It Just Doesn't Stop With These Guys

The Bush administration has made a number of epic blunders in personnel selection, but their latest tops all others. Salon is reporting today that D. Reed Freeman, former "chief privacy officer" for the notorious malware company Gator has been appointed to Data Privacy and Integrity Advisory Committee of the Department of Homeland Security. Gator (aka GAIN) has truly been a trailblazer in the fields of ad-ware and spy-ware. Their exploits have been well documented and reported. They are just the sort of sleazy fucking scumbags I want watching over our nation's data privacy. The slashdrones are up in arms. If this goes through there will be riots of bespectacled, propeller-beanied geeks, flipping over cars and setting things on fire. It's almost worth it.

Look At the Numbers

Robert Samuelson has an excellent piece in the Washington Post analyzing both numbers and the press coverage of the Bush social security plan. He finds them both lacking, and draws parallels to coverage of the medicare drug plan and the subsequent shock at its high costs.

The FCC Can't Rule the World (or Take Your Broadcast Flag and Shove It)

As D-day for the odious broadcast flag approaches, the D.C. Circuit took oral arguments today in a challenge to the compatibility requirements by the EFF and other consumer groups. Although they expressed doubts about the challengers' standing, the judges left little doubt how they felt about the broadcast flag requirement. Said Judge Edwards: "Ancillary does not mean you get to rule the world. ... You've gone too far. ... Are washing machines next?" Added Judge Sentelle: "You can't regulate washing machines. You can't rule the world." Thank goodness for this bulwark of justice, the D.C. Circuit, bravely protecting our washing machines. Because we all know that regulating the washing machines is the first step to world domination. Anyway, so far so good. We'll have to see what happens with the standing issue though...

Realpolitik Hypocrisy?

In a Washington Post column, neocon Bob Kagan attacks liberals for hypocritically casting doubt on the newly elected Iraqi government. How, he asks, can liberals hold that the U.S. wrongly coddled politically convenient dictators during the Cold War, yet be critical of the democratically elected government that has replaced Saddam Hussein? Are liberals prejudiced against Shiites?

The response, I think, needs to address a number of points. First, is that criticism of the realpolitik approach that led the U.S. to overthrow democracies and train death squads comes with limits. Critics, as far as I know, never advocated that the U.S. should invade any country that doesn't meet Western democratic standards. The criticism was, and remains, that we should not allow short-term political convenience to overshadow our commitment to freedom and democracy. This is generally not a belligerent, hawkish group of people. They have advocated working within the international diplomatic and economic framework to advance our ideals and values.

The Bush administration stands as guilty as any Cold War administration in this regard. We invaded Afghanistan, not to promote democracy, but to take out Al Qaeda, and Iraq to secure Saddam's weapons of mass destruction. Meanwhile the U.S. has deepened its ties with numerous anti-democratic human rights violators all across the Middle East and Central, South, and South-East Asia. Bush's inaugural address notwithstanding, there has been no great commitment to democratic ideals by this administration.

Kagan's apparent response is that even if liberals would not have advocated invasion, shouldn't they celebrate the advances of democracy there? But, while the liberals we're talking about are critics of realpolitik, I think they are not critics of political realism. They don't advocate abandoning empirical analysis, but rather a shift in priorities and methods in pursuing American foreign policy objectives. As such they are rightly worried about the course of events in Iraq.

It requires no prejudice to be concerned about what will happen when the Shiite controlled government takes power. From my perspective, it is not any peculiar qualities of Shiites that worries me, but rather that they suffer from all of the usual weaknesses and frailties common to mankind. The Baathist purges of Shiites aside, the Sunni militants have consistently targeted Shiites in violent attacks since the occupation started (here are . a couple just from the past week). They have declined to retaliate largely due to the calls for restraint from the Ayatollah al Sistani, the same man who has driven the timetables both for the hand-over of sovereignty and the recent elections. Are we to think they harbor no animosity towards Sunnis, no desire for vengeance? Are these angels in the form of men? Or have they been playing hard-ball, waiting (and pushing the process foward) for their demographic advantage to inevitably deliver the power of government to them. What happens when they gain control of the machinery of state? How will a Shiite-controlled military respond to Sunni attacks against Shiite targets? Will the response be measured, moderate, and proportional? And when the Shiite-controlled military crosses the line, how will the Sunni population in the country respond? The threat of all-out civil war is very real and frightening. What then for democracy in the Middle East?

