Archive for October, 2006

Facts on Iraq War

Posted in Bush Watch on October 30, 2006 by americanexile



More Va Republican Dirty Tricks!

Posted in Politics on October 25, 2006 by americanexile

Posted Oct 13th 2006 8:28AM by David Knowles
Filed under: Virginia Senate, Republicans, Media

After a rather bumpy autumn on the campaign trail, the brain trust behind Virginia’s George Allen has come up with an ingenious strategy to retain “the Man Who Won’t be President’s” Senate seat. It’s elegant, really. So simple you wonder why they didn’t think of it sooner.

“The Allen campaign used the technique last week, when staffers hastily called a news conference with Allen and Republican Sen. John W. Warner to respond to an earlier Webb news conference about the failures of the Iraq War. The result: Allen was asked a handful of questions, and reporters were not permitted to ask follow-up questions. The phones of reporters who the campaign believed would ask tough questions were simply kept mute the entire time.” — Washington Post

Bravo! That’s called knowing your weaknesses, and talking too much is certainly one of Mr. Allen’s. Best to button that lip as much as possible for the duration of the campaign. Actually, wait a minute. If you think of it that way, then maybe he’s presidential material after all. Full article here.

Three Questions for America

Posted in Politics on October 5, 2006 by americanexile

By Ronald Dworkin


Nothing frightens liberals and moderates more, I think, than the vision of religious organizations and movements dictating what may be taught to children in public schools, either through formal legislation or school board rulings or informal intimidation of teachers. Many Americans are horrified by the prospect of a new dark age imposed by militant superstition; they fear a black, know-nothing night of ignorance in which America becomes an intellectually backward and stagnant theocracy. But someone must decide what children are taught about history and science. If the elected school board or the majority of parents in a particular jurisdiction sincerely believes that Darwin’s theory of evolution is radically wrong, why should they not have the power to prevent that error from being taught to their children, just as they have the power to prevent teachers from converting their classes to the Flat Earth Society? It is no answer that children must not be taught the biblical theory of creation because the Bible must be kept out of the classroom. The Bible also condemns murder but that does not mean that children cannot be taught that murder is wrong.

But the cosmological and biological beliefs of the religious conservatives do not just coincide with their religious convictions: they would reject those cosmological and biological beliefs out of hand if they were not dictated by those religious convictions. Almost all religious conservatives accept that the methods of empirical science are in general well designed for the discovery of truth and that their children must be taught the reliability of those methods if they are to be prepared for their lives. They would not countenance requiring or permitting teachers to teach, even as an alternate theory, what science has established as unquestionably and beyond challenge false: that the sun orbits the earth or that radioactivity is harmless, for example. The biblical account of the creation of the universe and of human beings is just as silly if it is treated not as a myth but as a scientific explanation. Some religious people find that for them faith trumps science in these and the other few remaining areas in which faith challenges science. They deny the truth of Darwinian theory in the self-conscious exercise of their personal responsibility to fix the role of faith in their lives. That is their right: it would be a terrible violation of liberty to try to coerce them out of that conviction. But they must not try to impose that faith on others, including children, most of whom attend public schools.

In recent years a few religious scientists have claimed a refutation of the main tenets of Darwinian evolution that does not rely on biblical authority or the biblical young-Earth account of creation. This refutation purports only to show that an “intelligent design” rather than the unguided processes of random variation and natural selection that Darwin postulated must be responsible for creating life and human beings. The thesis has quickly gained enormous attention and notoriety. Several states have considered requiring teachers to describe the intelligent design theory as an available alternative to standard evolutionary theory in public high school biology classes. A Pennsylvania school board adopted that requirement a few years ago, and though a federal judge then struck the proposal down as an unconstitutional imposition of Christian doctrine in public schools,[1] other public bodies in other states are still pursuing similar programs. President Bush recently appeared to endorse these campaigns: he said that “I felt like both sides ought to be properly taught.”[2] The Senate majority leader, Bill Frist, who is said to covet the Republican nomination for the presidency in 2008, agreed. He said that teaching intelligent design theory along with evolution, as competing scientific explanations of the creation of human life, was fair because it “doesn’t force any particular theory on anyone.”[3]

If there is any scientific evidence against evolution, then of course students should be taught what it is. But the intelligent design movement has discovered no such scientific evidence at all. We must distinguish the following three claims. (1) Scientists have not yet shown to all their satisfaction how the Darwinian processes of random mutation and natural selection explain every feature of the development of plant and animal life on our planet; some features remain areas of speculation and controversy among them. (2) There is now good scientific evidence that these features cannot be explained within the general Darwinian structure; a successful explanation will therefore require abandoning that structure altogether. (3) This evidence also at least suggests that an intelligent designer created life and designed the processes of development that have produced human beings.

The first of these claims is both correct and unsurprising. The details of evolutionary theory, like the phenomena it tries to explain, are enormously complex. Eminent biologists disagree in heated arguments about, for example, whether some features of developed life are best explained as accidents or byproducts of no survival value in themselves. Evolutionary biologists face other challenges and disagree in how best to meet them.

The second of the three claims is false. It does not follow from the fact that evolutionary scientists have not yet found or agreed on a solution to some puzzle that their methods have been shown to be defective, any more than it follows from historical controversies or unproved mathematical conjectures that the methods of historians or mathematicians must be abandoned. Scientists have so far found no reason to doubt that the evolutionary puzzles can be solved within the general apparatus of neo-Darwinian theory that supplements Darwin with the dramatic recent discoveries of genetic biology. None of the rival solutions that scientists offer to the puzzles of evolution calls that general apparatus into question. The proponents of intelligent design theory claim in their lectures, popular writing, and television appearances that the irreducible complexity of certain forms of life proves that Darwin’s theory must be rejected root and branch. No element of certain even primitive forms of life could be removed, they say, without making it impossible for that form of life to survive. But their arguments are very bad, a judgment confirmed by their failure so far to expose these arguments to professional review by submitting articles to peer-reviewed journals.[4] It is no explanation of this failure to suppose that the scientific establishment would reject even well-reasoned articles that challenged Darwin. On the contrary, a scientifically sound general attack on evolution would be very exciting news indeed: a Nobel Prize might be around the corner.

