Feeling Safer Yet?–Part I

With the Democrats’ acquisition of subpoena power, we will start learning in nauseating detail just how badly the Bush Administration has undermined American national security (thus, the new category). Already, we’ve been getting dribs and drabs, including this overlooked nugget from an excellent piece in TAP by Lawrence Korb and Max Bergmann, pointing out that there are no troops left to “surge”:

Currently there are no active or reserve Army combat units outside of Iraq and Afghanistan that are rated as “combat ready.” To ensure that troops fighting in Iraq have the equipment they need, units rotating out of Iraq have been leaving behind their equipment for units taking their place. The units that return home are so depleted that the Marines have been referring to this phase as the “post-deployment death spiral.” The additional units sent to Iraq would not have enough body armor, radios, and armored vehicles or training (since without equipment, non-deployed units cannot train properly).

In an effort to equip these additional units, equipment would have to be taken from troops stationed in places like Korea and National Guard units in the United States. This would leave the country dangerously exposed, without sufficient force strength to deter potential adversaries from possible aggressive action.

NO active or reserve Army units outside Iraq and Afghanistan that are combat ready? None? Recall that candidate Bush attacked Clinton in 2000 for inadequate readiness, a charge that (like virtually all public statements he has made) was a lie.

We can place too much emphasis on the readiness measurement, but this does appear to be evidence that Bush has violated his oath to “defend” the Constitution. His best excuse here is that the oath does say that he will do so “to the best of my ability.” Talk about the soft bigotry of low expectations.

Stern report 1: why has Sir Humphrey turned green?

Stern report on the economics of climate change: first part of a multi-post comment

  • Climate change presents a unique challenge for economics: it is the greatest example of market failure we have ever seen.


  • There is still time to avoid the worst impacts of climate change if strong collective action starts now.



  • It is already very clear that the economic risks of inaction in the face of climate change are very severe.


These messages give the radical flavour of the Stern report, a large study on the economics of climate change published, surprisingly, a fortnight ago by the stuffy British Treasury. It bears the name of the Whitehall mandarin and LSE professor Sir Nicholas Stern, the former head of the British Government’s economics service and Chief Economist at the World Bank.

So this is a political as well as an academic document. Why is Gordon Brown sponsoring it?

Continue reading “Stern report 1: why has Sir Humphrey turned green?”


Three rabbis ordained in Dresden.

Unalloyed good news is rare, so I wanted to raise my virtual glass to this. Last Thursday three rabbis were ordained in Dresden, the first in Germany since the Holocaust. (I wonder if “ordination” is the right technical term?) The rabbis trained at a Progressive rabbinical seminary attached to the University of Potsdam; another Orthodox college in Berlin will graduate its first rabbis soon.

There was apparently a lot of coverage in the German media – see here for the ZDF (German public TV) report. The BBC ran the story prominently too.

Why did the community choose Dresden for the ceremony, as it’s 125 miles south from Berlin or Potsdam?

Continue reading “Roses”

Alito, judges, and moral values

I was a little sore at Prof. Bainbridge for using my post on Alito as a punching bag in a way that would be off the mark if he had read the whole thing, so I held off responding until now. I’m also impatient with the straw man dichotomy between judges who respect the law meticulously and judges who careen in all directions recklessly doing whatever they want, as though those distinct types comprise the universe of choice. Mark’s post below demonstrates one central way in which even a very conservative judge’s fundamental beliefs will affect his decisions. But there’s more to this.

In the first place, cases that come to the Supreme Court are hard cases, meaning that legitimate values (including values set out abstractly in laws like the constitution) and settled laws conflict. Decisions may turn on whether the value of stable expectations (“an old tax is a good tax”) or protection of a constitutional right (“a poll tax for voting is not a good tax”) should count more to decide the case at hand, and no parsing the technical record of law will answer this, any more than scrutiny of the nutrition label will help you decide whether to make your kid’s birthday cake from chocolate or vanilla mix. The kind of values justices hold in especially high regard will tilt decisions on the whole one way or another, and it’s entirely appropriate for the president and the senate to try to read these values and use them in making appointment decisions.