Neither does one have to view the Shiites as Iranian stooges to be concerned about Iraq's relationship with Iran, now more so than ever. While I don't share the loathing of Iran held by many in this country, the newly announced alliance between Iran and Syria, following shortly after the election of a pro-Iran government in Iraq could drastically change the balance of power in the Middle East. If the new Iraqi government throws in their lot with Iran and Syria, Iran will have taken a major step up as a regional power and the U.S. will be left scrambling to try and pick up the pieces. Again, rejecting realpolitik does not mean rejecting political reality. And the political reality here is that the occupation of Iraq seems to be producing many undesirable results. There is little cause for rejoicing here, for liberals or anyone else.

Rumsfeld update: Yep, He's Still An Asshole

This Post story on Rumsfeld's appearance before the House Armed Services Committee (full transcript) is one of the funnier things I've read lately. It's entertaining when the Bush administration sends Rumsfeld over to the hill to remind the congresspeople exactly where they stand. Aside from Rumsfeld's stubborn refusals and amusing one-liners, I found this question interesting in light of our recent discussions:

REYES: Thank you, Mr. Chairman.

And, Mr. Secretary and General, thank you for being here with us this morning.

I have a question for each one of you, but the first one, Mr. Secretary, deals with what I think fits under the category of where the system does not work. And it concerns the U.S. pilots that filed a lawsuit -- as this was reported in the L.A. Times on the 15th of this month, where they filed a lawsuit against Iraq for compensation.

REYES: They won their case, were awarded and now the administration is taking a position that this should be dismissed.

The irony -- there are a couple of ironies. One of them is that some of these pilots were tortured in the same Abu Ghraib prison where prisoners were abused by our troops.

And the article quotes that, Mr. Secretary, you're in favor of awarding compensation to Iraqi prisoners who were abused by U.S. military at this prison and at the same time our own pilots that have won a court case are now being denied the same kind of compensation.

I was wondering, do you have any comment on that?

RUMSFELD: Congressman, I don't. It's a matter that the Department of Justice handles for the United States government, not something the Department of Defense does.

Doesn't Anyone in the Pentagon Watch Movies?

The NYT has this article describing the U.S. Military's plan to convert its armed forces to robots, imposing an additional 20 percent on the military budget, excluding war. Some snipits:

Military planners say robot soldiers will think, see and react increasingly like humans. In the beginning, they will be remote-controlled, looking and acting like lethal toy trucks. As the technology develops, they may take many shapes. And as their intelligence grows, so will their autonomy.

Despite the obstacles, Congress ordered in 2000 that a third of the ground vehicles and a third of deep-strike aircraft in the military must become robotic within a decade. If that mandate is to be met, the United States will spend many billions of dollars on military robots by 2010.

"The lawyers tell me there are no prohibitions against robots making life-or-death decisions," said Mr. Johnson, who leads robotics efforts at the Joint Forces Command research center in Suffolk, Va. "I have been asked what happens if the robot destroys a school bus rather than a tank parked nearby. We will not entrust a robot with that decision until we are confident they can make it."

"As machines become more intelligent, people will let machines make more of their decisions for them," Mr. Joy wrote recently in Wired magazine. "Eventually a stage may be reached at which the decisions necessary to keep the system running will be so complex that human beings will be incapable of making them intelligently. At that stage, the machines will be in effective control."

Seriously, what could go wrong?

