

Scaliaaaaaa, I just met a thug named Scalia...

The Bournediene decision may have restored habeas corpus, but it is not the end of the argument over how the US government should be treating prisoners at Guantanamo Bay and other prisons around the world. For example, there are still the four Supreme Court justices who didn't agree with the Court's decision. It's worth understanding what's on their minds in any future national security cases before the Court.

Rather than read about the Bournediene decision, go read it. Analyses like this one are interesting, but there's no substitute for reading the Court's own ruling, including Scalia's dissenting opinion. Some of Scalia's assertions include the following:

• Habeas corpus has never extended to people who are not US citizens.
• Many former prisoners, soon after release, return to the battlefield.
• The prisoners at Guantanamo Bay were lucky to be there, instead of a worse facility in Afghanistan or wherever the US military grabbed them.
• If we give prisoners a fair trial, we risk exposing "sources and methods" during legal discovery.
• Congress and the executive branch already decided that things like indefinite detention and military courts are necessary, so who is the Supreme Court to say otherwise?

It's tempting to knock down each of these points, one by one. For example, there's no substantiation that 30 former "detainees" went straight back to killing Americans. (The Washington Post article cited, for example, identifies only 10 former prisoners.) And if recidivism were a reason to keep people in prison forever, the number of prisoners in American jails would explode even more than it has already.

Unfortunately, a point-by-point refutation can't possibly fit into one blog post, and in any case, we can focus on at least one of Scalia's most egregious and frightening Constitutional misreadings. The Bournediene case includes the latest in a series of Scalia assertions that the judicial branch has no right to check the actions of the executive during wartime.

Here's Scalia in full sneer:

But so long as there are some places to which habeas does not run—so long as the Court’s new “functional” test will not be satisfied in every case—then there will be circumstances in which “it would be possible for the political branches to govern without legal constraint.” Or, to put it more impartially, areas in which the legal determinations of the other branches will be (shudder!) supreme. In other words, judicial supremacy is not really assured by the constitutional rule that the Court creates. The gap between rationale and rule leads me to conclude that the Court’s ultimate, unexpressed goal is to preserve the power to review the confinement of enemy prisoners held by the Executive anywhere in the world.

Leaving aside the absurd claim in that last sentence, the rest of the paragraph demands serious rebuttal. I can think of no better person to refute Scalia than James Madison:

It is agreed on all sides, that the powers properly belonging to one of the departments ought not to be directly and completely administered by either of the other departments. It is equally evident, that none of them ought to possess, directly or indirectly, an overruling influence over the others, in the administration of their respective powers

That quote from the Federalist Papers establishes the principle of overlapping powers. But how does that apply to jury trials? Happily, another author of the Federalist papers, Alexander Hamilton, addresses just this point:

A power to constitute courts is a power to prescribe the mode of trial; and consequently, if nothing was said in the Constitution on the subject of juries, the legislature would be at liberty either to adopt that institution or to let it alone. This discretion, in regard to criminal causes, is abridged by the express injunction of trial by jury in all such cases; but it is, of course, left at large in relation to civil causes, there being a total silence on this head. The specification of an obligation to try all criminal causes in a particular mode, excludes indeed the obligation or necessity of employing the same mode in civil causes, but does not abridge THE POWER of the legislature to exercise that mode if it should be thought proper. The pretense, therefore, that the national legislature would not be at full liberty to submit all the civil causes of federal cognizance to the determination of juries, is a pretense destitute of all just foundation.

In other words, the other branches of the government, both state and federal, might decide to change the civil courts. They cannot, however, change the nature of the criminal courts. The argument in Bournediene, Rasul, and Hamdan is not over the right of the executive branch to implement whatever criminal courts it wants, because that right does not exist. Instead, these cases are, according to the Constitution and  supporting documents like The Federalist Papers, the conformity of these courts to basic Constitutional principles.

Yo ho yo ho, a prison hulk for me

There are many things you just assume don't exist any more. Imagine your surprise if you round a corner and bump into a triceratops, or a trubechet, or a priest of Baal.

That's pretty much the feeling that I had yesterday, reading about the US government's use of warships as temporary prisons. in other words, the US government has revived the old practice of keeping people locked up in prison hulks, a contemptible practice that we thought disappeared with the Age of Sail.

To be fair, the story so far is about temporary imprisonment, not the years that prisoners spent on prison hulks in past centuries. Still, the practice makes sense. The US government need ways to move prisoners from point A (Afghanistan) to point B (Diego Garcia, near the Bay of Bengal), preferably in ways that concealed their identities, numbers, and locations.

Many elements of the story make a perverse sense. The two ships cited, the USS Peleliu and the USS Bataan, are amphibious assault ships, built to transport large numbers of people. Moving these ships into international waters may confuse the legal strictures on the treatment of these prisoners, in the same fashion that the Department of Justice argued to the Supreme Court that Guantanamo Bay was holding people who were not prisoner of war in a place that wasn't within US jurisdiction.

Rather than saying, "imagine your surprise," perhaps I should have started this post with, "If we exercised our imaginations a little bit, we wouldn't be surprised." The course of the Bush Administration's counterterrorism policies leads naturally to a ship full of prisoners, floating in the vastness of the Pacific.

Public diplomacy 101

You're campaigning to be President of the United States. Your campaign tells you that a Christian minister who is supporting you once called Islam as a "conspiracy of spiritual evil," and regularly makes similar disparaging remarks about that religion.

You know that, if elected President, Muslims around the world will remember how you handled this situation. What do you do?