Prof. Bainbridge does corporate law, a context in which the parties are usually not people, have no human rights, and cannot suffer (I know, shareholders and employees figure in it) and in which the issues for all I know can always be settled by reference to statutes. But among the laws important to appellate practice is the constitution, whose preamble says its purpose is to “establish justice”, an abstraction that simply cannot be used without interpretation and specification for cases. At one time, that word meant a defendant should only have to put his hand in the boiling water for a few seconds to see if he was guilty – that it would be unjust to cook him until his flesh fell off the bones. Now we have a different idea, Miranda rights and such like. But what it means in practice will always depend on its expression in the mental constitution of judges, an expression that cannot be blank, nothing, or labile and contingent on the case at hand.

The idea that a decision must properly flow only from the enacted statutes (the unique expression of political will) of a state and not from the contradictory holdings of lower courts which are to be resolved, or precedents of higher courts, is the foundation of the Roman Law model that contrasts with the Common Law system used in Anglo-Saxon countries, including ours. It may or may not be a better system, but we haven’t bought it; in any case, it doesn’t work the way it’s supposed to even where it lives, as the immortal 1976 Hastings Law Review article by Prof. Merryman (“The Refrigerator of Bernard Buffet”) demonstrates.

It is also impossible to decide the big cases properly looking through a knothole only at the law. Even tough conservatives seem to think Brown was decided properly, and that holding depended greatly on sociological research by academics. In using evidence like this, the relative weight of different moral values of the justices has to matter (I don’t mean this normatively, I mean it positively): my problem with Alito is simply that the moral value of human rights and justness seem to be fairly far down his salience scale compared to other things that matter to him. This will matter when he votes on close cases, and it’s entirely an appropriate concern of the Senate and the public.

How to Write Talking Points–Alito Edition

Kevin Drum is unsure about what the “battle cry” against Alito ought to be. After all, he notes, Alito hasn’t really come out and said anything outrageous.

Is Alito fudging furiously? Probably. But it still doesn’t give liberals much of a purchase to lead a battle against his nomination. Subtle arguments about the nature of stare decisis and the precise extent of the president’s Article II powers just aren’t going to get very many people ready to take to the streets with pitchforks. So what’s the battle cry?

Here’s where it’s a political liability that Drum is smart, principled, and intellectually honest. The point here is not to have a subtle debate about jurisprudence. It would be tremendous if we could actually have one, but when pundits start talking about having a “public debate” about an issue, that’s when I get little nauseous.

The formula here is actually much simpler. Here’s how you do it. Pay attention, class:

1) Find positions that you believe Alito will take as a justice and have some basis in the record. Say it’s executive power: you believe that Alito will exceesivly defer to executive power and Presidential demands.

2) Don’t worry that Alito has said (correctly) that there is a “twilight zone” when thinking about executive power that no one is sure about. True, this isn’t a good “battle cry”, but—

3) Instead, get a bunch of focus groups to find just the right phrase that will resonate with the public (or key groups therein) that expresses their fear of overweening executive power. For the sake of argument, let’s say that that phrase is “imperial presidency” (which I doubt, but that’s why Frank Luntz makes the big bucks, not me)

4) Encapsulate that phrase in a sound bite, say, “we need to stop Alito’s imperial presidency”

5) Get your senators, sympathetic press people, talking heads, bloggers, newspaper letter-writers, everybody to master this phrase;–


6) Say it OVER AND OVER AND OVER AND OVER AND OVER AND OVER AND OVER AGAIN. Everywhere. In every context. As an answer to every question.

And then good, smart, principled conservatives like Eugene Volokh and Steve Bainbridge and Stuart Taylor will rightfully protest, and say that Alito’s never actually said that, and that the situation is really much more complex, and that we all know that there is some kind of inherent executive power (which is true) and that shouldn’t you be ashamed of yourselves for simplifying the issue this way.


Note that this isn’t about outright lying; it’s about using a genuine concern based on reasonable information, and turning it into a clear political slogan. Outright lying often works (see, e.g. Bush’s 2000 attacks on Gore for mendacity, which was itself an outright lie), but this isn’t that strategy. Instead, this is like the Bush 2004 campaign’s attacks on John Kerry for flip-flopping. The fact is that Kerry is not the most principled of politicians, and while you could have written a thoughtful policy piece on his inconsistencies, it’s easier just to say “flip-flopper.”

