Thinking About Torture

Damon Linker at The New Republic has an insightful piece entitled Thinking About Torture. He gives expression to many of the thoughts that I have been struggling with around this topic - the fundamental belief that torture is wrong, but burdened with a nagging wonder about the extreme case of existential threat. Over the past seven years, the debate has been overly simplistic and polemic on both sides.

I've pondered for years what to say about the Bush administration's use of torture in the years after 9/11. So far I've remained quiet about the issue because I'm so uneasy about it -- not just about what the United States has done, but also about the reactions of nearly everyone who has commented on it.

Linker looks for guidance in this issue from Leo Strauss, author of Natural Rights and History, as the thinker who "is strongest in discussing what he called the 'permanent problems' of politics."

Under normal circumstances, the two parts of political morality cohere enough that the tensions between them rarely show themselves. But in extreme situations -- situations in which (in Strauss's words) "the very existence or independence of a society is at stake" -- there may be "conflicts between what the self-preservation of society requires and the requirements of commutative and distributive justice. In such situations, and only in such situations, it can justly be said that the public safety is the highest law."

I think, however, that the Bush Administration's downfall, and the inherent danger their course of action posed, was in its secrecy. "Executive privilege" and making decisions behind closed doors for reasons of "national security" are the watch words and cloak of every tyrant and imperial power in world history. Liberty and freedom flourish in the fresh air of the open daylight, so if a policy of torture is required for the self-preservation of society, then that is a discussion that the Bush Administration should have taken to Congress so that an open debate could have ensued. The few are not competent to decide for society if such extreme measures are required. The society in whose name the Government is asking to be able to commit such acts should have the right and obligation to authorize their use.

Everyone could have taken part in the conversation and we could have avoided all of the the Monday-morning quarterbacking we see going on now on "a bright, sunny, safe day in April 2009" -- as Director of National Intelligence, Dennis Blair, has put it. After the proper hearings and investigations, Congress could have made an informed decision to amend the law. The CIA could have then remained in the bounds of the law as they did what they needed to do, and field agents would now not be worrying if politics will drive their prosecution, after previous OLC assurances that they were acting legally. In addition, if walking into such dark territory is required, leaders are less apt to let the power go to their heads if they are being watched by society and Congress.

Bush Administration defenders will undoubtedly say that we would have had no time for a debate in the aftermath of 9/11 or that such a discussion would have tipped our hand to our enemies. But according to reports, the Government did not begin exploring "harsh interrogations techniques" until well into 2002. That would have given us several weeks (or months) to have this conversation. And even is the Administration needed to have more latitude more quickly, constitutional principles do not change just because they become inconvenient. Besides, Congress has shown it can work with speed in cases of national emergency. FDR received a declaration of war against Japan on the same day as the attack on Pearl Harbor. After 9/11, Congress passed the Authorization for Use of Force Resolution within three days. And if the United States had published such a policy change with the full support of the U.S. Congress (the representatives of the American people), then it would have undoubtedly worked to our advantage to strike fear in the hearts of al-Qaeda.

In the end, such an approach would have allowed America to head into the ugly days ahead with our eyes wide open, and no one would have been able to claim innocence or ignorance. It is all too easy to cry for the hides of those who kept us safe when we can claim blissful ignorance, even if that ignorance was willful at the time.

The Great Debate: liberty or death?

I have been listening to a course from The Teaching Company on the debate over the proposed Constitution between the Federalists and the Anti-Federalists. Professsor Thomas L. Pangle (University of Texas at Austin) teaches the course, The Great Debate: Advocates and Opponents of the American Constitution , which does an outstanding job of framing the debate between the two sides in its historical context and presenting the give-and-take discussion. The Federalist Papers are often presented as a self-contained treatise on the Constitution, but they were, in reality, part of a broader conversation, reacting to accusations and questions from the Anti-Federalists and lodging accusations and questions on behalf of Hamilton, Madison, and Jay (their authors).

The Anti-Federalists also presented some salient concerns in their opposition to the proposed Constitution. Among them:

• the proposed Constitution would lead to the establishment of a military industrial complex (not their words, of course), which would lead to America drawing unto itself the trappings of empire and shedding her commitment to republican virtue;


• juries would lose their right to interpret the law under the proposed Constitution and the federal judiciary would become an unaccountable aristocracy; and


• the states would eventually become mere administrative subdivisions of the federal government because states do not have an effective constitutional check against the federal government (Madison pointed to the fact that the states appointed senators under the design of the proposed Constitution, but this effective check was removed with the passage of the Seventeenth Amendment).

The Federalists consistently seek to recast Anti-Federalist concerns by focusing on the need for a strong central government to protect the national security of the United States. Whereas the Anti-Federalists were concerned to protect the classical republican freedom of the United States, which called for small communities governed by like-minded, virtuous citizens, the Federalists called for society to include a broader, more diverse territory whose sheer size would draw in competing interests (factions, to use Madison's term) to protect republican freedom at home and from attack from abroad.