The third claim would be false even if the second claim were true. The proponents of intelligent design do not state explicitly that the designer must be a god—they try to avoid overtly religious claims in hopes that the constitutional bar to religious instruction in public schools would not prevent their theory being taught there—but that is the clear and unacceptable implication of their argument. If the failure to find a natural physical or biological explanation of some physical or biological phenomenon were taken to be evidence of intervention by a god who intended to bring about that phenomenon, science would disappear.

Science depends on the possibility of verification or falsification through positive evidence. There might conceivably be evidence that a superhuman power exists and has caused an otherwise inexplicable event. But the mere absence of a more conventional scientific explanation is in itself no such evidence. If it were, then we could postulate divine intervention in pursuit of some divine plan to explain anything we could not otherwise explain. Doctors have established a strong correlation between cigarette smoking and lung cancer, but they do not yet know the mechanisms through which one causes the other. Why should we not then say that an explanation is nevertheless at hand: that God punishes selected cigarette smokers in that way? Indeed, divine intervention would then be available even as a rival to a fully adequate conventional explanation. Why should we prefer a climatologist’s account of global warming, which suggests that the process will continue unless and until people reduce the level of their carbon pollution of the atmosphere, to the rival account that a god is warming the planet for his own purposes and will cool it again when he wishes?

Very few socially conservative Americans would vote for a school board that allowed teachers to explain anything they wished by citing a supernatural intelligence at work. The intelligent design theory appeals to some of them because it uses the idea of such an intelligence only to confirm the plausibility of the specific miraculous claims that are described in the Bible. But science can provide no reason for restricting appeals to supernatural intelligence to those that confirm the claims of a particular religious tradition. Only faith can do that, and faiths differ dramatically. So once appeals to a supernatural intelligence are recognized as competitive with scientific explanations, the damage to reason cannot be limited or controlled.

I am not denying the truth of any theological hypothesis: I am not denying that those many millions of people who believe that a god created the universe or life or human beings are right. But their belief, even if it is in some way warranted, does not provide a scientific explanation of those events. This distinction is not merely semantic. I am not quibbling about the meaning of “science.” If we are to protect dignity by protecting people’s responsibility for their own personal values, then we must build our compulsory education and our collective endorsements of truth around the distinction between faith and reason. We need a defensible conception of science not only for the intensely practical reason that we must prepare our children and youth to advance knowledge and to compete in the world’s economy but also in order to protect the personal responsibility of our citizens each for his own religious faith. We need an account of science, in our public philosophy of government, that does not make its authority depend on commitment to any set of religious or ethical values. So Senator Frist made a serious mistake when he said that describing intelligent design only as a scientific alternative to evolution doesn’t “force any particular theory on anyone.” In fact it damages young students, practically and politically, by using the state’s authority to force on them a false and disabling view of what science is.

When President Bush said that intelligent design should be taught in the schools, his science adviser, John Marburger, said that Darwinian theory is “the cornerstone of modern biology,” and that Bush meant only that “students should be taught that some people have suggested that Intelligent Design is a viable alternative theory.”[5] If so, we should welcome Bush’s suggestion, but not for courses in science. Instead we urgently need to make a Contemporary Politics course in which such claims can be discussed part of every high school curriculum.

I do not mean civics lessons in which students are taught the structure of our government or history courses in which America’s story is recounted. I mean courses that take up issues that are among the most contentious political controversies of the day, including, for example, the case for and against abortion; affirmative action in public education; the role of money in politics; the fairness of the tax system; and the role of civil liberties in shaping and limiting antiterrorist activities. The dominant pedagogical aim must be to instill some sense of the complexity of these issues, some understanding of positions different from those the students are likely to find at home or among friends, and some idea of what a conscientious and respectful argument over these issues might be like. The dominant pedagogical strategy should be an attempt to locate these controversies in different interpretations of principles the students might be expected themselves to accept: for example, the principles of human dignity that I believe are embodied in the Constitution and are now common ground in America.[6]

The courses might well include an examination of classics of Western political philosophy from both the conservative and liberal traditions so that students could gain some understanding of the ideas of Aquinas, Locke, Kant, Rawls, and Hayek, for example, drawing on secondary sources and explanatory texts if necessary. The materials and teaching must be geared to the abilities of high school students, of course, but I believe that we are more likely to underestimate than overestimate those abilities. People who can master the intricacies of peer-to-peer file sharing through the Internet should have no trouble with the Categorical Imperative; indeed some study of the latter might help them in deciding whether the former is fair.

Contemporary Politics courses would be extremely challenging and difficult to teach, particularly unless and before some broad consensus had developed among teachers and in schools of education about how they should be taught. Teachers would have to steer between anodyne banality and indoctrination and they would have to recognize that the first of these failures is as much to be avoided as the second. But think how much it would improve our politics if students leaving high school had some understanding of the reasons why a deeply devout person might nevertheless prefer a tolerant secular state to a tolerant religious state, or why an atheist might think that public celebrations of religion were appropriate in a nation the vast majority of whose members were religious. Or if those students had been asked to consider what differences were morally permissible in a state’s treatment of citizens and aliens who are arrested as terrorist suspects. Or if they had actually read and debated the opinions of Justice Margaret Marshall and Chief Judge Judith Kaye in the Massachusetts and New York gay marriage cases and, if they disagreed with those opinions, had been challenged to say why. Or if they had been invited to consider what made a theory scientific and whether the intelligent design theory of creation met whatever standard for classification as science they considered appropriate.

I know, of course, that this suggestion bristles with possibly insuperable political difficulties. The selection of texts would be intensely controversial and the danger of manipulation by local political and religious groups very great indeed. It would be much easier for everyone—school boards, school principals, and teachers particularly— if nothing like this were attempted. But we cheat our children inexcusably if education is so remote from political issues that we allow the nation to continue only to masquerade as democratic. The idea that public education is a school for democracy is certainly not new: it was at the center of John Dewey’s enormously influential educational philosophy. What is new in this suggestion is only its specificity about content and its high ambition; but that is driven only by a more realistic opinion of what genuine democracy needs and the cost we pay in legitimacy so long as we fail to provide it.