This is not the most sanguine or edifying view of politics, and it clashes with the most cherished values of the university, which of course favors reasoned discussion. But it’s far more realistic, and it’s less cynical than some other strategies than I can think of (again, see Bush 2000–or most of his other campaigns.)

Bottom line: It is unrealistic to think that the other side will provide your talking points for you. That’s your job.

That is all.

Early Reflections on Miers

The nomination of Miers will obviously generate a lot more information about the candidate than we have now, but from what’s out there so far, it’s typical of too many appointments in this administration generally: an insult to the institution and the public on grounds of the mediocrity of the candidate, and a callous mistreatment of the nominee herself. It’s insulting because it embodies the idea that a candidate of no real distinction is suitable for a high and important office as long as she doesn’t have a disqualifying scandal in her past, and it’s abusive of Ms. Miers because it sets her up for failure in a position whose duties are almost certainly beyond her. What is life really like for Justice Thomas, always a day late and a dollar short of the intellectual life of his workplace? Do the people who sent Michael Brown to do a senior manager’s job feel any guilt at the pratfall they set him up for?

Ms. Miers has no record of ever doing anything important except chairing a commission during a cleanup of a state agency in trouble (not, for example, being the executive director actually doing the cleanup). There are dozens of state lottery and gambling commissions and hundreds of members thereof in the last twenty years; what makes her special? The bar associations she’s headed are just two of hundreds, which again have had thousands of presidents. These positions are in themselves admirable and respectable, but convey no special distinction (at the level of this nomination for this job) whatever.

Otherwise, there’s not a book or an article or a bill or a program or an idea to her credit, just conventional lawyerly service to this and that client, the sort of thing thousands and thousands of partners in top law firms do every day. Except for failing to save Bush from himself and his bad lieutenants, she appears to have made no big difference to anything important, ever. At the same time, the buzz on her style (and it’s not much more than that, yet) is extreme formality and insularity, lack of forest-tree discrimination, and an inability to collaborate. The Supreme Court is a collegial environment, and ability to abstract and see the big picture background against which a given case is a figure would seem to be pretty important.

The quality that rings like a bell through her press notices is personal loyalty to George W. Bush. This is beyond irrelevance; it’s truly bizarre and troubling to offer it as qualification for Supreme Court Justice. Does W expect to be calling her up from time to time to dictate votes? Is she expected to decide cases for twenty years by guessing what that great legal mind W would want? If not, how could it possibly be a point of merit for this job?

Ms. Miers was the first woman to have various positions. This is to her credit, but among all the thousands of “first woman to do X”, not in and of itself a very big selling point. It should probably be discounted by her total lack of direct experience of what being a woman professional is for those who have children or even spouses. Miers may know something about sexual harassment and discrimination, but again, we’re talking about a job of which there are only eight others in the world. A professional woman’s perspective is a selling point for it, but for the most part, Miers’ is no more than second hand or observational.

Probably the most insolent quality of this nomination derives from her recent job experience, where her duties since 2001 have been as an inside, direct, advisor to the president, including a stint managing his access to information. In the current case, the idea that such a resume merits consideration for any high office is beyond satire and beyond ridicule, because this administration has a nearly unblemished record of taking bad advice, ignoring useful information, and making catastrophic choices on a steady and varied stream of international and national policies. Anyone suspected of being in the advisory chain that generated this record would seem to be flatly disqualified from any job involving good judgment or insight, at least on a prima facie basis.

There was a time when it was expected that the Supreme Court was a body of really special and distinguished legal thinkers, whether left- or right-flavored. Roberts was no shoo-in on this ground, but not outside the pale, and may well fulfil the promise of his career to date. Miers is not even in the ball park on any of the evidence we have so far.

Democrats and national security

The name of the game is “capture the flag.”

My recent post on secrecy argued that excessive secrecy is bad for national security, and concluded: “Until the Democrats have candidates who can make that argument with a straight face, they’ll keep losing elections.”