(A) Drop him faster than a greased bowling ball.
(B) In preparation for the inevitable press conference, craft a statement that rejects the minister's words without denouncing the minister personally. (Kinda like, "Hate the sin, love the sinner.")
(C) Describe the minister as "one of the truly great leaders in America, a moral compass, a spiritual guide."

Sigh. Sadly, McCain answered C. After eight years of not-even-half-baked efforts at public diplomacy with the Islamic world, McCain isn't exactly signaling that he'll do a substantially better job.

If A then B then C

Patrick Radden Keefe's article in The New Yorker, "State Secrets," is a must-read. Even if the case of Pete Seda and the Al Haramein charity were not representative of federal prosecutions of people with "links" to terrorist groups, their story raises some important points:

• How many Americans are aware that the US government is claiming these powers? While I was at the Newseum this week, I enjoyed the displays that tested your knowledge of the Constitution and the Bill of Rights. The punchline, of course, was that the average American has a weak grasp of Constitutional protections and imperatives. How many Americans, therefore, know the Constitutional details that the executive branch may be violating through its counterterrorism policies, let alone the policies themselves?



• How much backlash are these policies creating? Even if you buy into the Cheneyesque "1% solution" approach to counterterrorism, anecdotes like the Al Haramein case may be raising the risk of terrorist attack beyond that 1%.

It's worth chewing on that second question a bit more. Federal prosecutors are pursuing the same maximalist strategy as other members of the executive branch. (And for many of the same reasons, which have as much to do with ass-covering as genuine fear of terrorist attack.) The natural result is the aggressive suspicion of "links":

In designating Al Haramain Oregon, Treasury Department officials cited “direct links” with Al Qaeda, but have never revealed the precise nature of those links. Stinebower, the former Treasury lawyer, said she was unaware of any internal definition of “direct links.” She wouldn’t discuss the particulars of the Al Haramain designation, but did say, “It wouldn’t have been sufficient that A picks up a phone and calls B, and B picks up a phone and talks to C, therefore A knows C. There would have to be more of a connection than that.”

There's another way of looking at these links: If federal prosecutors seize the assets and indefinitely imprisons A because B knows C, then there's a risk, however small, that A will actually look at C more sympathetically.

According to the Administration's own 1% logic, that's a risk that the nation should not bear.

Our American relative

Being in Washington, DC has certainly helped me get blogging again. New York may be grand; San Francisco, vibrant; Savannah, welcoming; or Chicago, muscular. No city in the United States can match Washington for its power to inspire.

Visiting the Newseum, the new museum of journalism, was an unexpected pleasure. I was braced for a lot of superficial, self-congratulatory pap. Sure, that did appear in the occasional nook or cranny (or multi-screen, Jumbotron-delivered montage), but by and large, the real theme of the Newseum is the Bill of Rights.

You get to see every point on the continuum of liberty, from old copies of the Catholic Index to the fall of the Berlin Wall. In fact, the extremely helpful guides suggest that you start at the bottom of the multi-story Newseum, which includes sections of the Berlin Wall and, more disturbingly, one of the guard towers that used to keep East Berliners from escaping to West Berlin.

Of course, the entire landscape of Washington, DC, is its own memorial to liberty. Not just the monuments, but the office buildings themselves, suggest important moments in American history, and the daily work to keep the American republic going. Here is the place where Martin Luther King gave his most famous (but not necessarily his best) speech. Here is the Carnegie Endowment for International Peace.

As difficult as the last several years have been, it's moments like these that remind me how much I love America. At its best moments, the United States has encouraged the conviction that everyone in this country is part of the same family, and that people abroad are just our distant cousins. All of them deserve the best treatment we can give.

Love of America is tricky. You can't govern the American family by imposing sentiment, as if our public moments were like an uncomfortable holiday gathering. Everyone must say the right things. Everyone must sit in their proper place. Don't mention any uncomfortable truths, for fear that these moments of manufactured amity will shatter.

Loving America is more like embracing a difficult relative. At times, it will do and say stupid things. The misbehavior might grow to such alarming proportions that you begin to question whether redemption is possible. Still, you persevere, in the hopes that things will get better. The brother who is skipping from one dead end job to another has an epiphany about how much better his life might be. The alcoholic aunt, at long last, checks into the rehab center. The United States decides that fear is not the best guide to domestic or foreign policy.

Love demands faith. In fact, love is faith. Not the type of faith that demands you believe in the unprovable, or the ridiculous, in the fashion of credo quia absurdum. Faith, in this sense, means the compulsion to do good, to persevere even in the face of your own incredulity.

This is the kind of faith shown, in the New Testament, by a Roman soldier who asks Jesus to cure his sick servant, even though he does not believe that Jesus has supernatural powers. Still, he must try any way he can to help his servant, which leads Jesus to comment, "Assuredly, I say to you, I have not found such great faith, not even in Israel!"

Even for the unchurched, such as myself, you can see the secular equivalent of this story.