Consider another issue of contemporary controversy: the American Pledge of Allegiance. This is the official pledge of political fidelity that by tradition is recited in schools and on some ceremonial occasions. In 1954, after a campaign by the Knights of Columbus, Congress added to that ritual pledge a reasonably ecumenical religious declaration: the pledge says that America is “one nation under God.” The pledge is voluntary: the Supreme Court held long ago, even before this reference to God was made part of it, that schoolchildren could not be forced to recite it. Many religious people support the reference to God in the official pledge because they believe it both symbolizes and achieves an indispensable fusion of religion and patriotism. They point out that since no one is required to recite the official pledge, no one is forced into an act that contradicts his conscience. They might acknowledge that an American who stands silent while the crowd around him recites the pledge is made to feel an outsider. That is nevertheless his choice, however: if he cannot subscribe to an ecumenical endorsement of monotheism he is an outsider, and there can be no harm in reminding him and everyone else of that fact.

But the dignity we should try to preserve for all citizens does not simply command that no one be forced to recite what he does not believe. It assigns each of us a positive responsibility to choose ethical values for ourselves, and though we know we are influenced by thousands of dimensions of culture in making those choices, we must nevertheless refuse to accept subordination to a government that deliberately and coercively manipulates our choices. No requirement of justice demands an official pledge that makes some full citizens feel like outsiders. Government can have only one motive in choosing such a pledge. It acts to strengthen the association of religion and patriotism—presupposing that that association is desirable—in a way that makes it more difficult for someone who wishes to embrace patriotism free of religion to do so. It is plainly part of people’s responsibility for their own values to define for themselves the religious or metaphysical assumptions of political allegiance. The coercive impact of an officially endorsed ritual is no more acceptable than the open manipulation of compelled assertion.

That coercive impact, however, is in fact not very strong and so though the official Pledge is a violation of liberty it is not a practically serious one. Just as an atheist can fish in his pocket for a coin that bears a message of trust in God or stand at the opening ceremony of prayer in congressional or court sessions without any sense of self-betrayal, so he can mouth the words of the Pledge, or skip the words he finds objectionable, without loss of integrity. Few children treat the detailed wording of the Pledge they recite in school as having the authority even of the solemn vows they make in the playground. But that only means that the intended purpose of making the Pledge theological has failed, not that that purpose is in itself legitimate.

There is, in my own view, even less reason for concern about a subject that has much occupied the federal courts: public displays of ceremonial icons that have a religious heritage and association but also have a nonreligious civic function in holiday festivities. It is true that public Christmas trees are bought with taxes collected from nonbelievers, but the expense is trivial. It would be wrong for a community to recognize the great occasions of only one of the religions of its members, which explains why Christmas trees are now often flanked by menorahs and no doubt, in some places, crescents as well. Equality of concern and respect for citizens is an independent requirement. But as the Supreme Court has come to recognize in a series of awkwardly expressed opinions, there is precious little endorsement of religion in these public displays and nonbelievers can comfortably enjoy their secular significance with no more sense of inauthenticity than they feel when they spend a quarter.



My final example—gay marriage—is a very different matter. Though the laws of the American states differ in the advantages they give to married couples over couples who live together unmarried, these advantages are substantial throughout the country. Married couples enjoy more favorable tax rates, insurance opportunities, intestacy and inheritance status, workman’s compensation benefits, and the opportunity to participate in medical decisions affecting their partners. So the prohibition in almost all states against same-sex marriage is a cause of substantial economic and other deprivation.

The discrimination is sometimes defended on the ground that different-sex couples are much more likely than same-sex couples to raise children and that states should therefore offer special encouragement to the marriages of men and women in order to form legally sanctioned relationships that promote family stability. That argument offers no justification for the discrimination, however: it would not injure the stability of different-sex marriages also to encourage stability in same-sex partnerships. The discrimination is also defended on the different ground that it is better for children to be raised by different-sex parents than same-sex parents. But there is no genuine evidence for that claim and, in any case, same-sex couples are now permitted in many states to adopt children who would presumably also benefit from a legally sanctioned stability of their parents’ relationship.

Some defenders of a ban on same-sex marriage therefore concede that states should recognize a special “civil union” status, which same-sex couples may enter, as Vermont, California, Connecticut, and several foreign countries have done. This is not recognized as a marriage but nevertheless provides many of the legal and material benefits of marriage. Such a step reduces the discrimination, but falls far short of eliminating it. The institution of marriage is unique: it is a distinct mode of association and commitment with long traditions of historical, social, and personal meaning. It means something slightly different to each couple, no doubt. For some it is primarily a union that sanctifies sex, for others a social status, for still others a confirmation of the most profound possible commitment. But each of these meanings depends on associations that have been attached to the institution by centuries of experience. We can no more now create an alternate mode of commitment carrying a parallel intensity of meaning than we can now create a substitute for poetry or for love. The status of marriage is therefore a social resource of irreplaceable value to those to whom it is offered: it enables two people together to create value in their lives that they could not create if that institution had never existed. We know that people of the same sex often love one another with the same passion as people of different sexes do and that they want as much as heterosexuals to have the benefits and experience of the married state. If we allow a heterosexual couple access to that wonderful resource but deny it to a homosexual couple, we make it possible for one pair but not the other to realize what they both believe to be an important value in their lives.

Civil union status may provide many of the legal and material benefits of marriage, but it does not provide the social and personal meaning of that institution because marriage has a spiritual dimension that civil union does not. For many people, this is a religious dimension, which some same-sex couples want as much as some heterosexuals do. For others it is the participation in the historical and cultural traditions that both kinds of couples covet. But whatever it is, if there are reasons for withholding the status from gay couples then these must also be reasons why civil union is not an equivalent opportunity.