Matt Yglesias comments (I’ve reproduced the full text):

Mark Kleiman presents a compelling argument that American classification policy is very bad, and that there are far, far, far too many official secrets. Then he goes all Pundit’s Fallacy on us: “Until the Democrats have candidates who can make that argument with a straight face, they’ll keep losing elections.” Surely he doesn’t really believe that. The 2004 election wasn’t as close as the 2000 election, but it was pretty close: There are a lot of ways a Democrat might win. And there are certainly lots of ways a Democrat might win that have nothing to do with this secrecy business.

I agree with Matt that the Pundit’s Fallacy (“Every expert knows this is right, and so do the people I have lunch with, so it must be a winning issue politically”) is an occupational hazard and a menace to political navigation. But clearly my original remark was too telegraphic.

I didn’t mean to say what obviously isn’t true: that policy about classified information is something Democratic candidates could profitably campaign on. What I did mean to say, and would maintain is true, is that Democrats need candidates who can believably say that anything is a threat to national security.

We need a candidate who doesn’t look as if he’s uncomfortable wearing an American Flag lapel pin, and who obviously thinks, and more importantly feels, that American military power is, on balance, a good thing, and that more of it is, on balance, better for the country and the world. If that person — call him, for the sake of concreteness, Wesley Clark or Eric Shinseki or Sam Nunn — says “And, as someone who has devoted a lifetime to making this country stronger, I tell you that excessive secrecy is a source of weakness,” that statement will be credible.

Opposition to the Vietnam War, support for rapid cuts in military spending after that war, opposition to Reagan’s arms buildup, and opposition to the pattern of U.S. intervention abroad on behalf of right-wing dictators were all core Democratic positions, and as it happened I agreed with all of them.

But put them all together, and they don’t seem to spell out instinctive patriotism of the dumb flag-and-uniform type. And the people whose votes we need and don’t now get mostly want a President who has just that sort of instinctive patriotism.

Be honest: When you see a car with an American-flag bumper sticker, isn’t your first reaction to think that the person driving it is from Red America, culturally if not geographically? Mine, too. As long as the flag remains a partisan symbol, and not of our party, we start every election behind the 8-ball.

Think of this problem from the other side. The Democrats support lots of policies that are demonstrably contrary to the interests of African-Americans, especially policies that maintain cruddy school systems in big cities and that can’t be changed for fear of offending the teachers’ unions. When Republicans such as GWB try to make that issue, black voters laugh at them: “As if you gave a rat’s ass about our kids.”

The fact that the Republicans are obviously and comfortably the party of those who think that black folks have gotten too big for their britches makes them simply not credible when they argue that some particular policy they oppose for other reasons is actually bad for African-Americans. The fact that they often play the race card when it’s not there to be played — as on Social Security — and never, never, ever support something they would otherwise dislike simply because it’s actually good for blacks makes it obvious that their invocations of the needs of African-Americans are insincere and therefore to be ignored. So does the fact that they’re so indifferent to the real issues facing black America that they don’t bother to learn anything about the details, and therefore often wind up sounding disconnected from reality when discussing race.

That’s how Democrats look on national security to lots of people, including the vast bulk of the officer corps. John Kerry, war hero, lost the soldier vote to George W. Bush, chickenhawk and liegeman of the House of Saud, and managed to do so even though the enlisted ranks are disproportionately black and consist entirely of people whose economic interests the Democrats serve and the Republicans trample on.

Until that changes, we’ll win some elections anyway, on domestic issues or because the other side self-destructs. But we’ll lose more than our share.


While I was complaining, the folks at Democracy Arsenal were trying to do something about it. Good for them. (Hat tip: Kevin Drum, who has, as usual, good thoughts of his own to add.)


Shhhhhhh! It’s a secret!

Excessive secrecy threatens national security.

Abuse of the classification system to control public debate is pervasive, and probably getting worse. Something needs to be done about it.

Only a subset of classified material would really be of use to a potential enemy. Additional material is properly classified for “sources and methods” reasons: the information itself isn’t sensitive, but revealing that we know it might reveal where the bug is or which attache is selling us secrets.