We need many Madisons

I just finished Imperial Life In The Emerald City. You can never read enough about Iraq, since the catastrophe is larger than any single book can encompass. I'll have more to say about this book later, but one passage in particular stood out. The author, Rajiv Chandrasekaran, quotes an e-mail written by John Agresto, the person given the thankless task of reviving Iraq's higher education system, with no budget, in a country scarred by war and despotism. The e-mail was Agresto's bitter farewell to the Coalition Provisional Authority (CPA) at the end of his tour in Iraq:

America's been so successful at being a free and permanent democracy that we think democracy is the natural way to rule--just let people go and there you have it: Democracy. But all the ingredients that make it good and free--limited government, separation of powers, checks and balances, calendared elections, staggered elections, plurality selection, differing terms of office, federalism with national supremacy, the development of a civic spirit and civic responsibility, and above all, the breaking and moderating of factions--all this we forgot about. We act is if the aim is "democracy" simply and not a mild and moderate democracy. Therefore...we seek out the loudest and most virulent factions and empower them...

We, as a country, don't have a clue as to what has made our own country work, and so we spread the gospel of democracy-at-all-costs abroad. Until this country can find a Madison, it would be far better off with just a good ruler.

Agresto's frustation may have gotten the better of him. He overlooked the even larger tragedy: not all Americans would have handled Iraq in this fashion. Unfortunately, those ultimately in charge of the invasion and occupation didn't believe in the principles of "mild and moderate democracy" Agresto describes.

• Instead of limited government, we got a president who claimed the unlimited powers of a "unified executive," with war powers that do not exist in the Constitution.
• Instead of a separation of powers, or checks and balances, we had several years of Republicans in the White House, Senate, and House of Representatives who were (with a nod from a few members of the Supreme Court) eager to put all branches of government under the ultimate authority of the Presidency.
• Instead of the defense of the system of elections that has withstood two centuries of turbulent American history, we had people in the White House, Congress, and the Republican Party drooling over the idea of a permanent Republican majority.
• Instead of the development of civic spirit and civic responsibility, we got a leadership clique who shoved aside the qualified to hire the loyal, and who encouraged Americans to be uninvolved, as if we could defeat Al Qaeda by shopping at the mall.
• Instead of "above all, the breaking and moderation of factions," we had "leaders" who encouraged phony Red/Blue divisions; who were happy to fill the airwaves with shouting instead of discussing; who tried to make Americans believe that they should be as afraid of their next-door neighbors for having principled policy disagreements as they should fear young men willing to crash airliners into skyscrapers.

Mr. Agresto, the foreign policy fruit does not fall that far from the political tree. Fortunately, it's not the only tree in the forest. The Iraq war is not an American tragedy, in which a country's fatal flaws lead to destruction. It is the heart-breaking story of a very small, angry, defensive, and inept part of the country that shunned all the rest, but who made all the rest of us (and the Iraqis) pay the terrible price.

The FBI's NSL FUBAR

To no one's surprise, the FBI abused the expanded powers for domestic surveillance granted by the PATRIOT Act.

In a review focusing on FBI investigations in 2006, Justice Department Inspector General Glenn A. Fine found numerous privacy breaches by the bureau in its use of national security letters, or NSLs, which allowed the FBI to obtain personal information on tens of thousands of Americans and foreigners without approval from a judge.

Why NSLs are a BFD
If you need a refresher, NSLs gave the FBI the ability to poke around your personal information, such as finances, e-mail, and telephone calls, without the approval of a judge, grand jury, or even a prosecutor. Worse, if you are involved in this collection--for example, as an employee of a phone company turning over your cell phone records--you could not discuss the NSL with anyone. No asking your supervisor or lawyer whether this request was proper and legal, and most of all, no telling the target about the records search.

In 2007, a federal judge struck down the NSL portion of the PATRIOT Act. However, the decision dealt with the principle behind NSLs; it did not answer the question, How often did the FBI abuse this power?

The Inspector General's report expands the story beyond the less-than-credible internal FBI investigation:

According to Fine's report, the FBI continued to rely heavily on national security letters in counterterrorism, counterintelligence and cybercrime investigations, issuing nearly 50,000 of the documents in 2006 alone. Nearly 200,000 were issued from 2003 through 2006, the report said, and were used in a third of all FBI national security probes during that time.

Even more important than the scope of abuse is its cause:

The pattern persisted in 2006, Fine concluded in the report issued today, in part because the FBI had not yet halted the shoddy recordkeeping, poor oversight and other practices that contributed to the problems. He also said it was unclear whether reforms enacted by the Justice Department and FBI last year will address all the issues identified by his investigators.

So much for technology
It's worth digging into some details of that "shoddy recordkeeping." A few years ago, you probably skipped any articles about the FBI's problems implementing a "case management system." However, this story, which got no attention outside a few journals that cover computer technology in the federal government, is perhaps one of the best examples of how things went horribly wrong with counterterrorism during the Bush years.

Since most people haven't heard of a case management system before, here's a quick explanation of what it is. Many legal and government jobs are all about opening and closing cases. For example, a lawyer needs an efficient way to collect and organize the information about a particular court case. At the same time, that lawyer's boss is scrutinizing how quickly and effectively the lawyer handles the case, so the case management has an important managerial function as well. The case management system, for everyone from trial lawyers to FBI agents, is where that person spends a large, important amount of time each day. (If you want more information about what these applications do, click here for the American Bar Association's ratings for various case management systems.)

For several years, the FBI tried, and ultimately failed, to implement a case management system. The following headlines from Government Computer News give a nice summary of what happened:

• FBI plans to build new case management system from scratch (12/30/04)
• Senators fume as FBI admits Trilogy foul-ups (02/04/05)
• Cold case (03/07/05)
• FBI takes another swing at case management with Sentinel system (05/24/05)
• Report: FBI ‘scrambling’ to launch case file system (06/06/05)
• Justice, FBI to overhaul fingerprint and case management systems (08/29/05)

As the FBI's case management project crashed into a brick wall, the FBI kept on issuing NSLs at a furious rate--200,000 between 2003 and 2006, according to the Inspector General's report.