Reason Magazine Interviews Neal Stephenson

Stranger Than Fiction

All hell is breaking loose on liberal blogs today as details are being unearthed on a supposed reporter named Jeff Gannon. There are a gazillion threads and comments, and it's hard to piece it all together, but I gather that:

a) Gannon (likely an alias for Jim Guckert) has been acting as a reporter in the Washington press corp for the past 6 months or so, and as far as I can tell nobody had ever heard of him before that,
b) Gannon was a reporter in the employ of Talon News, a right-wing activist quasi-news organization and is essentially a political operative,
c) Gannon is well connected to the administration and gets preferential treatment at White House press conferences, which he uses to serve up cheesy softball questions (such as the 'how will you work with people who are divorced from reality' question at Bush's recent press conference),
d) Gannon was subpoenaed in connection with the Valerie Plame case, and the Kossacks believe that he was used by the White House as part of their misdirection damage control operations after Novak's famous column,
e) Gannon is somehow connected with a number of gay military escort sites (because this story just needed more absurdity).
f) as of today, Jeff Gannon has quit his job and will "return to the private life".

That's some wierd shit...

Torture Just Ain't What It Used To Be

Slate has this article entitled, "The Plain Meaning of Torture? Literary deconstruction and the Bush administration's legal reasoning." I recommend it (although I have to admit I have never heard the phrase, "PMR" before).

Partisanship at its Worst

The two hot topics these days, Social Security and the budget proposal, serve to illustrate the crippling partisanship gripping the federal government. There are real problems to be addressed, but both the Bush administration proposals and the Democratic responses are geared almost entirely towards partisan posturing with no apparent concern about results.

Social Security is not in a good state. There really should not be a great dispute about this. It is not an urgent crisis, but neither is everything fine and dandy. The real onset of problems is still years away, but this would be a great time where we could make relatively painless adjustments to get things back on a sound footing before things get too far out of whack. Unfortunately the Bush proposal for private accounts, while interesting, does not really appear to address the real problems. The issue of whether this system should be a pay as you go social welfare program or a government-supported private investment program is a good philosophical question. But for now the immediate problem is that future outlays exceed income. The basic issue is whether we will reduce benefits or increase revenues or some combination of the two. Meanwhile, Democrats, who until recently were willing to discuss and consider this issue, are now locked into deep denial that there is a problem at all. This is a silly tactic when there is, and for some time has been, a powerful public perception that there is a real Social Security problem. At this stage in the game, denial comes off as disingenuous and out of touch. And while both sides are brawling over this on the public stage, nobody is talking about the much larger problem that looms in Medicare.

Then comes the budget proposal which takes the shocking step of reducing 1% of a third of federal spending. We're running record deficits here, such a minor reduction in spending should not be a big deal. Unfortunately these cuts have been precision targeted to produce peak outrage among Democrats. I read somewhere that last year's budget proposed cutting 65 programs, only 5 which actually ended up being cut. Both sides understand how this game is played. The administration wants to come out and say they tried to cut spending, but were obstructed by congress. Congress wants to say that Bush tried to kill all their state's pet programs, but they valiantly save them from the axe.

The disheartening thing is that our long-term budget outlook (including the Social Security and Medicare impacts on the same) is a critical problem, one that I think should be the top priority for the federal government. It's sad to see so much effort spent by politicians, the press, and the public fighting over these issues when it all amounts to sound and fury, accomplishing nothing. And when everyone is exhausted from the fight, these issues will be returned, unresolved, to the back burner to simmer away until they explode into an all-out crisis that will threaten to crash the dollar and destroy the U.S. economy.

The Rummy Returns

Oh, silly Rumsfeld. This is straight from the DOD's official transcript:

Journalist: The budget suggests that -- the budget shows that Army spending is going down by $300 million in fiscal --
Rumsfeld: Which, as you know, is not the case.
Journalist: Well, that's what I see.
Rumsfeld: Yeah, I should have mentioned that.... The only way you can look at this budget is to look at the supplementals with it, and it would be a misunderstanding of the situation to come to the conclusion that you pretended you had come to. But of course you did not, being as knowledgeable as you are.
Journalist: Well, are you hiding -- are you -- are they, in fact, hiding noncombat costs in the supplemental --
Rumsfeld: No, of course not.
Journalist: -- by accelerating here?
Rumsfeld: No, that would be wrong -- (laughter) -- and we wouldn't do that.