The only genuine argument against gay marriage has the same form as the argument for a religious Pledge of Allegiance, but the stakes are of course very much higher. The case against gay marriage, put most sympathetically, begins with the premise that the institution of marriage is, as I said, a unique and immensely valuable cultural resource. Its meaning and hence its value have developed over centuries, and the assumption that marriage is the union of a man and a woman is so embedded in our common understanding that it would become a different institution were that assumption now challenged and lost. Just as we might struggle to maintain the meaning and value of any other great natural or artistic resource, so we should struggle to retain this uniquely valuable cultural resource.

I believe that argument to be the strongest that can be made against gay marriage. It raises a larger and even more important issue. Who should have control, and in what way, over the moral, ethical, and aesthetic culture in which we must all live and that defines the meaning of our social and legal institutions and shapes our lives in many other ways?

That complex culture is molded by many forces but I now isolate two of these. It is shaped organically, by the discrete decisions of individual people about what to produce and what to buy and at what price, about what to read and say, about what to wear, what music to listen to, and what god if any to pray to. Our culture is in large part the result of many millions of such decisions that people make, as individuals, one by one, every day. But our culture is also shaped by law, that is, by collective decisions taken by elected legislators about how we must all behave. Interest rate policy fixed by the Federal Reserve Board shapes our economic culture, zoning ordinances shape our aesthetic culture, civil rights laws shape our moral culture. How shall we decide which aspects of culture should be influenced collectively in that way, and which should be left to the organic process of individual decision?

Americans who oppose gay marriage on the cultural ground I just described believe that a majority of citizens has the right, acting through the normal political process, to shape the religious and spiritual character of our shared culture by law. Those who favor permitting gay marriage believe, on the contrary, that a religious and spiritual culture must be shaped organically, by the individual, free decisions of everyone. Which view best matches our shared ideals and principles of human dignity?

Those principles assign each of us a responsibility to assess and choose ethical values for himself rather than to yield to the coercive choices of others. Our culture of course influences our choice of values; our personalities are in that way all partly constructed out of the millions of choices that others have made for themselves. Their choices determine in large part the books we read, the images we see, and the expectations that shape what we instinctively do. Dignity does not forbid this inevitable influence.

But it does forbid subordination, which is something very different. It forbids my accepting that other people have the right to dictate what I am to think about what makes a good life or to forbid me to act as I wish because they think my personal values wrong. Dignity therefore forbids me to accept any manipulation of my culture that is both collective and deliberate—that deploys the collective power and treasure of the community as a whole and that aims to affect the personal choices and values of its members. That is subordination. I must reject manipulation even if the values it is designed to protect or instill are my own values. My dignity is as much outraged by coercion intended to freeze my values as to change them.

It is worth noticing that Americans are unwilling to grant political majorities a parallel collective power over the fundamentals of our economic culture. Socialist societies do give people in power the authority to shape the economic environment for everyone by stipulating prices and the allocation of resources and production. But we insist on a free market in goods and services: we insist, that is, that the economic culture be shaped by a composite of individual decisions reflecting individual values and wishes.[7] The socialism of a centrally controlled economy is an insult to liberty as well as to efficiency—a view most enthusiastically held by the conservatives who favor a religious model for non-economic culture. They do not realize that liberty is even more perilously at stake in the religious than the economic case.

It becomes dramatically clear that the cultural argument against gay marriage contradicts our shared ideals of personal dignity when we substitute “religion” for “marriage” in the argument I constructed. Everything I said about the cultural heritage and value of marriage is equally true of the general institution of religion: religion is an irreplaceable cultural resource in which billions of people find immense and incomparable value. Its meaning, like that of marriage, has evolved over a great many centuries. But its meaning, again like that of marriage, is subject to quite dramatic change through organic processes as new religions and sects develop and as new threats to established doctrine and practice are generated by secular developments in science or politics or theories of social justice—in the feminist movement, for instance, that demands women priests—or by the rise and fall in popular imagination of various forms of mysticism, hallucinogenic experimentation, pantheism, Unitarianism, fundamentalist doctrines, radical liberation movements, and a thousand other shifts in religious impulse that begin in individual decision and end in seismic changes in what religion can and does mean. American religious conservatives, even those who regard themselves as evangelical, do not imagine that the cultural meaning of religion should be frozen by laws prohibiting people with new visions from access to the title, legal status, or tax and economic benefits of religious organization.

The cultural argument against gay marriage is therefore inconsistent with the instincts and insight captured in the shared idea of human dignity. The argument supposes that the culture that shapes our values is the property only of some of us—those who happen to enjoy political power for the moment —to sculpt and protect in the shape they admire. That is a deep mistake: in a genuinely free society the world of ideas and values belongs to no one and to everyone. Who will argue—not just declare—that I am wrong?


[1] Tammy Kitzmiller et al. v. Dover Area School District et al., United States District Court for the Middle District of Pennsylvania, Judge John E. Jones III Memorandum Opinion, December 20, 2005.

[2] Elisabeth Bumiller, “Bush Remarks Roil Debate on Teaching of Evolution,” The New York Times, August 3, 2005.

[3] David Stout, “Frist Urges 2 Teachings on Life Origin,” The New York Times, August 20, 2005.

[4] See Kitzmiller v. Dover Area School District. For a very clear statement of the scientific errors in the intelligent design argument, see Philip M. Boffey, “The Evolution Wars, Revisited,” The New York Times, January 18, 2006.

[5] Bumiller, “Bush Remarks Roil Debate on Teaching of Evolution.”

[6] I describe the principles of dignity in my forthcoming book Is Democracy Possible Here?, to be published by Princeton University Press. This essay draws on parts of the book.

[7] Distributive justice requires that our free market be structured to protect against external influences of different kinds, and to protect people who for other reasons will not be treated fairly by pure market allocation. But an acceptable market regulation must take a form that does not deprive any group or person of an impact on supply and price that reflects its or his own wishes and values.