Last year, the FBI finally announced that it was ready to launch the new system, six years after the 9/11 attacks. The old case management system, based on 1970s-era technology, was already a failure, since many FBI employees avoided spending time entering data into it. (That's a familiar problem, by the way, with many systems that ask people to stop what they're doing and type up their notes.) All talk about "service-oriented architecture features that facilitate information exchange among law enforcement systems" aside, there's still an open question about getting people in the FBI to use any system, new or old.

If this were the only example of information technology (IT) projects in the FBI that went south, you might chalk it up to bad luck, peculiar difficulties with this sort of system, or the team working on that particular project. However, the FBI has fumbled many IT projects, including the useless terrorist watch list database. In 2007, another Justice Department IG report found that the FBI was losing laptops at a rate of 2.6 per month.

So, let's summarize:

• The Bush Administration pushed to expand the warrantless surveillance powers of the executive branch.
• The "point of the spear," the FBI, has depended on antiquated systems to store, secure, and analyze this information--when FBI employees were using these systems at all.
• A major overhaul of the case management system, needed to track sensitive information collected via NSLs and other mechanisms, was a long, expensive failure.
• There's no evidence that the White House put pressure on the Justice Department to fix these problems.

Should the results be a surprise?

There are certainly people to blame, such as the Chief Information Officer of the FBI, Zalmai Azmi. However, as implied in the bulleted list above, it's also up to the President and his staff to pay attention to these details. It's also important for the US public to mind these details more carefully. Millions of taxpayer dollars spent, thousands of breaches of privacy, and not one terrorist attack stopped.

Flag hags

Whether or not you support Obama as your candidate, you have to respect his response to the Great Flag Pin Non-Issue:

Far more notable is Barack Obama's response to these depressingly familiar attacks. In response, he's not scurrying around slapping flags all over himself or belting out the National Anthem, nor is he apologizing for not wearing lapels, nor is he defensively trying to prove that -- just like his Republican accusers -- he, too, is a patriot, honestly. He's not on the defensive at all.

Finally. It's not just years, but decades overdue for a prominent political leader to take exactly this stand.

One day during my high school years, I chose not to rise for the Pledge of Allegiance. A daily compulsion to demonstrate my patriotism seemed wrong on the face of it. My fidelity to the United States, the republic for which the flag stands, should be assumed. The next day, I made the same choice. And you can guess what happened next.

The school was very uncomfortable with my stance. In only a day or two, nearly all my classmates and teachers knew I was the guy who wouldn't stand for the Pledge of Allegiance. Because they had to enforce pledge-making every morning, teachers had, by and large, a bigger problem with my stance than my fellow students.

The more that people showed their discomfort with the exercise of my liberties, the more I dug in my heels. The situation escalated to the level where the principal felt he should have a talk with me. To his credit, the principal tried to persuade instead of threaten me.

Once it became clear that I wasn't driving other students to join the Communist Party, and the angry fist of God wasn't going to descend on our school, the controversy subsided--at which point, on a regular basis, I started saying the Pledge again.

My concerns about flag fetishism continue, however. Clearly, there are unscrupulous people who use the flag as a club against their political opponents. The non-existent flag burning crisis bullied its way onto political stage during every major election in which I've voted. There's only thing more appalling than the transparent cynicism behind these anti-flag burning campaigns: the non-response on the other side.

Rather than duck silly questions about the flag, political leaders of any real merit should face them head on. They're the easiest questions of principle to answer:

I choose whether or not to wear a flag pin. That choice is my right. That choice is what makes this country great. Your concern is, perhaps, better directed towards someone who wants to remove that choice.

I love the United States. A few weeks ago, when my daughter and I were driving around Washington, DC, I felt my heart skip a beat when we passed the the Jefferson Memorial, the Smithsonian, and the Washington Monument. Nobody can force you to have that feeling--and no one should ever try.

Responsibilities, not opportunities

Political events since the 2006 mid-term elections have played out in exactly the way I feared they might. Having taken control of Congress, the Democrats have done practically nothing to change the formula for fighting the war. Meanwhile, the presidential race has been a distraction, or worse, an excuse for delaying until 2009 what should have started in 2007 and 2008.

If, as the Democrats and Ron Paul have argued, the Bush Administration has broken laws and the Constitution, the other branches of government have a responsibility to respond. With Bush's personal approval rating at 19%, it's hard to argue that political realities stand in the way of discharging these responsibilities.

People won't stop dying, or having their bodies and psyches mangled, before January 2009.
However, Inauguration Day represents one important deadline. Either the Constitution is the final arbiter of American politics, or something else--perhaps the popularity of candidates--is. Therefore, in the face of any wrongdoing, the people who swear to protect the Constitution as that ultimate authority do not have the luxury of waiting until it is convenient to do so.

2008 may be an historic election.  If the first female or African-American president places a hand on a Bible and swears to preserve, protect, and defend the Constitution, it will be an open question exactly how much of the Constitution has survived the previous eight years.

"Endemic surveillance"

It's clear from this analysis that countries electronically monitor their own citizens because they want to, not because they can.

The top tier, evocatively named "endemic surveillance societies," include Russia, China, the United Kingdom, France, Singapore, Malaysia, Thailand, Singapore, and the United States. If surveillance were merely a matter of capability ("Hey, we have all this eavesdropping technology already manufactured or widely sold in this country--let's put it to use!"), you'd expect more European countries, and perhaps Canada, to appear on the list.