I will spend a few upcoming blog posts looking at these debates in more detail, but what intrigues me from a birds'-eye view is the same basic question that we still deal with today, most recently in the days since 9/11. The Bush Administration thought it was necessary to engage in torture to protect America from further terrorist attacks after 9/11. While there is some circumstantial evidence that this policy protected the U.S. from further attacks, the brutality and dehumanizing consequences of these "enhanced interrogation techniques" are highlighted by Mark Danner in his piece US Torture: Voices from the Black Sites. Now the Obama Administration has prohibited these techniques from being used by U.S. governmental agencies because, as the new president has said, they violate America's core principles of liberty and commitment to human rights. But the President has said he'll do what is necessary to protect the United States, so one wonders what that would mean if another terrorist attack should befall the U.S.

So the question becomes - can a love and commitment of freedom and liberty coexist with institutions required to defend and make war? In the spirit of the Governance Imperative, these are two competing principles that must be balanced, but can the balance truly be maintained without detriment to either principle? Peace and security can be easily maintained through the use of excessive force, but freedom and liberty will suffer and be snuffed out. Witness Nazi Germany, Soviet Russia, Iran and North Korea. Liberty and openness can flourish, but society is then left vulnerable to attack and domination from the outside. Witness the classical Greek city-states, the Roman Republic, and the medieval Italian cities. In the latter cases, the republics were only able to save themselves by giving up liberty for ever more powerful militaries and dictators. Patrick Henry insisted on being given liberty or death, but most people will take security and peace over anything.

Whatever the prescient warnings of the Anti-Federalists, the Constitution has enabled the United States to strike an uneasy, if ever-correcting, balance between liberty and security. The ability of Americans to maintain this balance will be directly dependent on our continued fidelity to republican principles and the constitutional order.

Bonhoeffer on Bush

Dietrich Bonhoeffer, in his writings published as "Letters and Papers From Prison", provides mankind with a strong statement on morality and the relationship between a citizen and the State. While Germany was under Hitler's grip, there were well educated men who understood that their duty was to follow orders, unlike Bonhoeffer who understood that to allow an evil to be committed was morally the same as to commit the evil yourself. We can't blame this divide on education or its lack. Otto Thorbeck, the judge over Bonhoeffer's trial, had the same classical education as Bonhoeffer; studying Antigone, Iliad, The Oddyssy, and The Bible. Works which provide guidance as to the meaning of good vs evil, justice, wisdom, and duty. If you don't believe in absolute good or evil, you could easily make the case that it is permissible to act in a normally unjust manner when the circumstances permit, that enacting the injustice on the orders of others does not sully ones own soul, or in other words sometimes it's ok to kill.

Bonhoeffer suffered the punishment of the State rather than acquiesce to the idea that the State is the arbiter of what is Absolutely Good or Absolutely Evil. If the State says that a prisoner is a traitor and needs to be sentenced to death, it isn't the individual's place to disagree. That is what Thorbeck believed, he was just doing his duty. Bonhoeffer didn't have to be imprisoned but faced certain persecution with the conviction that what Germany was doing was wrong and to not speak or act out would be equally wrong of him, a sin of omission.

So, what questions does this pose?

- Whose place is it to determine what is good or evil?
- Does a State have a soul? a conscience?
- If a State is soulless, upon whose soul falls the burden of evil acts done in the State name?
- If an action is evil when committed by an individual, can a State, on its own authority, declare that act to be just and legal when done in the State's name?
- When is it the duty of a Citizen to disobey the State?
- How should we feel about a society that allows the State to commit evil acts?

I expect to follow this piece with others where the lessons of various books that have made history can teach us about life in the modern age. Next would be Homer's Iliad.

Truth and Power

Politicians are afraid of the truth. Truth is an absolute, something which does not sway in the wind, something that can not be possessed or subverted to private purpose. Politicians deal in perception which can be manipulated, twisted, changed; used as a shield, e.g. "wrapping themselves in the flag" or as a weapon, e.g. "Saddam has WMDs" or McCarthyisms "Better dead than Red".

The most a politician can do with Truth is to reveal or conceal it which includes half-truths and such. Truth becomes like the rock upon which a lighthouse is built. We could tell a story about politicians and Truth.

A long time ago on a long forgotten coastline, there was a dangerous outcropping of rock near a small fishing village. Many ships, loaded with their catch bound for the sailors families, had been sunk coming back from their time at sea. The village can ill-afford building a lighthouse to warn sailors of the dangerous rocks but reject the notion of risking more ships on a known danger. And so the lighthouse is built. The people are proud of their accomplishment, they've made their world a better, safer place.

Nature, having setup the rocks as a deadly game of chance between incoming ships and the rocks, sees the completed lighthouse and feels thwarted by the puny men; cheated of the spoils of it's "game". Angry now, Nature decides to strike back against the hubris of men, sending rain, wind, and waves to batter the lighthouse, to blind the revealing light and tear down the tower that deigns to signal danger to the unwary. The lighthouse, being a product of man, cannot withstand the relentless attack of the elements and falls, its light no longer shining, its building no longer standing guard.