The New General

Now that the other contenders have dropped out, it's all but official.

David Kay: Here We Go Again

In the Washington Post, former top weapons inspector in Iraq David Kay writes that the current posture towards Iran looks strikingly similar to the path we travelled to Iraq. Kay urges that we apply the lessons learned in Iraq, and gives a good accounting of a number of those lessons. Acknowledging mistakes and attempting to learn from them seems to be a rare and noteworthy act in the modern political environment...

Looking At the Long-Term

Fresh off his trip to Africa, Russ Feingold wrote a column for CS Monitor on America's failure to engage Muslim nations. He notes that many Muslim nations face a youth bulge in their demographics that presents both an opportunity and a threat. If we fail to engage them, our opponents will be all too happy to fill the void. Also on CS Monitor today is a column on the painfully slow, but still noteworthy progress of the African Union. The challenges face by the AU are many, and any progress is good news. The Western reaction to Darfur has certainly highlighted for Africans exactly how much they can depend on the West for help.

Re: What Next for Guantanamo

The Washington Post has an editorial that is a reasonable synthesis of Dahlia Lithwick's analysis from yesterday, and my remarks of Jan 21 on Judge Bork's WaPo column. The courts are not the best place to be figuring these things out, but as long as the administration fails to engage Congress on them, there's not much alternative.

Blogs and Journalism

There's an interesting case afoot that will bring to the fore the ongoing debate about the journalistic value of blogging. Apple has filed suit against a Mac fan blog for divulging trade secrets. The proprietor, Nick dePlume (likely an alias), is likely to claim First Amendment protections as a journalist. Some discussion on slashdot here and here, and a CS Monitor story here. It's an interesting question, and I would tend to think that the term "blog" ought not to have anything to do with the result. The variation in scope, purpose, audience, and impact among blogs is so great as to defy any sensible unified treatment. It's hard to argue that the top tier of bloggers (Powerline, Talking Points, etc) don't serve functions that would typically be equated with journalism. Bloggers who use their blog as a personal diary would likely not qualify for the same treatment.

What Next for Guantanamo?

Dahlia Lithwick on Slate contrasts yesterday's ruling with another district court ruling by Judge Richard Leon whose ruling ran almost completely contrary with Judge Green's In re Guantanamo Detainee Cases decision. What fun for the appellate courts...

For All You Pirates Out There -- Argh, Matey!

A post on Slashdot yesterday took notice of this well written article in Sunday's NYT about the growing number of television programs available for download, thanks in large part to technologies like BitTorrent. The story quotes several media execs who are aware of this trend and are trying to avoid, as the story puts it, "the disruptive fury that sideswiped the music industry."

I am happy to learn the television industry is taking this threat seriously and considering proposals that would make television-viewing more flexible:

Mr. Poltrack of CBS said that according to his network's research, a large number of viewers would welcome the chance to pay $1 to watch each television show, if they could do it on their own schedule and with the ability to skip commercials. With commercials, they'd be willing to pay 50 cents. And because the average viewer sees only half of a show's episodes, he said, this on-demand viewing won't hurt the regular showing.

In my view, the faster the media companies bring ideas like this to the market, the better. They could even take advantage of BitTorrent's filesharing principles and reduce the cost for providing online content. I hope they avoid the pitfalls that snagged the music industry, like placing too many restrictions on use and attempting subscriber fees.

Back to the Drawing Board

There's Big News in the courts today as district court judge Joyce Hens Green ruled that the special military trials being given to the Guantanamo prisoners are not good enough. Decision here. Washington Post coverage here. Probability of appeal: 1.

Feingold For President

Salvation for Democrats? Or just another opportunity for the Man to crush my hopes and dreams under his steel-toed boot? Russ Feingold is officially considering a run for the White House in 2008. I'm sure he'd be a long-shot, but he would be The Best President Ever.