Instead, political considerations seem to be behind "endemic surveillance." The countries in the top tier fall somewhere on a continuum between concerns about terrorism (say, the UK) and an interest in maintaining internal political controls (for example, China). Surveillance at this level isn't free, so you'd expect motivation, not capacity, to be a key factor.

The good news is that terrorist attacks don't automatically inspire a high level of eavesdropping. Countries like Canada, Italy, Spain, and Germany have certainly had their fill of terrorism; however, they haven't jumped to the highest level of surveillance because of potential "enemies in our midst." They also have a pretty good record of fighting terrorism, so it would be wrong to conclude that it's only the counterterrorism milquetoasts who stay away from heavy surveillance. On the flip side, it'd be hard to say that Russia has an admirable counterterrorism record.)

In a way, this Privacy International study is good news. The science fiction writer David Brin argued that endemic surveillance is a technological inevitability, to the point where privacy will cease to exist. The facts appear to contradict Brin: many societies choose not to monitor their own citizens, even though they could purchase and deploy the necessary technology.

Among some of the happier conclusions from this study: "The privacy performance of older democracies in Europe is generally failing, while the performance of newer democracies is becoming generally stronger." In other words, the less jaded you are about democracy, the more likely you are to protect privacy rights. Something worth remembering during the campaign season here in the United States.

[Thanks to Lawyers, Guns, and Money for the pointer.]

Christmas in California

Unless you spend your holiday in a mountain retreat like Lake Tahoe or Idyllwild, Christmas in California does not resemble the familiar yuletide imagery.  The Christmas landscape in the mythic, frozen moment of suburban American Godtime is smothered by snow, sheeted in ice. In the suburban reality of most of California, Christmas is a season of water. Rain makes its infrequent and therefore welcome visits to Southern California, delivering the gifts of added moisture to the irrigated desert and chaparral. Rain stays much longer in Northern California, as dreary by spring as the neighbor who leaves his Christmas lights hanging through Easter.

Of course, Christmas is the time when we embrace the world as we wish it would be, instead of the way it is, so Californians resolutely surround themselves with the iconography of Christmas for the 19th century British yeoman, or the 18th century New England townsperson. While focused on these snowy images, Californians try to ignore the rain. On the freeway, drivers either continue with the same speed and ferocity they use on sunnier days, or they slow down far more than practically necessary, but enough to silence their fears of what might happen to them during these unusual deluges.

Californians are not the only breed of Americans who either ignore the reality of December altogether, or become overwhelmed by it. Without the snow, we're just a bit more obvious in our habits. Elsewhere, Americans work hard at making the Christmas moment exactly right--whether that moment occurs when the children awaken on Christmas morning, or when the visiting relatives arrive from the airport, or when  loved ones have just the reaction for which you had hoped when you bought them the presents they're just unwrapping. Americans have a determined vision of how their Christmases should be.

Some people are good at making these moments happen. They're the people who have empathy with and  insight into the other people involved in these rituals. You have to know that Christmas morning is for the children. You learn to accept the accidental breaking of a $50 toy, or the year when your child is too old for Santa. You understand why relatives might want to visit, other than a flinty sense of obligation. You give gifts freely, without imposing another kind of obligation, the insistence that the recipients tell you exactly why they love their presents, whether or not they actually do.

The people who are bad at the Christmas moments are the ones who try to force everyone into the correct posture, words, and feelings. While the Godtime version of Christmas may provide important lessons about generosity, love, mirth, and renewal, these are exactly the things that cannot be compelled. Gifts become reciprocal duties, for the giver to give, and the receiver to receive, each in the proper way. In staged photos of families, friends, or co-workers, a rictus grin belies the real emotion of the moment. The fallacy of the statement, "It's Christmas, why can't you enjoy yourself?" is lost on the speaker.

Still, there are people who try, year after year, to enforce Christmas correctness. A dominating parent or an overbearing boss may have the skill to coax, bribe, whine, or intimidate people around them into assuming their place and pose in the Christmas tableau, as fixed and unlovely as the plastic Nativity figures that used to decorate the lawns of many Americans.

What does all this have to do with the usual topic of this blog? Everything.

In December 2007, many Americans are baffled that other countries don't want to take their places in our political tableau. We insist that we are loving, and we only want the best for them. Why then all this strife?

Perhaps if, during the rest of the year, we can't understand the reasons for resentment of the US occupation of Iraq, or the outrage over secret prisons, or the willingness to work with authoritarian leaders like Pakistan's Musharraf, or Uzbekistan's Karimov, Christmas lift the collective veil from our eyes. The American political vision is both moral and beautiful--much like the American imagery of the holiday season. It may not, however, ever completely resemble what exists in other countries. Even if the Framers had devised the perfect political system, it's not something that we can dictate to other societies. Allowing them to embrace it, or some version of it, is far better than insisting on it.

In other words, we have to be deft, not merely willful. Willfulness alone inspires resentment, not respect. Iraqis are neither children nor savages; therefore, it's unfair to them to suggest that democracy and the rule of law were doomed from the beginning. However, a constitution handed to the Iraqis by an occupying power was, unsurprisingly, not welcomed; looking for an alternate political identity, many Iraqis retreated into the factionalism that was both familiar and, as the violence increased, practical.