The rocks remain, ships continue to sink, the widows continue to weep, the people continue to lament their losses. Nature continues to enjoy the offerings of the village, safe in the knowledge that its capricious nature is again safe from the light of the truth.

To those who seek power, that which does not empower them further is an obstacle to further power whether by being a hindrance directly or by being a distraction indirectly; thus Truth which does not support is concealed to guard against being used as a weapon against the power-seeker. Perception is the currency of power and a people distracted by a tangential Truth is a threat to those to covet the power of crowds willing to believe and follow. The lighthouse is not the Truth but only the marker of it. Nature may be able to destroy the marker but the rocks, like the Truth, remain.

Dick Cheney is a Statist

What does it mean to call someone a Statist? A Statist is someone who believes that the individual citizen is a component of a State where the interests of the State override the interest of the individual. This directly contradicts Lincoln's legacy, "government of the people, by the people, for the people" which recognizes that government is a servant of the people, not the other way around.

Here are some questions to help determine whether someone is a Statist.

Which is more important, the liberty of the individual or the liberty of the State?
Let's define liberty as the freedom to act
Does the liberty of the citizen contribute to the liberty of the State?
Does the liberty of the State contribute to the liberty of the citizen?
Would the increase in the liberty of the State ever cause or involve the decreased liberty of the citizen?
Would the increase in the liberty of the citizen ever cause or involve the decreased liberty of the State?

Is a State responsibile for the liberty of its citizens?
Is a citizen (or citizens) responsible for the liberty of the State?

Epilogue - how do we feel about a Vice President who feels that it is ok for a State to torture it's own citizens "in the name of war" but when it comes to using the power of government for the direct benefit of citizens his tune becomes,

"I worry a lot," he told King, "that they're using the current set of economic difficulties to try to justify a massive expansion in the government, and much more authority for the government over the private sector. I don't think that's good. I don't think that's going to solve the problem."

Maybe the best way to explain it is that the Bush administration didn't lack in ethics, because they redefined that word to their own liking, but they lacked a sense of shame. Why there hasn't been an expression of shame over the Yoo documents is almost totally beyond me. All I can comprehend is their total faith in their own decisions and the inability to look backwards and reflect. "We did what had to be done" is a self-comforting way of avoiding admitting mistakes but it should not hold us back from expressing our sense of shame over their actions.

Here is a question with which to leave you.

Would you rather,
a) live in a country that allows the torture, secret surveilance, indefinite detention, and extra-judicial arrests but have a secure feeling that you aren't going to be attacked tomorrow;
OR
b) live in a country that does not allow torture, requires warrants for wiretaps and arrests, guarantees the accused a day in court to show why they are innocent, in return for the mature and rational realization that no government can keep you safe 100% of the time.

To Appoint or Not To Appoint? That is the question.

Gubernatorial appointments to the Senate have not gone very smoothly as of late. Anyone who has paid a modicum amount of attention to the news over the past four months is well versed in the sad displays surrounding the appointment of Rolland Burris to the Senate by then-Illinois Governor Rod Blagojevich and the short-lived bid of Caroline Kennedy to take Hillary Clinton's New York Senate seat. These pathetic spectacles would be comical if the issue were not so serious. They surely do not bring dignity or legitimacy to the United States Senate!

To correct a process that is so obviously broken, California Senator Russ Feingold has introduced a proposed constitutional amendment that would mandate special elections to fill open Senate seats. This would bring the filling of Senate vacancies into line with the process ordained by the original Constitution for the filling of House vacancies and remove any doubt or question around senatorial successions. Where the people vote in open, free and fair elections, there is no question regarding who their legitimate representatives are.

If you haven't noticed by now, one of my hobbies is to consider the pros and cons of proposed amendments. Since the Senate and House Judiciary subcommittees will hold a joint hearing on this proposed amendment today, now seems as good a time as any to evaluate this amendment.

Feingold's proposed constitutional amendment reads as follows:

IN THE SENATE OF THE UNITED STATES

January 29, 2009

Mr. FEINGOLD (for himself, Mr. BEGICH, and Mr. MCCAIN) introduced the following joint resolution; which was read twice and referred to the Committee on the Judiciary

JOINT RESOLUTION

Proposing an amendment to the Constitution of the United States relative to the election of Senators.

Resolved by the Senate and House of Representatives of the United States of America in Congress assembled (two-thirds of each House concurring therein), That the following article is proposed as an amendment to the Constitution of the United States, which shall be valid to all intents and purposes as part of the Constitution when ratified by the legislatures of three-fourths of the several States within seven years after the date of its submission by the Congress:

`Article --

`Section 1. No person shall be a Senator from a State unless such person has been elected by the people thereof. When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies.

`Section 2. This amendment shall not be so construed as to affect the election or term of any Senator chosen before it becomes valid as a part of the Constitution.'.