John Yoos Interview

Posted in Bush Watch, Justice on October 5, 2006 by americanexile

 “War by Other Means” by John Yoo

 If the views of the Bush administration’s critics were to prevail, and we were to treat September 11 and other terror attacks as crimes, our system would grant al Qaeda terrorists better legal treatment than that afforded to our own soldiers. The mechanisms of criminal justice forbid government searches of suspects or their possessions without a warrant issued by a neutral magistrate. Police cannot arrest a criminal without probable cause and upon arrest must provide a suspect with Miranda warnings, a lawyer, and the right to remain silent. A suspect has the constitutional right to a speedy trial by jury, and in that proceeding can demand that the government turn over all of its information about the crime and the suspect. He can challenge that information and call his own witnesses in open court. The government must provide all exculpatory evidence to the defendant and access to any witnesses who have information relevant to the trial. A convicted defendant can appeal to higher courts to challenge the verdict and then file for a writ of habeas corpus seeking federal judicial review of any constitutional errors in the trial.Because the Constitution’s Bill of Rights establishes these rules, they are not very flexible. They protect the innocent, but are expensive, tilt in favor of the suspect, and impose high standards of proof on the government. While police can arrest based on “probable cause,” a suspect must be released if prosecutors cannot succeed at trial. Courts can convict only if a jury finds that the government has shown “proof beyond a reasonable doubt,” which often means something close to certainty. Federal courts and the Supreme Court supervise these rules, which can take years of trials and appeals. If police make a mistake, even in good faith, such as seizing evidence without a proper warrant or failing to read a Miranda warning correctly, the courts will sanction the government by releasing the suspect regardless of the threat he poses to society. As Justice Benjamin Cardozo once observed, “The criminal is to go free because the constable has blundered.”

Our founding fathers established this constitutional system because of their concerns over the power of the government. It expresses a worry that the national government would use otherwise unlimited powers to engage in the suppression of political opposition. Sharing that suspicion, many legal conservatives have consistently pressed for the decentralization of power over domestic affairs. But it would be a mistake to believe that the Constitution’s framework for criminal justice should apply to war. The former involves the fundamental relationship between the people and its government, and so ought to be regulated by clear, strict rules defining the power given by the principal to its agent. The latter, however, involves a foreign enemy who is not part of the American political community, and so should not benefit from the regular peacetime rules that define it. Applying criminal justice rules to al Qaeda terrorists would gravely impede the killing or capture of the enemy, as well as compromise the secrecy of the United States’s military efforts.

According to the Supreme Court, a nation at war is entitled to detain as enemy combatants those “who associate themselves with the military arm of the enemy government, and with its aid, guidance and direction enter this country bent on hostile acts.” A nation at war may kill members of the enemy’s armed forces. But law enforcement personnel may use force only in defense of their lives or those of others. Once captured, an enemy combatant can be detained until the end of the conflict. Combatants have no right to a lawyer or a criminal trial to determine their guilt or innocence under the usual laws of war. They are simply being held to prevent them from returning to the fight.

While our soldiers are fighting under the rules of war, our enemy thumbs its nose at those rules by attacking in disguise and targeting civilians. As Osama bin Laden declared in 1998 on American television, “We do not have to differentiate between military or civilian. As far as we are concerned, they are all targets.” Yet the critics would have us give al Qaeda criminal justice protection precisely because it assumed civilian guise on U.S. soil and attacked civilian targets, effectively rewarding al Qaeda for violating every law of war ever devised.

September 11 put America on notice. Once, only nation-states had the resources to wage war. Al Qaeda is able to finance its jihad outside the traditional structure of the nation-state, and this may well extend to nuclear, biological, or chemical weapons. Mere networks of individuals—affinity groups—can now tap military power. Terrorist networks should not, through this loophole, be allowed to evade the laws of armed conflict among nation-states. While we are at war, we must also recognize that it is a different kind of war, with a slippery enemy that has no territory, population, or uniformed, traditionally organized armed forces, and that can move nimbly through the West’s open channels of commerce. We must take aggressive action to defeat al Qaeda, while also adapting the rules of war to provide a new framework to address the new enemies of the twenty-first century.

From War by Other Means copyright 2006 by John Yoo.

October 4, 2006 · The newly passed legislation regulating the treatment of terrorism suspects is designed to limit the hundreds of habeas corpus petitions from detainees at Guantanamo Bay that have flooded federal courts, according to John Yoo, a former official of the Bush administration who helped formulate policies for dealing with enemy combatants.The bill prohibits detainees held by the United States from filing lawsuits challenging their detention, known as habeas corpus pleadings.

A noncitizen who has been declared an enemy combatant has the right to go before a military tribunal for a hearing to challenge the evidence against him, but does not have the right to a lawyer.

“You have representation from an officer, but not necessarily one who’s a military lawyer,” Yoo explains. The defendant also does not have access to any classified evidence.

“Well, it’s not a criminal trial,” says Yoo, a law professor at the University of California, Berkeley, who served as a deputy assistant attorney general from 2001 to 2003.

“This is part of the way the rules of war have worked for a long time,” he says. “The military proceedings to determine if you’re an enemy combatant usually don’t require as much proof. You know, the point of the war is not to collect evidence and solve crimes. It’s to fight and defeat the enemy. So I think this sort of flexible process reflects the demands and the nature of warfare.”

Detainees, John Yoo and Freedom

Posted in Bush Watch, Justice on October 5, 2006 by americanexile

 The following is a selection of excerpts from letters sent in by listeners on legislation dealing with enemy combatants that was discussed in an interview with John Yoo, a former Justice Department official.‘Destroying Our Freedoms’

I was chilled to my soul to hear John Yoo describe clearly, and with apparent approval, the steps my country is taking towards becoming a police state, and his insouciance regarding the innocent victims certain to be caught up in the “enemy combatant” net. I’ve never believed President Bush’s simplistic assertion that the terrorists hate us for our freedoms but if Mr. Bush is right, then the President himself, his administration, and the Congress have become the tools by which the terrorists are accomplishing their goal of destroying our freedoms, a situation which the terrorists must regard with much glee. — Jim Larkin, New Haven, Conn.