But those two categories together do not exhaust what can properly be classified according to the statute. Any information the release of which would tend to impede the foreign policy of the United States is properly classifiable. If GWB and Condi have decided, for example, to suck up to Pakistanis, then sucking up to the Pakistanis is the foreign policy of the United States, and any information that might embarrass the Pakistani government can lawfully be stamped “Top Secret.”

When I was young and irresponsible, I worked for the Justice Department, analyzing drug policy. In that capacity, I was put through the full security mumbo-jumbo and received a Top Secret clearance and, on top of that, clearances for various very highly taboo Codeword categories. (The initiation ceremony involves being dipped in the blood of … well, I could tell ya, but then I’d have to kill ya.)

Having been cleared, what did I learn that it would then have been a felony for me to reveal? Nothing that would have helped the Russkis or the narco-bad-guys. But I did learn the names of assorted corrupt high-level officials in various of the Carribean banking havens Jeff MacNelly once lampooned as “Rinky-Dink and Tabasco.” No elaborate spying had been required to learn the names; apparently it was routine cafe gossip in the countries involved. So why, I asked, is this material classified? Not that I had any desire to reveal it, but I was curious.

The senior security guy in the Criminal Division set me straight: Yes, everyone knew that the Rinky-Dink-and-Tabascanese Finance Minister, or Central Bank president, or whoever it was, was crookeder than a dog’s hind leg. He knew, we knew, the Prime Minister knew, the Prime Minister knew we knew, we knew he knew we knew, ad infinitum. Maybe the Rinky-Dink-and-Tabascanese voters didn’t know; that was their lookout.

But it was our policy to make nice to Rinky-Dink and Tabasco (honest, I forget which contrylet we were talking about). If it were revealed publicly that the US Government had knowledge that Mr. So-and-so was on the take, that would embarrass the Rinky-Dink-and-Tabascanese government, thus impeding U.S. foreign policy. Ergo, properly classified.

There’s a story Khruschev used to tell, back when he was General Secretary of the CP-USSR (i.e., dictator). In the story, an Old Bolshevik goes crazy, and runs through the halls of the Kremlin shouting “Khruschev is a fool! Khruschev is a fool!” Naturally, he’s promptly arrested, charged, tried, convicted and sentenced, to twenty-three years’ corrective labor: three years for insulting the Party Secretary, and twenty for revealing a state secret.

An enormous amount of classified information consists of state secrets of the Khruschev-is-a-fool variety. And the incumbent adminisration is completely free to decide that revealing any given bit of information would be consistent with our foreign policy, and reveal it. As Henry Kissinger used to say, “I never leak. I de-classify.” This is a huge problem, and an excellent reason not to have anything resembling an Official Secrets Act.

Excessive secrecy is a profound threat to national security, because secrecy helps cover up malfeasance, incompetence, and bureaucratic fumbling, e.g. with respect to the risk of terrorism at nuclear power plants.

Until the Democrats have candidates who can make that argument with a straight face, they’ll keep losing elections.

Update: Matt Yglesias find the Pundit’s Fallacy in the last sentence above. I attempt to clarify: it’s not that we need candidates who actually criticize secrecy policy on national security grounds; it’s that we need candidates who could criticize secrecy policy — or any other policy — on national-security grounds without looking silly or insincere in doing so.


Selling our lives cheap

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Some Inconclusive Thoughts about the Death Penalty

As an abstract question in moral philosophy, I think I’m for capital punishment, on two grounds.

First, if we punish petty theft with a little time behind bars and aggravated assault with somewhat more time behind bars, arguably there are some crimes – and I’m not at all sure that homicide is alone – that ought to be punished in some way not reducible to the less-time/more-time dimension, precisely because we want to mark them out as capital – i.e., chief – offenses.

Second, the real suffering created by a relatively humane execution may be much less, integrating over time, than the suffering created by a long prison term, both for the offender and for his intimates, and yet the fear of death appears to be such that most offenders (not all) prefer any non-capital sentence to death. As John Stuart Mill pointed out, the ideal punishment is the one that combines the maximum of terror with the minimum of actual suffering. [That argument would be more persuasive, of course, if the gap between sentence and execution were shorter; even if killing someone is less cruel than locking him in a cage for the rest of his life, forcing him to spend a decade waiting to be killed may not be. The same applies to the suffering of his intimates.]