I have stated a preference for repealing the Seventeenth Amendment and going back to the original constitutional design where State Legislatures filled their State's two Senate seats. My support for a constitutional change to mandate special elections to fill open Senate seats might seem contradictory to this stated preference, but I also realize we live in a world in which the Seventeenth Amendment will not be repealed any time soon. Elections are the ultimate process that governs our country, and of all of our governing institutions, elections are, next to the Constitution itself, the most foundational and legitimate.

In addition, appointment by one man (the Governor) as opposed to appointment by a State's Legislature is a difference of kind and hardly comparable. The original constitutional senatorial selection mechanism was part of a broader scheme of federalism that the Founders put in place (the other components of federalism being the electoral college, state militias, the Second Amendment, juries, courts, and the constitutional convention process). When all of these parts worked together, they served to maintain a federal / state balance. Many of these components of the Founders' federalism have either vanished or fundamentally changed however, and senatorial appointments by Governors do nothing to move us towards a federalism re-balance.

The most prolific objection I have heard against Feingold's proposed amendment is the terrorism question - "What if terrorism or some other calamity killed every member of Congress? At least Senators could currently be appointed, but Representatives have to be elected. Mandating senatorial special elections would make it impossible to quickly reconstitute the Senate, just as it is currently impossible to reconstitute the House."

Honestly, if this is the best the opposition has, then this amendment should easily pass. In over 200 years of history, a desperate Revolutionary War that the Congress led, a War with the British that saw Washington D.C. burned to the ground, a devastating Civil War that tore the country apart, two World Wars, multiple economic crises, a Cold War fraught with the very real possibility of nuclear annihilation, and the terrorist attacks of 9/11/2001, are we *so* afraid of some theoretical event that has very little real chance of succeeding in the first place? Do we design our normative, fundamental constitutional principles around the most extreme of statistical possibilities?

Even in the unlikely event that such an attack did take place *and* was successful in completely destroying the Congress, special elections could be held within two to three months and voila la! You suddenly have a reconstituted Congress that is untainted by questions of legitimacy and free of suspicion over who it speaks for - special interests or the People. Even in the most dire of circumstances that threatened our nation's survival, President Lincoln prosecuted the War against the Confederacy for months before Congress convened in the summer of 1861. Elections are *not* a luxury that we suddenly throw out the window when we think they are no longer convenient. They help define who we are as a people and how we come together in consensus, particularly in tough times. If we want efficiency to inform our fundamental design of governance, might I suggest Machiavelli's The Prince?

So Feingold's constitutional amendment is a much needed corrective to a major defect in the Seventeenth Amendment. If we are going to keep direct elections of Senators as our preferred method of selection, we are better off applying that method in all cases, especially where emergencies are concerned.

The Moral Instinct

The Moral Instinct is an intriguing article in The Times Magazine from back in January. The author argues that studying the "moral sense" of human beings can help us "see through the illusions that evolution and culture have saddled us with and to focus on goals we can share and defend." While there is much for me to quibble with in this article, it does bring out some helpful perspectives that would advance societal debates and relations in this country, along with how Americans see other cultures around the world.

For all the different moral concerns and perspectives found around the world, the article argues there are five themes that are common across all cultures: harm, fairness, community (or group loyalty), authority and purity. The differences in morality can be reduced to the emphasis placed on each of these themes by each culture.

The five moral spheres are universal, a legacy of evolution. But how they are ranked in importance, and which is brought in to moralize which area of social life — sex, government, commerce, religion, diet and so on — depends on the culture. Many of the flabbergasting practices in faraway places become more intelligible when you recognize that the same moralizing impulse that Western elites channel toward violations of harm and fairness (our moral obsessions) is channeled elsewhere to violations in the other spheres. Think of the Japanese fear of nonconformity (community), the holy ablutions and dietary restrictions of Hindus and Orthodox Jews (purity), the outrage at insulting the Prophet among Muslims (authority). In the West, we believe that in business and government, fairness should trump community and try to root out nepotism and cronyism. In other parts of the world this is incomprehensible — what heartless creep would favor a perfect stranger over his own brother?

Of course, harm and fairness are the moral themes that dominate the United States: both historically and in the present day. While we don't completely ignore the other three (indeed, community, authority, and purity are much more important themes among more conservative-leaning and religious Americans), these two themes inform our collective sense of morality to the point that they guide our sense of Government's role in our lives, i.e., that the Government should enforce laws equally (fairness) and defend us from attack (harm). These are also the competing themes that tear us apart in the abortion debate: protecting innocent life from harm versus treating women fairly. If we don't realize this, it is all too easy to see "the Opposition" as amoral and unprincipled.

We wrote the Governance Imperative thesis three years ago, and our moral categorization (what is right vs. what is fair) differs from that of this article. However, the important distinction is present in both categorizations. There are competing moral themes that we must consider as we approach any major societal question, and the Founders were well aware of these competing moral themes when they wrote the Constitution.

Who Guards the Guards?