‘Where is Our American Moral Sense?’

Yoo’s claim that allowing Habeas Corpus is “too expensive” is outrageous. We went to war with Iraq “on the cheap,” with not enough troops, and now we’re going to try prisoners “on the cheap?” Where is our American moral sense? Are these people enemy combatants simply because someone calls them that? We cannot keep these people detained for years in prison without charging and trying them. Would John Yoo accept being incarcerated for years without knowing why? — Andi Hubbard

‘War Is a Rough Business’

War is a rough business. In war, masses of combatants try to kill opposing masses by any means available. The consequences are brutal, and fairness is never the standard of conduct. Soldiers, guerrillas and innocents on every side are swept up in the conflict, and their experiences are predictably brutal and unfair. These are among the reasons why war is abhorrent. But once war commences, we cannot be so naive as to expect anything else. The injustice of being wrongly confined in a military prison pales in comparison to the agonies that the battlefield visits upon combatants and noncombatants alike. Yes, we should respect the Geneva Conventions. We should observe standards of that quality without international coercion. But, in the context of the world’s troubles today, fretting over civil rights at Guantanamo is a grotesque misplacement of priorities. — Jeff Morgenthaler, Boerne, Texas

‘Can This Be America?’

Listening to John Yoo talk about this new legislation was chilling. I’m a federal judge, and have taught constitutional law for 16 years. The very idea of holding anyone without trial, without the right to see the evidence that was used to justify naming them an “enemy combatant,” and depriving them of the ability to challenge why they are even there is so repugnant to a constitutional democracy that I am shocked that this man actually claims to be defending American values. These are the tactics of the old Soviet Union, not of a country that stands for freedom and the rule of law.

I also quibble with his contention that U.S. citizens still have the right to habeas review. I’ve read the law. The president can form his own tribunal, which can determine who is an “enemy combatant” (not just an alien enemy combatant), and the decision of that tribunal would not be subject to habeas review. Moreover, persons targeted by this tribunal would not even have access to the military tribunal trial created under this law.

How easy it would be for a president to use such a law to make his political enemies simply disappear. Can this be America? — Leif Clark, San Antonio, Texas

‘What Is the Definition of War?’

Bravo to Steve Inskeep for not letting John Yoo wriggle off the hook. This interview clearly illuminated one principal implication of this legislation, namely the establishment of a legal shadowland, beyond the pale of the presumption of innocence, where citizen and noncitizen alike can disappear without the full protection of due process. One thing I would like Mr. Inskeep to have pressed with Mr. Yoo: Just what is the definition of “war” he kept citing as justification for these draconian measures? — Steve MacIntyre, Beaver Dam, Ariz.

‘A Never-Ending War on Terror’

Mr. Yoo advocates a system that ensures every actual combatant will be held without trial even if that same procedural net causes 2 or 3 noncombatants to be detained also. This continuing erosion of our civil liberties and rights cannot be justified simply by saying we’re in the middle of a never-ending “war on terror.” Although eliminating habeas and allowing warrantless spying on American citizens may indeed make us safer and more likely to wake up in the morning, we may not recognize the country in which we wake. –Jim Polan, Tulsa, Okla.

‘A Betrayal of the Constitution’

As the mother of a U.S. Marine, I strongly disagree with the recent legislation concerning the rights of detainees. When young men and women join the military, they swear to defend the Constitution of the United States, a document based on our unwavering belief in the rule of law and the application of justice to all, a belief we hold so dear that we are willing to apply it even to those whom we consider our enemies. The Bush administration’s attempts to circumvent those principles are nothing less than a betrayal of that very Constitution and of the men and women in uniform who are sacrificing their lives to defend it. — Marguerite Weibel

‘The Spirit of 76’

Those who fought to create our republic understood that the right to challenge one’s detention, the Writ of Habeas Corpus, the Great Writ, is the cornerstone of liberty. The revolutionary generation understood that this right must be universal. Without the Great Writ tyrants can rule unimpeded, with it tyranny is circumscribed, forced to reveal its methods and thus is undermined… It falls to the current generation, to us, to recognize the fundamental threat which the Bush Administration has posed to our republic and to beat back the Administration’s attacks on liberty and human rights. We must recapture the “Spirit of 76” which recognized that fundamental rights are universal –- applying to all humans, in all portions of the world and at all times. It is time for true patriots to take up pen, take to the streets and turn out to vote in order to deliver an unequivocal message to Bush and the other rulers. It is time for the Spirit of 76 to rise once again and to once again beat back the tyranny of the contemporary version of King George. — Felice Pace, Klamath, Calif.

‘No Sense of Humanity’

I have followed John Yoo’s pronouncements for quite a while since he appears often on the News Hour. I simply do not ever agree with his type of justice because it is not designed to protect us here in the U.S.A. but is designed to keep this administration’s missteps under wraps. This is a government padded under a thick veneer of secrecy. Yoo is brilliant but he has no sense of humanity. What is being legislated clearly puts our armed forces in jeopardy and often deprives other human beings who may very well be innocent, of justice. He argues that habeas corpus for this group would cost us money. What does he think $300 billion spent on an uncalled-for war is costing all of us? — Alexis Donovan, Yonkers, N.Y.

‘Dignity of Human Beings’

Show me a society’s rules of procedure, and I will show you its soul. European jurisprudence established an absolute right of human beings to due process in the fourteenth century. It is a sad commentary on the state of modern society’s soul and its moral compass that the nation state and John Yoo put the preservation of the state above the worth and dignity of human beings. Yoo’s closing comment that Habeas Corpus should not be given to all human beings because of the “cost,” was extraordinarily callous and indifferent to moral principles. — Ken Pennington, Washington, D.C.

‘Release Our Enemy?’

Your commentator (Mr. Yoo) did the public and our service members a great disservice by an important omission — he FAILED to correct you by allowing the term “arrest” to be used during the interview. Combatants — legal or illegal — are not “arrested” on the battlefield. They are captured (or better yet, killed). And once captured, they may be detained under international law until the conflict (war) is over. By using this wrong term — arrested — we imply that normal, civilian type criminal due process is available to them. It is NOT.