Moreover, I’m not at all comfortable with life in prison without parole, or even with very long sentences short of that, because I don’t think that the 60-year-old we’re keeping in prison is, in the relevant sense, ‘the same person’ as the 20-year-old who committed that murder forty years ago.

And the risk of executing someone innocent is a strong argument against capital punishment only if death is in fact a much worse penalty than long imprisonment. I’d love to see procedural changes, starting out with much stronger charges to juries about the meaning of ‘proof beyond reasonable doubt,’ to make it less likely that innocent people get convicted, because I’m convinced that the we now have literally tens of thousands of innocents behind bars. But the abolition of the death penalty wouldn’t change that concern at all.

(There is, apparently, evidence to support the common-sense proposition that death-qualified juries — those from which jurors unwilling to convict in capital cases have been excluded — are more conviction-prone than ordinary juries, but that problem could be overcome by having a non-death-qualified jury consider guilt, without being told whether the case is a capital one or not, and a death-qualified jury consider the penalty.)

It’s also more than possible, though not proven, that the threat of execution changes the behavior of some offenders in the right direction. Putting the econometric evidence aside, as I’m inclined to do on topics this complex, there are accounts of bank robbery gangs in the 1930s who went into banks with unloaded weapons precisely to avoid the risk that someone would be killed and the robbers therefore subject to execution. I believe it is also the case that kidnappers-for-ransom of that era were reluctant to kill their victims – otherwise presumably a risk-reducing step – for the same reason.

Of course the opposite effect is also possible: perhaps some people commit crimes precisely so as to be executed, or find that the commission of a capital offense adds to the thrill. The empirical question — or quasi-empirical, if as a practical matter we can’t convincingly disentangle all the evidence — is whether the net effect is positive or negative. (And of course the answer to that might not be the same in all times and places.)

In my moral calculus, saving the lives of victims outweighs saving the lives of aggressors, at least if the numbers are even, and possibly even if they aren’t. The distinction between aggressors and victims seems to me to trump the action/omission argument that it’s not in general justified to cause a death directly in order to prevent a larger number of deaths. The cases used to make that argument tend to involve innocent parties on both sides, which is not the case here.

I recall an essay, though I’ve forgotten the title and author [Can any reader supply?] which makes the general moral case for the practice of criminal punishment on the following argument: If a situation arises in which it necessary that either A or B be injured, and if that situation arises due to the action of A, then it is A who should suffer. Insofar as that argument is valid, it greatly weakens the force of the argument from the act/omission distinction.

All that said, I have no trouble understanding, and sympathizing with, the position of those who regard capital punishment as the last vestige of human sacrifice and are aggrieved at being made complicit in it as taxpayers and voters.

(If I were a Christian, I think I would regard the account of the woman taken in adultery [John 8 1-11] as reflecting a clear judgment against the practice.)

When pro- and anti-death penalty demonstrators shout at one another outside a prison where someone is being killed, I know which group I’d rather go out to a meal with afterwards.

What I’m pretty sure of is that, in purely practical terms, the death penalty doesn’t deserve the attention it gets from either side of the debate. With the annual execution count below 100 and the annual homicide count near 20,000, it seems to me perverse, in a world of limited resources, to worry about abolishing executions rather than preventing murders. But even if it were the case that the death penalty prevented homicide, as a practical matter we could never carry it out frequently enough to make a measurable difference.

From the perspective of a generation ago, with rising crime rates and a scarcity of prison beds, it was not entirely irrational for voters – many of them angry about crime, prepared to be cruel to criminals in order to stop it, and worried that elected and appointed officials might be unduly inclined toward mercy – to use support for the death penalty as a simple test for a candidate’s willingness to be tough. But surely, with 2 million people behind bars, we’ve gotten tough enough.

I am, therefore, indifferent on the question of a moratorium on executions. But as someone professionally concerned with crime control, I’m a strong supporter of a moratorium on debating the subject; it’s a distraction from the work we really need to do.