The 'Yoo Debacle' provides a clear example for why transparency is important in the Executive branch. I would think that 'secret' laws would be unconstitutional, why then would we allow a 'secret' legal basis for the execution of our laws? The Bush administration's refusal to provide Congress with the legal basis for the Executive branch's behavior is tantamount to saying "It's legal because we say so!"

Bush Administration's legal basis for torture, warrantless searches, etc.

Here is a good excerpt:

=== begin excerpt ===

As Bradbury makes clear, the legal analysis in these memos, time and again, was just plain bad legal argument. Some of the arguments veer into the bizarre. Consider this concluding passage from a Yoo-Delahunty memo arguing that the president can order warrantless searches (case citations deleted):

The courts have observed that even the use of deadly force is reasonable under the Fourth Amendment if used in self-defense or to protect others. Here, for Fourth Amendment purposes, the right to self-defense is not that of an individual, but that of the nation and of its citizens. If the government’s heightened interest in self defense justifies the use of deadly force, then it would certainly also justify warrantless searches.

Huh? The reasoning goes like this:

Individuals can use deadly force to defend against a deadly attack;

The government can use deadly force to defend the nation against an attack;

Therefore: the government can engage in warrantless searches.

=== end excerpt ===

Throwing the First Stone

This article about the influence of the physical world and the structure of moral perception [www.sciam.com] was very interesting.

Is this a case of "Thou doth protest too much"? What can we take from this study and apply to our search for better government?

What possibility is there that those who relish the role of morality police have secrets of their own which make them judge others more harshly?

Would you notice a difference in the sermon at your church if the pastor ritually cleansed him or herself before speaking?

The Truth is so Bright I Gotta Wear Shades

Truth and Politics. Normally the truth is black or white. I'm beginning to wonder if politics is the art of not stating the obvious. The current economic crisis provides for an easy example. Economists are saying that nationalizing the banks is a valid remedy for a failing banking system. The Secretary of the Treasury is avoiding mentioning the term even off the record. If asked point blank, it is a good bet that he would not admit that it is a potential action worth exploring. Here is where the political truth comes in. If you asked him why he won't discuss it, he will actively avoid admitting that the political cost is too high. Not giving the opposition a chance to score points then becomes the elephant in the room.

Everyone knows why we don't talk about the solution openly, making it ever so difficult to face our problems, hog-tying ourselves for the sake of political strategy.

The Illusion of Control and the Hidden Costs Thereof

Fort Worth Star-Telegram, Tuesday, March 3, 2009; Northeast section, page 6B (The title of this post links to the full article):

"Bill would move sex ed away from abstinence-only" - Kelley Shannon (AP)
Austin - Texas's sex education curriculum, which now teaches abstinence as the only form of birth control, would include more medical information about contraception and disease prevention under a bill proposed Monday by Democratic lawmakers.

"The status quo is not working," Sen. Rodney Ellis, D-Houston, said. "Only through honest information will teens have the tools they need for responsible decision making and disease prevention."

A bill proposed by Ellis and Rep. Joaquin Castro, D-San Antonio, would give teenagers access to "complete, medically accurate and age-appropriate" sexual health information at school with the aim of reducing teen pregnancy and infections, the legislators said.

The current abstinence-only sex education system has been in place since the mid-1990s when George W. Bush was governor. Republican Gov. Rick Perry will review the new proposal but "is comfortable with current law and supports abstinence programs," his spokeswoman, Allison Castle, said.

The conservative Texas Eagle Forum views the Democrats' proposal as trying to cover up immoral behavior by men and doing the bidding of abortion providers, Cathie Adams, president of the organization, said.

"I see this as a very anti-woman, anti-girl attempt," Adams said.

"It's putting immorality off on children."

Commentary

Was Mrs. Adams the best spokesperson for the opposing viewpoint? Does she really think that telling teenagers how diseases spread is promoting immorality? It's one thing to argue that sex-education condones sex or should be left to parents but the reality is I don't want my daughter to make life-altering decisions based on ignorance or naivety. Think of the stakes! Do I want to risk my daughters health on the assumption that she'll always obey her parents? Or do I educate her on how easy it is to get a incurable or even life-threatening disease? Limiting the discussion to "As long as you do as I say, everything will be fine" works only as long as your child doesn't contemplate disobedience. Even if they abstain until they get married, what about their partner? Whatever control you may have over your children's decisions about having sex, you have absolutely zero control over their potential partners.

Is the Star-Telegram just baiting us with Mrs. Adams? I'm having a hard time understanding how sex education is limited to being anti-girl? Why not anti-boy? Does she suggest that the way to protect girls is by keeping them ignorant? Does it mean that it's always the girl's fault? Do boys have no responsibility when it comes to sex? Is it so hard to remember just how easily hormones influence teenagers?

This whole discussion reminds me of the driver who refuses to yield to the large truck who just ran a stop sign. Yes you have the right of way, yes, the other driver should have stopped, yes the law is on your side, yes the other driver is at fault, yes, yes, yes, you are right; but you're also dead.

Do you want to be "Dead Right" with your childrens health?