Combatants, who are our enemy, are detained after capture. After all, do we want to release our enemy so they can rejoin their forces and continue to fight us? Absolutely not! But the public discussion has lost track of this important point. We get upset over the lack of criminal trials for the enemy and imply that we should release them under a writ of habeas corpus. Release them!??! No! NO! NO!! They are our enemy and they are trying to kill us. — LTC Stevan Rich, Riverside, Calif.

‘A Heady Outrage’

Yoo is an outrageous and insane man — as is the United States government for utterly destroying the letter and spirit of our Constitution. How DESPICABLE! How dangerous, frightening and foolish. To place so many lives on the line and then complain that they are costing money because they’re exerting erstwhile rights sounds like something out of the Soviet gulags. It leaves all the power in the hands of the Executive — King George III??? And after all the lies Bush has told — including getting us into a horribly botched war — and couple that with the “right to torture,” it is a heady outrage that should sicken and horrify every United States citizen. I’d like to see Yoo and Cheney and Rice be arrested and waterboarded without counsel to see if they think it is not some form of torture. — George Carter, Brooklyn, N.Y.

‘American Should Reengage the World’

Here is a suggestion: Perhaps America should NOT decide how suspected terrorists should be handled or tried for their violence against humanity. Perhaps instead America should reengage with the world community to determine what actions make sense in suppressing terror and upholding the rights of humanity. Maybe, just maybe, the world would then start think of America as a partner rather than as an egomaniacal nation with big cowboy nuke-boots. — Robin MacDuffie, Schoharie, N.Y.

‘A More Perfect System’

The Bush Administration has consistently shown itself to be untrustworthy in its handling of the truth, including the very facts that led our country to war in Iraq. It is highly disconcerting to me in this age of “Neo-McCarthyism” that more processes are not at the disposal of enemy combatants to challenge accusations made against them within the heightened crucible of wartime. With cases like U.K. citizen Omar Deghayes, or in the case of those other enemy combatants who have been tortured and then proven innocent of charges, we have already seen that the current system of handling this issue is an imperfect system. We should be striving for a more perfect system. — Frank Owen, Jackson, Miss.

‘Presumption of Innocence’

If the news story had been about China rather than the U.S., people would have been outraged at the power of the government to lock up anyone of their choosing with no recourse. I have been concerned for a while that no one seems to remember that presumption of innocence is one of the foundations of our country. — Judy Loren, Cumberland, Maine

‘Start Asking Legitimate Hard Questions’

Once again NPR chose the easy, nonconfrontational, let everything slide method of interview when Steve Inskeep allowed John Yoo to say in nearly every sentence, “I think,” “I believe.” This man is a lawyer, worked on this detainee issue, was in the Presidential loop, was an adviser on the thinking about detainees and he can only “think” or “believe” about it. If he can’t say what is exactly in the bill, then get someone who can. If nobody can be found who can answer definitely, then it is time to rewrite the bill so someone does know its content.

NPR needs to stop doing what all the other media are doing — not reporting the news at all, reporting the hard stuff only selectively, and allowing the interviewees to wiggle out of every hard question. Instead, start asking legitimate hard questions and expect and demand some straight answers. You will feel better about yourselves at the end of the day and know that you are finally doing what you are paid to do. — Paul Mitchell, Aurora, N.Y.

‘Ashamed To Be an American’

There is no balance without fair and equal rights for all. Just because someone is not born American, we do not have the right to confine them without a swift, fair trial. Those who agreed to this legislation have ruined the U.S. forever. This makes me ashamed to be an American. — Mary Luketich, Austin, Texas

The Cost of Habeas Corpus

I was chilled by Mr. Yoo’s assessment of the recent legislation regarding enemy combatants. Why the United States Congress would take steps to do away with 900 years of precedence regarding habeas corpus has yet to be rationally explained. But Mr. Yoo’s suggestion that Congress considered it “too expensive” to give the right of habeas corpus to foreign detainees is appalling. With the Congressional Budget Office estimating the monthly cost of the war in Iraq in the billions of dollars, the cost of moving even a few hundred people through the legal system is negligible. Such legislation — and such justifications as offered by Mr. Yoo — can do nothing but damage the position of the U.S. in the eyes of the world. — Maureen Haggstrom, Lexington, Ky.

‘Who Do We Think We Are?’

Without meaning to, Mr. Yoo raises a fundamental question for all Americans: Who do we think we are? Are we about “Give me liberty or give me death,” or is it “Let me shelter in place while an uncurbed central government imprisons and/or spies on me or my neighbors so somebody like Mr. Yoo can be said to feel more safe?” Mr. Yoo’s explanation that perhaps honoring habeas corpus rights is just too inconvenient and too expensive speaks volumes. — Elisa Grammer, Washington, D.C.

‘We Must Take Hard Actions’

It would be wrong to hold suspected terrorists if the only risk is that innocent people would also inevitably be imprisoned. This is how the picture is sometimes painted -— that this is the only risk, but it is not. It would be just as wrong NOT to round up and imprison alleged terrorists when in so doing we increase the safety of Americans. It cannot be argued that none of those being held are enemy terrorists. Some inevitably are fanatics who would do harm to America if they had the opportunity so we are adding safety to America by detaining true terrorists. The question is how to balance the additional safety provided by a program that captures real enemies with the cost to those wrongly held. If the proposition that this war is a real war is unacceptable, then it would be very hard to accept the guilt of imprisoning the innocent and harming America’s image. But if this is a genuine war, history teaches us that we must take hard actions and learn to accept the consequences along with the victory. — Allen Weber, Burleson, Texas

‘Basic Legal Protections’

I like to think that the United States provides basic legal protections to those accused of any crime, be it petty theft or terrorism, not because it’s convenient but because we believe that that there are basic human rights that all people possess. To deny those rights to any group of people, even if they are non-citizens accused of horrible crimes, is to damage the beliefs upon which the United States was founded. — David Lund, Staatsburg, N.Y.