We Are teh Bomb Yo!

A couple more site updates. We now have an RSS feed. You can get the link for it here or at the top of the page. Additionally I've added the capability to post summaries with a "read more" link (I made an example of one of the Iraq torture posts below). It's sort of a pain to use (you have to paste CSS code into your post), but I thought it might useful when one of us gets in the mood to write a long diatribe (I've been forewarned we may be getting a manifesto from Henry in the near future). If you want to know how to use it, you can check out the example or shoot me a message.

Update: another new feature: if you view the blog while logged in to blogger there should be a little pencil icon after the by-line of your posts which will allow you to instant edit it. All these cool things you find when poking around the blogger site..

Arab Press Growing Teeth

CS Monitor has a fine story about Al Jazeera and other Arab media outlets successfully shaming Arab governments into contributing aid to tsunami victims. I think it's a key point to note, particularly in light of analysis such as the Deptartment of Defense's Defense Science Board's report on Strategic Communication that I reported on in November. Credibility is currency in the cultural battle for hearts and minds, and stories like this demonstrate that the new independent Arab press has it in spades. The West needs to engage, rather than ridicule, organizations like Al Jazeera. They have what we need. Their opinions and positions ought to be taken seriously.

Important Research

What do monkeys do with monkey currency? They buy monkey porn. Nice. (Credit to slashdot)

Site Update

Just wanted to note a few changes here. The site now allows comments from anyone, and the main page show how many comments there are for each post. Additionally there is now a hit counter so we can see if there's anyone actually reading this other than us (I sort of doubt it). You can see the statistics by clicking on that little square image in the bottom left part of the page.

Close Encounters With the Bush Administration

Last night Ron Suskind (who is a UVA grad) came to Charlottesville and spoke at the Miller Center. There is a Real video of it on the Miller Center web site. It was a packed house (there are a couple of other rooms beside what you see on the film where we were watching on a closed circuit TV). Suskind put on a brilliant performance and detailed his whole experience with the administration, from the time he got an office in the White House for his Karen Hughes story, to his story on John DiIulio (the Mayberry Machiavellis story), to, of course, the book with Paul O'Neill. He is quite an orator and I highly recommend the video, and if you get a chance to see him, I'd highly encourage you to do so.

Liberals for Scalia?

Slate is running an interesting and fairly sensible column suggesting that Scalia replacing Rehnquist as chief justicemight not be a bad thing for liberals.

Re: When the US Government Backs Iraqi Torturers of American POW's

I've got another thought on this. :) Aside from all of the legal arguments raised by the extant cases, I think a normative case can be made on the separation of powers issue that these cases ought to be valid not withstanding whatever impacts they have on foreign relations. In the context of foreign relations these cases represent an effort to internalize costs that were previously externalized. It is unfair to force individuals to suffer grievous harm for the benefit of the nation at large. If the United States places a great value on fostering friendly relations with the nation in question which would be harmed by such judgments, the U.S. can pick up the tab and pay the damages. These costs should be viewed as an investment by government which will yield valuable foreign relations dividends. In doing so they will redistribute the harms from having an intense impact on an unfortunate few to a very small impact on all U.S. citizens. There is a problem with this argument in that, if I recall correctly, the enforcement measure passed by Congress gives teeth to collection on punitive damages, but not to compensatory damages, whereas were my argument valid it should be the other way around. Nonetheless, I like this argument on a generalized basis :).

Re: When the US Government Backs Iraqi Torturers of American POW's

I've got a couple of responses. I apologize for the Congressional record thing. I'm doing my research for this during study breaks (which is a sad comment in itself), and the discontinuity leaves me a bit confused at times as to what I'm actually looking at.