Irrational Rationales

It's always been frustrating to me to hear supporters of a U.S. Administration dismiss criticism with nothing more than a perfunctory evaluation. I've become convinced that it is very easy for a leader's supporters to consider counter-arguments as somehow attacks on the President himself and therefore a sign of disloyalty. Paul Graham discusses how identity influences a debate and I'm inclined to agree with him.

What the fan-boys, which I'm wondering whether may be an appropriate term for the most extreme devotees, of an administration should understand is there are plenty of people who need to see the administration debate an issue; when they come out with a position and defend it as if it was perfect those people feel like they are being dictated too, cut off from the idea evaluation process. Do they expect the public to praise the announced policy as in, "Yea! We don't have to think anymore, the President will save us!"? There is something to be said for public debate, the collaboration towards a better idea.

"A well-regulated Militia, being necessary to the security of a free State..."

"A well-regulated Militia, being necessary to the security of a free State..."

The Second Amendment to the Constitution of the United States guarantees the "right of the people to keep and bear arms," but only after it couches the right in (to modern ears) an obscure prologue that would seem to lay out the context and purpose of the right. For a hundred years or more, constitutional scholars and courts have argued back and forth over whether the Second Amendment secures an individual right to keep and bear arms, or whether this right is a collective right that secures the prerogative of the State to establish a Militia not controlled by the federal govenment. In his book America's Constitution, Akhil Reed Amir analyzes this debate and concludes that both sides miss the point of the Founders' inclusion of the right to bear arms in the Bill of Rights.

Amir writes:

Beneath the words [of the Second Amendment] lay a profound skepticism about a permanent, hierarchical standing army that might not truly look like America. Such an army might come to embody a dangerous culture within a culture, a proto-military-industrial complex threatening republican equality and civilian supremacy. The amendment's root idea was not so much guns per se, or hunting, nor target shooting. Rather the core idea concerned the necessary link between democracy and the military: We, the People, must rule and must assure ourselves that our military will do our bidding rather than its own. According to the amendment, the best way to achieve this goal would be via a military that would represent and embody us -- the people, the voters, the democratic rulers of a "free State." Rather than placing full confidence in a standing army filled with aliens, convicts, vagrants, and mercenaries -- men who would not truly represent the electorate and who might well pursue their own agenda -- a sound republic should rely on its own armed citizens, a "Militia" of "the people." Thus, no Congress should be allowed to use its Article I, section 8 authority over the militia as a pretextual means of dissolving America's general military structure -- this was the core meaning of the operative "shall not be infringed" command. (p. 323)

Amir goes on to refer to this understaning of the Second Amendment as the republican reading, distinct from the two modern readings of states'-rights and individual-rights.

States' rights anachronistically read the "Militia" to mean the government (the paid professional officialdom) rather than the people (the ordinary citizens). Equally anachronistically, individual rights read "the people" to mean atomized private persons, each hunting in it's own private Idaho, rather than the citizenry acting collectively. But when the original Constitution spoke of "the people" rather than "persons," the collective connotation was primary. (p. 324)

The principle underlying the Second Amendment was the lynchpen to guaranteeing a free Republic against tyranny and run-away Armies. For the Founders, the militia were the people and the people were the militia. The idea was the same one that instituted and pushed juries as important safeguards to liberty: the people, through non-permanent, non-beauracratic institutions, would counter the power-consolidating tendancies of the standing organizations of government and therefore act as a check and balance. Just as the House and Senate would check one another in the Congress (legislative branch), juries would check the standing courts and judges (judicial branch), and the militia would check the standing federal armies (executive branch). Each federal branch had bicameralism built into it. "Founding-era militias were closely akin to Founding-era constitutional conventions, electorates, and jurors. In each context, state law helped define precise boundaries of 'the people,' sepcifying when and how the people could properly act. Yet these webs of state law did not thereby transform any of these entities into an ordinary government agency. Rather, in each case, the law enabled 'the people' to act outside ordinary governmental channels and theteby check the professional officialdom." (pp. 324-325)

Last year in a post analyzing constitutional remedies to prevent run-away presidential war powers, I said I was not prepared to suggest ways to secure the country against presidents who would utilize the military domestically in unconstitutional, dictatorial or totalitarian ways. The militia was the Founders' answer to this threat, and for the first one hundred years of the Republic, the militias functioned as the Founders expected. So what happened to the militias? In two words, the Civil War.

 

Amir explains:

 

[T]he Civil War and Reconstruction generated a powerful constitutional counternarrative to the (romanticized) Revolutionary War vision at the heart of the Founders' Second Amendment. The very birth-logic of the Reconstruction Amendments -- the process by which they came to be proposed and ratified -- depended onthe good offices (and good officers) of the Union Army. As constitutional events of the highest import, these amendments necessarily valorized the central army and called into question the anti-army ideology driving the Founders' Second Amendment. But even as Reconstruction Republicans buried their fathers' Second Amendment, they helped unearth a new understanding of its intriguing language. Reading the amendment's words in the light of their own lived experience, they deemphasized militias and states' rights whiel accentuating an individual right of all citizens -- women as well as men, nonvoters as well as voters, civilians as well as militiamen -- to keep guns in private homes for personal self-prtection.