I don't mean to trivialize the war in Iraq by comparing it to a strained family gathering at Christmas. Far from it: I hope that, by recognizing the discomfort or pain some feel during the holidays, they can understand what a small fraction of unhappiness that is, compared to the plight of the average Iraqi or Afghan. In both cases, the insistence on a vision, even the most lovely or humane one, can have unlovely and inhumane results.

Enjoy the holidays, but don't be forced to enjoy them. Use the opportunity to make your friends and family, plus the people you hardly know, feel loved for who they are.

Votes bearing fruit

Matt Shugart's Fruits and Votes is one of the few places on the Internet where you can hear about the electoral experiments occurring in other countries--and all too rarely attempted here in the United States. Matt's an expert in these sorts of electoral machinations, such as Canada's recent dalliance with "mixed member proportional representation," or MMP.

Matt has a lot of smart things to say about other topics, from Iraq to baseball (a great sport, to be true, but still second to football in this blogger's heart). Go check it out.

One bomb away

A stock character of bad spy thrillers is the villainous government bureaucrat whose fetish for power and control vastly outweighs national security concerns. You’ll find this sort of character rubbing his hands with glee whenever there’s an excuse for declaring martial law, or bombing another country for the sake of rallying the country behind a faltering chief executive. Burt Lancaster played to this type in Seven Days In May, a Cold War movie about a MacArthur-like general quietly engineering a coup against the President.

In the real world, you don’t find many of these people, and they don’t normally get a chance to use governmental power to advance their perverse ends. National security bureaucrats have to at least maintain the appearance of working in the country’s interests. If the Dark Side takes them over, there are normally plenty of laws and regulations, not to mention simple bureaucratic inertia, to thwart any evil plots.

It’s startling, therefore, to read about people whose moral and political priorities are so out of whack that they see a terrorist attack as being politically useful. That’s why we’re probably going to read the following quote from Jack Goldsmith’s new book:

[Goldsmith] shared the White House's concern that the Foreign Intelligence Surveillance Act might prevent wiretaps on international calls involving terrorists. But Goldsmith deplored the way the White House tried to fix the problem, which was highly contemptuous of Congress and the courts. "We're one bomb away from getting rid of that obnoxious [FISA] court," Goldsmith recalls Addington telling him in February 2004.

Here’s another revealing passage, courtesy of Glenn Greenwald of Salon:

In his book, Goldsmith claims that Addington and other top officials treated the Foreign Intelligence Surveillance Act the same way they handled other laws they objected to: "They blew through them in secret based on flimsy legal opinions that they guarded closely so no one could question the legal basis for the operations," he writes.

If you’re shocked, please go now to the restroom, take a good look in the mirror, and slap yourself in the face. Goldsmith adds another detail to the Bruegel-esque portrait of the Bush Administration, a collection of narrow-minded burghers partying through the wreckage of the American political system.

You should not be surprised to hear that they have been deliberately ignoring or contravening established laws and procedures to see if anyone would actually enforce them. There are, of course, two steps to the law, making it and applying it.

You should not excuse them because “9/11 changed everything,” or they say that they had the best interests of the country in mind. In the real world, no villain ever says, “You got me, copper, I had no good reason for committing that crime.”

You should not ignore the results of these policies. There isn’t any “Whoops” in national security. Politics is the realm of results, and the laws and procedures that people like Addington, Gonzales, Yoo, and others worked very, very hard to wreck instead of fix existed for a very good reason, the results they produced. The former lottery commissioner of Texas, his allies, and his employees decided that the rules designed to ensure accountability, protect Constitutional liberties, and more effectively deal with threats to the United States should be felled, root and branch.

The results? The Al Qaeda of 2007 is nothing like the Al Qaeda of 2001, but it is still a potential threat. We need the cooperation of other countries to fight trans-national terrorists, but we enjoy less international cooperation than we did before the 9/11 attacks.  The extreme secrecy of the Administration has allowed a string of bad decisions, of which the Iraq occupation is only the most conspicuous, to be made without review or challenge. Americans have no idea how significant the terrorist threat to them might be.

However secretly the decisions were made, the challenges to the existing national security procedures and institutions happened in plain sight. The traditional counterweights to Presidential power, the Congress and the press, shrugged when they should have questioned.

If the “one bomb” exploded today, who would oppose further steps the Administration might take? Law requires both passage and execution. Politics requires both opinion and action. Turn off the eleventeenth presidential debate, turn on CSPAN, and hear what your representatives are doing to prevent other mistakes. If they’re not doing what you think they should, take your lunch hour to visit their offices, in person, to tell them what you think.

The information war comes to YouTube

I have mixed feelings about the posting of insurgent videos on YouTube. I definitely don't think it's a cut-and-dried issue, as Muninn over at Quoth the Raven implies. Here are the statements of fact and principle that amount to my own viewpoint:

• Iraqi insurgent groups are using the Internet to recruit. Videos such as this one are one tool among many, which include web sites, forums, chat, and other forms of Internet communication.
• YouTube is both a commercial entity and a public space. As such, it has some responsibility for the content on the site. Copyrighted material is definitely a no-no; by choice, YouTube has also decided to delete any pornography on the site.
• Americans can handle graphic depictions of violence. Hell, go down to your local movie multiplex, and you'll see at least one movie that revels in carnage. If the shock value is higher when you know that you're looking at a real death, instead of a simulated one, so be it.
• Americans need to see the real face of war. Not only can they handle it, they should be handling it. In other words, we should see the consequences of our decisions, instead of having them pushed off-screen by anyone from military censors to network news executives worried about "offending" the audience.
• American officials need to be good at the information war. I've been worried from the beginning of the wars in Afghanistan and Iraq about the US government's amateurism in this critical part of counterinsurgency and counterterrorism. The result? Clumsy efforts at putting a happy face on disturbing facts, when a more honest appraisal would have won public support. The laughable "shiny, happy Muslim-Americans" video. For years, flawed efforts in Iraq and Afghanistan at fighting the information war.
• The argument that, "If terrorists can post pictures and videos of carnage, the terrorists win," is false. If Americans are that easily intimidated, the US shouldn't try being a superpower. If US officials can't put images of violence in context, they're in the wrong jobs.
• In a free society, you have to err on the side of openness.