On the issue of official capacity: I had read that as plain English, not realizing it was a term of art. Having read up on the jargon, it still seems difficult to defend. I can't see how these 42 U.S.C. § 1983 distinctions could be sensibly applied to this situation. Are we now charging foreign officials for being unfaithful the U.S. Constitution? Surely the court does not literally intend to enforce § 1983 against foreign officials, but rather to apply the general distinction of official/personal capacity. The cases referenced in Ky v. Graham to illustrate the meaning of official capacity as opposed to personal capacity discuss the distinction in terms of abuse of official powers. The intention is to prevent immunity from applying when an official does not apply the powers of his office in good faith. The point of the Flatow Amendment is to create liability against agents of states whose official policy is terrorism. An official who promotes terrorism within the scope of his office in a state whose policy is the promotion of terrorism is not necessarily (or likely) abusing his office; it is the office itself which is abusive. To limit liability under such a statute to agents who were carrying out terrorist acts in a manner that abused their office would be, sorry to use this word, incoherent. It's a Catch 22. Either the state does not support terrorism, or the official is not abusing his powers, either way you're screwed.

And really there's no reason to read the statute this way. Rather than deciding first that Flatow does not offer a cause of action against foreign states, then reasoning backwards from there to reinterpret Flatow in a way that would neuter it almost entirely, why not read it in a plain-meaning fashion, and infer whether or not a cause of action is offered against foreign states? It seems necessary for Flatow to serve any purpose that it create a valid cause of action against a foreign officer who, acting in good faith with respect to his office, took some action to promote terrorism against American citizens. If this is true, then based on reasoning offered by the United States and accepted by the court in Cicipio that an action against an official acting in their official capacity is equivalent to an action against the entity, we can infer that there is a valid cause of action against a foreign state.

Additionally, I am not ready to dismiss the intent of Congress so quickly either. The issue is not that these cases occurred and Congress stood by and did nothing. Theses cases occurred, and Congress, recognizing that barriers still prevented the plaintiffs in them from recovering damages against the foreign state defendants, passed new legislation to facilitate that recovery. Get a look at this congressional research report detailing Congress' efforts through the Victims of Trafficking and Violence Protection Act of 2000 to force the United States to pay up on a number of cases against foreign governments (including Cicipio!) out of funds that the U.S. had frozen from those countries. Flatow provided the cause of action for all these cases (in fact, the document remarks of Flatow: "Later in 1996 Congress enacted a counterpart statute giving injured parties or their legal representatives a cause of action for suits against terrorist states"). In the face of this legislation, I don't see how you could possibly argue that Congress did not intend Flatow to provide a cause of action against state sponsors of terrorism.

So anyway, I am still rather of the opinion that Cicipio (and thereby Acree) was botched.

Re: When the US Government Backs Iraqi Torturers of American POWs

Here are some additional comments in response to your recent post. I will save for a later post an elaboration on the issue of whether state law claims could serve as the basis for liability.

The D.C. Circuit has already considered, in Acree, the Government's argument that the Emergency Wartime Supplemental Appropriations Act removes Iraq from the reach of FSIA's terrorism exception, and it concluded, "While it is a close question, we agree with appellees that 28 U.S.C. § 1605(a)(7) is not a provision of law that falls within the scope of" that Act. 370 F.3d at 48. I'm sure that will not be the last we hear of that argument, but at least it's resolved in the D.C. Circuit. As Professor Moore observes in his petition for certiorari (available on Westlaw), it is unlikely there will be much action on these issues in other circuits because the venue provision of the FSIA favors the District of Columbia. See 28 U.S.C. § 1391(f).

I agree there are parts of Cicippio with strained reasoning (and I submit the same goes for Acree), though I disagree the opinion is "incoherent." That is a pejorative I prefer to save for the most appalling opinions (like the remedial majority's Booker opinion). And although the text of 28 U.S.C. § 1606 resolves the matter for me, it is certainly not conclusive on the issue of congressional intent. For instance, one could make a strong argument that the familiar doctrine of expressio unius est exclusio alterius (the expression of one thing implies the exclusion of another) applies--it seems at least plausible from the fact that the Flatow Amendment made officials, employees, and agents of foreign states liable that the Congress purposefully omitted a foreign state from the list.