 

The United States today has the finest, most profressional, best trained fighting force ever assembled. It can beat any enemy in war, and it has never been used to suppress American citizens. Perhaps individual rights and liberty are so interwoven into the American story and psyche that the Army could never be used against its own people. Perhaps the fact that the military is made up of American citizens who volunteer to server their neighbors means that the Army will always be the best of us, even proitecting us from ourselves. If this is the case, then there is nothing in the world that even the best crafted constitional provision can add by way of protection.

Why Polls Matter

The Bush Administration is well known for ignoring polls, especially the ones showing low approval ratings. While I'm sure they secretly basked in the glow when the ratings were sky-high after 9-11, no one was asking if he believed in polls either; the opposite of a "sunny weather" phenomenon, only getting asked about poll numbers when they are going down.

After reading a passage in chapter 9 of Machiavelli's "The Prince" (Concerning A Civil Principality), I wondered if Bush's fate was described 500 years ago. Here, a "prince" was any sovereign leader of a State and "people" meaning the citizens of a free state as opposed to the subjects of a monarchy.

The worst that a prince may expect from a hostile people is to be abandoned by them;

My question is whether this is exactly what happened to Bush after Katrina. Through his personal inaction and acceptance of the incompetence of others. The best quote of article is,

"Brownie, you're doing a heck of a job," Bush said.

Brown resigned 10 days later.

Bush was abandoned by the people. His stubbornness continues through Obama's fateful inauguration. Could it have triggered the next step (see Machiavelli chap 19 "That One Should Avoid Being Despised And Hated")?

So, why do polls matter? Consider another quote from the L.A. Times article on Bush's former aides and their take on his presidency.

In the months after the 9/11 attacks, Dimock said, when his polling asked for a single word to describe Bush's presidency, the most frequent responses were "leadership" and "strength." After Katrina, he said, "the top word was 'incompetent.' "

Bush liked to brush off bad poll numbers by saying that making tough decisions makes you unpopular. People weren't just disagreeing with his decisions, they were changing their opinion his ability to lead. So, like the proverbial baby and bath water, Bush's rejection of polls didn't just disregard the people's opinion of him but turned a blind eye to the people's disregard and rejection of his presidency.

Bush's Final Report Card

Bush Wins and Losses

Stem Cell Research - L
Intelligence plane over China incident - W
9/11 - W
Afganistan - W
WMD - L
Iraq - L
The Surge - W
Mission Accomplished banner - L
Plamegate - L
No pardon for 'Scooter' Libby - W
Abu Graib(sp) - L
Guantanamo Bay - L
Torture/waterboarding - L
Supreme Court Nominees - no decision
Katrina - L
Head of FEMA nomination - L
Stimulus package 1 - L
Stimulus package 2 - L
SEC oversight - L
Financial industry oversight - L
Darth Chaney - L
unitary executive theory - L
VP part of the legislative branch - L
Politization of science policy - L
Firing of 8 Federal Procecutors - L
Keeping Rumsfeld too long - L
'Axis of Evil' - L
North Korea - W
Iran - L
Canning Kyoto - no decision
“Enhanced interrogation of terrorists.” - L
Rebuilding presidential authority - L
Mid-east policy - L
No Child Left Behind - L
Medicare prescription drug benefits - L
Better relations with east Asian democracies - W
Compasionate Conservatism - L
Global Gag Rule - L
Terri Shiavo - L
Extraordinary Renditions - L
Relations with Russia - L
Relations with Europe - L
Relations with South America - L
Genocide in Africa - L

I'll add more to this as I think of them.

Torture part 2

This is a response to Craig's comment on my 'To Torture...' post.

The Omar case is a good example of micromanagement-through-policy. Heinlein's book 'Starship Troopers' has a similar example where a sergeant violated a direct order (to stay above ground) in order to achieve a strategic objective (capture of a enemy leader). The soldier had to be sufficiently disciplined to obey orders but also to be intelligent enough to know that there are valid reasons to disobey.

As for the usefulness of extreme interrogation methods, we have an inordinate amount of evidence that torture does not work. Another of Heinlein's books, "Friday" has a torture scene where the author very clearly examined the aspects of torture and very systematically repudiated any purported benefits. The poor soul you are torturing will tell you whatever you want to know just to get you to stop. Will you sometimes get the truth, surely. Will you save lives, probably. Will you be able to count the lives thus saved, unlikely. Will you still have the credibility for moral leadership, no. There is a caveat to this last point. It is possible to forgive a Prince who uses force, see Machiavelli's "The Prince" Chapter VIII [http://www.constitution.org/mac/prince08.htm] where he says this:

Hence it is to be remarked that, in seizing a state, the usurper ought to examine closely into all those injuries which it is necessary for him to inflict, and to do them all at one stroke so as not to have to repeat them daily; and thus by not unsettling men he will be able to reassure them, and win them to himself by benefits. He who does otherwise, either from timidity or evil advice, is always compelled to keep the knife in his hand; neither can he rely on his subjects, nor can they attach themselves to him, owing to their continued and repeated wrongs. For injuries ought to be done all at one time, so that, being tasted less, they offend less; benefits ought to be given little by little, so that the flavour of them may last longer.