Where do these bullet points lead? To at least a couple of conclusions:

• If YouTube can police pornography, its employees can track the posting of insurgent videos.
• These videos should be taken down when they are clearly, overtly designed to be recruitment tools for organizations currently fighting US troops.
• Video of real violence is not inherently offensive. Therefore, it's entirely possible that the same scenes of sniper and IED attacks could be posted, as long as they're not tied to insurgent recruitment efforts.
• Six years into the Iraq war, American officials need to win the information war without falling back on censorship. The US government can only win the wars in Afghanistan and Iraq by formulating coherent, convincing arguments, not squelching the enemy's communications.

I invite you to ponder that last point for a while, particularly as the debates about Iraq and Afghanistan focus on how many troops we should deploy, or how respectful we should be of Pakistan's territory.

Hamdan released soon?

I'm not sure why many news reports didn't make the connection, but one of the two Guantanao Bay prisoners whose charges the US military dropped this week was Salim Ahmed Hamdan, the plaintiff in Hamdan v. Rumsfeld. The US military took Hamdan into custody in 2001, and finally got around to charging him with a crime in 2003.

The Supreme Court ruled on Hamdan in 2006, ordering the Department of Defense to start having real trials or release the prisoners. A year later, in 2007, the DoD has decided that it didn't have a case against the eponymous Hamdan.

UPDATE: I misstated in the original post that Hamdan was released. Wishful thinking. I should have said, "Charges dropped."

Official soundtrack: TV On The Radio

The "life intrudes" thing that has kept me from blogging for several days just kept on intruding. Before I return to the sound of my own words, I wanted to share someone else's. TV On The Radio, a group that only recently has caught my attention, released a song in 2005, "Dry Drunk Emperor," that deserves to join Warren Zevon and Bruce Springsteen as part of the official Arms and Influence soundtrack.

Here's a link to the song and lyrics. (Will someone explain why the iTunes store doesn't carry this song?) Thanks to General J.C. Christian for the pointer to this song.

Serenity through emptiness

In case you missed it, The Tao of Gonzo is a hilarious read.

What oversight looks like

Although the US attorney imbroglio isn’t really about national security, the man at the heart of this controversy, Alberto Gonzales, certainly bears a great deal of responsibility for the Bush Administration’s counterterrorism policies. As White House counsel, he famously described the Geneva Conventions as “quaint.” He continued the traditions of his predecessor, John Ashcroft, trumpeting in press conferences the importance of particular terrorism prosecutions that often proved far less than what they seemed, such as in the Lodi case, or overturned, as in the Detroit case. (Meanwhile, the Department of Justice spent no small amount of time and resources on iffy anti-pornography cases, apparently at the instigation of a Republican political ally.)

By nearly every measure, such as conviction rates, the Department of Justice since the 9/11 has done very little to make Americans safe from whatever terrorist threats exist. The DOJ’s leadership has contributed to the confusion about the size and imminence of that threat, and has almost completely dropped any mention of domestic terrorism. Americans have almost no idea of how many Attas and McVeighs wait in the shadows, or what the US government has done, on the domestic side, to stop them. For any terrorist cells that may attack targets in the United States, the DOJ has already completed much of the job for them, allowing fear to remain unchecked by the facts.

How has someone as ill-suited for his job held on to it? Before this year, Gonzales has smirked his way through any questioning by Congress or the press, secure in the knowledge that he didn’t have to suffer any serious scrutiny. As long as his employer remained happy with his performance, according to a different set of measures than the ones I’ve outlined here, Gonzales was safe.

It’s clear from his disastrous performance yesterday that Gonzales underestimated the change wrought when the Democrats took control of both houses of Congress. Despite weeks of preparation, Gonzales looked less like the chief law enforcement officer of the United States, and more like a not-very-smart tyro called into the principal’s office. Obviously, his old shtick failed, because his audience wasn't the same.

Since 1994, Congress under Republican control has done a steadily worse job of oversight. Yesterday, we saw what we’ve been missing. Not only was a public official held accountable, but the questioning itself was vastly better than what we’ve seen out of the Senate or House. Russ Feingold was especially impressive, proceeding through tough questions without rancor, maintaining control over the dialogue with Gonzales, avoiding the impulse to speechify that often dilutes and distracts from the real business at hand.

Gonzales’ testimony also gave Americans a clear window into the decay within the executive branch. Not just in the Justice Department, but in other critical agencies involved in national security, loyalists with very thin resumes have held key positions. While you might expect the occasional Cabinet secretary to be less expert in, say, trade policy than civil servants in the Department of Commerce, the Bush appointees have shown an unprecedented and unnecessary contempt for the professionals in their agencies. For example, when Porter Goss became the Director of Central Intelligence, he and his staff caused an exodus of CIA professionals. Just as Gonzales had his Sampsons and Goodlings, Goss brought his cadre of inexperienced loyalists. Gonzales is just another echo of how the Bush Administration has governed.