‘Not the Same Rules’

Steve Inskeep did not seem to understand that the new rules applied to enemy combatants captured on the battlefield. Of course we are not going to use the same rules as someone arrested on the street. You hold them until hostilities cease and then you sort it out. — Glen Smith, Kanarraville, Utah

‘Justice Somehow Too Expensive’

It is difficult to reconcile the idea that in a little over 200 years, we have gone from Benjamin Franklin believing that it is better for 100 guilty persons to escape than for just one innocent person to suffer, to the concept that one of the best justifications the administration has for removing the right to habeas corpus is that justice is somehow too expensive. — Charles Walker, Chesapeake, Va.

‘Truly a Dictatorial Power’

When the leader of our country has the sole power to lock up forever anyone he sees fit to, we have passed over the line into dictatorship. No matter how justified the law seems in denying the legal process to our “enemies,” the President has the ultimate power to say who and who is not an “enemy,” thus he has the power to imprison anyone he sees fit to, truly a dictatorial power. — John Snow, Woodinville, Wash.

Related NPR Stories

Some Funky VP Stunts

Posted in Politics on October 5, 2006 by americanexile

Joan Didion did a comprehensive and revealing piece in the New York Review of Books, October 5, 2006, on the dark horse of the Bush administration….that shotgun sidewinder, our VP, Dick Cheney.

Here are a few highlights I find of keen interest.

The unitary excutive theory– What is this and where did it come from? What it is, is an inner circle radiating to the outer circle policy that whatever the administration decides to do will be declared legal even if to the rest of the world it appears and in fact violates the US constitution.

When questioned Cheney is noted for replying by saying:

1.”We believe we have all the legal authority we need”. His response to the NSA warrentless wiretapping in violation of existing statutes.

2. Author, through David Addington,  of the “torture memos” which advise the president to ignore the Geneva Convention rules on prisoner torture.

3.Also through Addington, vets every line of the federal budget to remove any wording that might restrain the president.

4.Addington under the hand of Dick Cheney also writes the infamous “signing statements” routinely issued to release the president from whatever restrictive intent might have been been present in that legislation. These statements are addendums to the actual bill and added as part of the signing act. In the past few have been aware of these statements..but with the frequent use of such in the Bush administration they have become a capital hill joke among Democrats and many moderate Republicans. In essence the president is saying the legislation does not apply to him as president, that he can violate the legislation at will. Sounds like the beginnings of sham democracy to me.

An additional note on signing statements: Signing statements are not new, but at the time Bill Clinton left office, the device had been used, by the first forty-two presidents combined, fewer than six times. George W. Bush, by contrast, issued more than eight hundred such statements during the first six years of his administrations. Critics of this enormous excess are decried as “tying the presidents hands”, erroding his ability to do his job” or “aiding those who don’t want him to do his job”.

5. Typical Cheney responses in defense of his stretches of legality.

“Bottom line is we’ve been very active and very aggressive defending the nation and using the tools at our disposal to do that.”

“Our country is at war and our government has an obligation to protect the American people from a brutal enemy that has declared war upon us.”

6. Cheney typically has been of the minset that the legislative branch of government is a massive inconvienence to governing openly objective to “checks and balances” in government. He has frequently expressed that during a time of war the president has special powers. After one year in offcie Cheney stated “I have repeatedly seen an erosion of the powers and the ability of the president to do his job.”

“We are weaker today as an institution because of the unwise compromises that have been made over the last thirty to thirty-five years,”

“Watergate-a lot of things around Wategate and Vietnam both in the 70’s served to erode the authority, I think, the President needs to be effective.”December 2005 on a flight to Oman.

7. Ignoring a court order Cheney refused to give up the notes containing the names  of attendees to an energy task force meeting held early 2001 claiming that the issue involved centered on the ability of the VP to have a conference with “citizens” to gain counsel on energy strategies for the future”. Seems innocent enough until you realize that some of the known attendees were the very rich energy execs who combined contributed $50M plus dollars to the recently won political campaign for the Republicans. It is impossible not to veiw this entire episode as an opportunity for the Bushies to scheme means to return favors for their generous contributions. Simply, the meeting, Cheney’s refusal to comply with the court order and the known attendees (Enron execs among them) doesn’t pass the smell test on any level.

News that Should be HeadLines!

Posted in News and politics on October 5, 2006 by americanexile

Kirk Fordham, fired today from Rep. Tom Reynolds’ (R-N.Y.) staff, is fighting back against GOP talking points. He told the AP today that he told House Speaker Dennis Hastert’s office in 2004 about worrisome conduct by former Rep. Mark Foley with teenage pages. It is, the AP noted, “the earliest known alert to the GOP leadership.” Apparently, the GOP leadership has been ignoring these concerns, and the safety of the pages, for a very long time.* In Iraq news, U.S. military casualties are rising despite a two-month security crackdown in Baghdad. Eight U.S. soldiers were killed on Monday — the most killed in a single day in the capital since July 2005.

* Speaking of Iraq, Colin Powell publicly rejected the administration’s “stay the course” approach to the war yesterday. Powell, the featured speaker at this year’s distinguished Carlson Lecture at the University of Minnesota, said “staying the course isn’t good enough because a course has to have an end.” (Just once I’d like to hear an administration official make a comment like this before leaving office.)

* In light of the recent spate of school shootings, TP reminds us that the Bush administration slashed funding for school violence prevention programs.

* Congressional Dems are still exploring the possibility of blocking this year’s annual pay raise unless congressional Republicans agree to increase the minimum wage.

* British Prime Minister Tony Blair was answering questions from some children this week when a young girl asked who is the most important person to visit 10 Downing Street. “I suppose the best known would be Nelson Mandela and Bill Clinton,” he replied. Suddenly realizing that he forgot to mention the current U.S. president, Blair added, “George Bush is obviously er …,” he stutters before asking an aide: “Has George Bush actually been here, yeah, no he’s been here, yeah … and then you get other people that come in from time to time.”