While Machiavelli was referring to State building, I believe the same holds for the use of violent means during a conflict. The moral outrage was less about that torture was used and more about the idea that it could continue long after the crisis. Speaking for myself, I can forgive the Bush administration for its use of harsh methods in exigent circumstances. I can not forgive the unwillingness to disavow the use of torture in the future. We can not live in war-time forever just because it excuses bad behavior by those in power. Being unwilling to acknowledge that waterboarding is torture had few logical explanations in my mind; a) so as not to admit that we might have tortured in the past, b) to protect those who inflicted torture from prosecution by the law, c) because they considered acceptable behavior by a state. The first point implies knowledge of guilt, the second points to a conspiracy of the guilty, and the third is evidence of a twisted character.

Inflicting pain onto, or dismissing the pain of, others has always been the distinction of the sociopath; little boys who enjoyed pulling the wings off flies or torturing neighborhood cats and grew up to be serial-killers or rapists. Their lack of empathy makes them a danger to society.

Let's get back to basics. Is torture ever 'Right'? Is it ever 'Just', 'Fair', or 'Moral'?
I submit to you that torture violates the principles upon which this great nation was founded. Making an exception for your 'Jack Bauer' scenario only shows that it is sometimes considered necessary, convenient, and / or expedient, none of which I would want held up as examples of our society's defining characteristics.

The Era of National Services

Mort Kondrake ponders that a new "era of national service" might be upon us with the energized leadership and network of President Obama. This would dove-tail nicely with Larry Sabato's call for a Universal National Services (UNS) amendment to the Constitution. Of course this is a controversial call, because the typical cry from the far-Right that "this is an un-American imposition of government authority upon individual liberties" has predictably surfaced already. The din of the shrill would become nearly unbearable if and when a serious debate ever broke out on Sabato's proposal.

Rather, UNS is compatible with American notions of liberty if liberty is seen as freedom exercised within the context of responsibility and care for our neighbors and the "least of these," to use the scriptural phrase. Liberty practiced within a context of responsibility reinforces the other American values of life and the pursuit of happiness (property), as the young adults who go through a period of service to others will learn more about what it is to be a citizen of the United States and to be a human that gives to the world rather than taking from those around him or her. Additionally, the work of volunteers would benefit many people through direct help and improved infrastructure -- buildings, streets, freeways, forests, aid centers, homes, and various other property.

To Torture or not to Torture?

Craig said, “While this is a necessary step to regain some semblance of control over the interrogation process, I hope we don't live to regret such a blanket prohibition on more forceful interrogation techniques. It would be wise to consider Bill Clinton's suggestion to allow the use of such techniques only under the explicit authorization of the President.”

I believe that Clinton was referring to a situation where torture was explicitly forbidden. If a scenario were so dire that torture was felt necessary, by commanders in situ, to obtain life-saving intelligence, the President has always had the power issue pardons after the fact.

Pre-authorizing torture has no place in a Republic that values "Liberty and Justice for all".

No Tolerance For Common Sense

I've always thought that 'No Tolerance' policies were a short-sighted attempt by school boards to inoculate themselves from having to exercise common sense. Would we really want to live in a world where 13-year-old girls are strip-searched for ibuprofen instead of expecting school principles to exercise discretion even if that means occasionally being disappointed by the misuse of said discretion?

Do you know if your school board would allow this shocking treatment if it were your child? Have you asked them?

http://www.cnn.com/2009/CRIME/01/16/teen.strip.search/index.html?eref=rss_topstories

No Tolerance means No Brains; say NO! to No Tolerance.

Another case of "Does the Constitution REALLY mean what it says"? Contemplating the Burris appointment

The appointment of Roland Burris to the U.S. Senate by embattled Illinois Governor Rod Blagojevich has predictably stirred up debates among the media and legal community over whether the Senate has constitutional power to refuse to seat Burris. On the side of those who say that the Senate is empowered to refuse Burris' appointment is Article 1 Section 5 of the Constitution:

Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members

On the side of those who say the Senate does not have the power to refuse to seat the ex-Illinois attorney-general is the Supreme Court decision in Powell v. McCormack that said the House's power to judge Qualifications was limited to constitutional qualifications.

Be that as it may, it is not constitutional qualifications that are being questioned in the current case. It is the process of the appointment that is under investigation. It would seem to me that the Powell precedent does not apply. Along this line of reasoning, two constitutional thinkers at Balkinization speculate:

Can The Senate Refuse to Seat Roland Burris? Quite Possibly by Jack Balkin

The Burris appointment -- another view by Mark Tushnet