Congress has to do more than just get in some zingers, however. There are plenty more steps to be taken, especially since the executive branch has yet to provide full set of documents about the US attorney firings. Meanwhile, we can ponder why on earth Gonzales allowed himself to be humiliated—or, for that matter, how the White House allowed Thursday’s spectacle to happen.

The weird world of TV news

I'm at a professional conference this week, which is why I've been slow on the posting the last couple of days. Being in a hotel room is one of those rare moments when I encounter TV news. Normally, I get my news through the Internet, including both text and audio. At home, I never watch TV news at all. However, putzing around my hotel room in the morning, getting ready for the day, I inevitably flip on the TV. Being who I am, my attention naturally gets snagged on the news.

However, it's as though I'm experiencing a different species of communication than my normal news sources. TV news outlets seem in a state of perpetual agitation, barely able to keep up with the bewildering array of possible threats. The anchorperson has barely mentioned the latest IED casualties in Iraq, or the latest incident of food contamination, before jumping to the next dire peril. There's no time to discuss how serious these threats may be, but there is time for something that provides a temporary island of comfort in a sea of troubles. Here's the dog who found the missing boy. Thank goodness for savior dogs! Next up, teens out of control.

Although I don't watch TV news, I occasionally read The Daily Howler, an acid critique of the news in all forms. One of the regular themes of the Howler is the astounding lack of knowledge that many reporters and analysts display.

I got a dose of this ignorance in just a few minutes of watching CNN. The reporter covering the controversy around the DOJ attorney firings ended his segment with the statement (I'm paraphrasing here), "Of course, this confrontation has turned political. The White House is worried that, if subpoenas are issued on this topic, Congress will start issuing more subpoenas and holding more hearings on no end of issues." Well, gee, Mr. Anchorperson, that's actually Congress' Constitutional role. We just happen to have lived through a sad time when Congressional inquiries hit an all-time low.

The weirdness continued. A different network apparently thought that carnage in Iraq isn't interesting enough, so they kept moving and re-coloring the picture of the anchorwoman while she was talking.  A different anchor kept a serious face as she segued from Iraq to Anna Nicole Smith.

I couldn't take it any longer--and that was just a few minutes' exposure. Honestly, I don't know how Bob Somerby, the author of The Daily Howler, is able to stay sane. God bless him for what he does. Oh, yeah, and that savior dog, too.

Why I won't vote for Hillary

IN THE NEWS
Hillary Clinton is, without a doubt, one of the most vexing American politicians. By "vexing," I mean. "Someone whom I should like better, but whom I can't." There are plenty of pluses and minuses about Clinton, from her clear stand on the Confederate flag (yay!) to her pandering on flag burning (boo!).

What ultimately makes it impossible for me to contemplate voting for her for president has nothing to do with her positions or personality, however. During the last few years, the US Constitution has been bent, spindled, and mutilated. Americans need to return to their own Constitution, respecting its wisdom and understanding the reasons behind its restrictions.

When the Framers wrote the Constitution, national survival was largely in question, far beyond anything that international or domestic terrorists can throw at us today. A European power might have invaded and conquered the new American republic, or it might have split apart. Nevertheless, the Framers created rules that applied during both war and peace, instead of creating a document full of exceptions in case of national emergency.

Therefore, I'd hate to see our fidelity to the US Constitution compromised further, once a new president sits in the Oval Office. The fact that Hillary Clinton's husband is a former two-term President casts a big Constitutional question mark over her candidacy. Since Bill Clinton is unlikely to act as mere wallpaper to her hypothetical presidency, would his role as the "First Gentlemen" be Constitutionally permissible? Do you want to be arguing that point for four to eight years? Could you live with the implication that politically prominent families, such as the Bushes and Clintons, follow a different set of rules than the rest of us?

When I step into the polling booth in November 2008, I won't merely be voting for a presidential candidate. I'll also be voting, in the strongest way I can, for the US Constitution. For that reason, I know that I won't be able to vote for Hillary Clinton, regardless of what she says or does for the next year and a half.

A poem to Congress

IN THE NEWS
Today's a busy day, work-wise, so I'm not likely to do much posting. I'll leave you with a poem that I first heard on Garrison Keillor's Writer's Almanac.

"To the Congress of the United States, Entering Its Third Century"
by Howard Nemerov

because reverence has never been america's thing,
            this verse in your honor will not begin "o thou."
but the great respect our country has to give
may you all continue to deserve, and have.

         *         *         *
here at the fulcrum of us all,
the feather of truth against the soul
is weighed, and had better be found to balance
lest our enterprise collapse in silence.

for here the million varying wills
get melted down, get hammered out
until the movie's reduced to stills
that tell us what the law's about.

conflict's endemic in the mind:
your job's to hear it in the wind
and compass it in opposites,
and bring the antagonists by your wits

to being one, and that the law
thenceforth, until you change your minds
against and with the shifting winds
that this and that way blow the straw.

so it's a republic, as Franklin said,
if you can keep it; and we did
thus far, and hope to keep our quarrel
funny and just. though with this moral:—

praise without end for the go-ahead zeal
of whoever it was invented the wheel;
but never a word for the poor soul's sake
that thought ahead, and invented the brake.

Debating debate

IN THE NEWS
Poliblogger explains what the Senate is or is not debating, and why they're debating it. Or what people are debating in the press. My brain hurts, Senator Gumby.