As for your resort to legislative history, I note that beside its inherently dubious value, the portion you quote suggests to me not that the Congress intended to create a cause of action against a foreign state, as you suggest, but that it wanted to be sure someone with a viable claim against a foreign state could bring that claim in federal court, notwithstanding foreign sovereign immunity. Now, I humbly admit my skills of research into legislative history are not well-honed, and please correct me if I am wrong, but it appears you are citing a report that has nothing to do with the Flatow Amendment. Rather, you cite a portion of a House Conference report addressing the Antiterrorism and Effective Death Penalty Act (AEDPA), Pub. L. 104-132 (1996). The section from which you quote, section 221, is entitled "jurisdiction for lawsuits against foreign states"; in that section the Congress added the exception to immunity now found at 28 U.S.C. § 1605(a)(7). See H.R. Conf. Rep. 104-518 (Apr. 15, 1996).

~> Read More!
The Congress enacted the Flatow Amendment in title V, section 589, as part of the omnibus appropriations bill for fiscal year 1997, Pub. L. 104-208 (1996). For what little it's worth, the Committee report to that bill may be found at H.R. Conf. Rep. 104-863 (Sept. 28, 1996). The only portion I found addressing the liability provision states as follows:

The conference agreement inserts language expanding the scope of monetary damage awards available to American victims of international terrorism. The conferees intend that this section shall apply to cases pending upon enactment of this Act.

Not very helpful, in my opinion.

You suggest that something can be gleaned from the fact that the Congress has failed to act despite that numerous cases have been successfully brought against foreign state defendants. I disagree. I hesitate to point out the obvious--the Congress fails to act more often than it actually does something, and in any event acquiescence of a later Congress is not a reliable indicator of the intent of an earlier one. Further, neither the D.C. Circuit nor any other circuit to my knowledge has affirmed an order holding a foreign state liable under the Flatow Amendment. And, contrary to popular opinion, district courts do not create precedent.

Finally, it is perfectly logical that the Congress intended to impose personal liability on an official, employee, or agent acting in his official capacity, for that is the same scheme the Congress established under 42 U.S.C. § 1983. That section makes an individual liable in his individual capacity for damages resulting from an action he takes under color of state law that deprives a citizen of a constitutional right. See Kentucky v. Graham, 473 U.S. 159, 165-66 (1985). Section 1983 suits for damages may be brought directly against a municipality, but not against a State unless it has waived its sovereign immunity. To be sure, bringing § 1983 into the picture actually supports the ultimate conclusion that the Flatow Amendment creates liability of foreign states, because the exceptions to the FSIA remove the barrier of sovereign immunity. I cite that statute, however, to illustrate that it is not unprecedented to hold an individual personally liable for an official act.

Saving the Party from Howard Dean

There's an entertaining article by Howard Fineman in Newsweek about the desperate, and so far unsuccessful, efforts of Democratic insiders to prevent Howard Dean from becoming the party chairman. I particularly like the part where they were worried that Dean would "ruin the Democratic brand in Red States." Heaven forbid that, you guys have been doing such a bang-up job there. Bill Clinton went so far as to try and reenlist Terry McAuliffe, a move which, I fear, has forever ruined Clinton's credibility as far as I'm concerned.

Re: When the US Government Backs Iraqi Torturers of American POWs

I am convinced by your arguments on the state/federal cause of action issue. There is a nice law review note that summarizes developments in FSIA terrorist claims through the last decade, and including Acree and Cicipio: Jeewon Kim, Making State Sponsors of Terrorism Pay: A Separation of Powers Discourse Under the Foreign Sovereign Immunities Act, 22 Berkeley J. Int'l L. 513 (2004). As noted there, more than 20 judgments have been handed down against state defendants since 1996, although few plaintiffs have been able to recover any of the damages awarded them. In 2000, Congress passed the Victims of Trafficking and Violence Protection Act, which was to allow some of these plaintiffs to be paid from frozen assets held by the United States. Congress also apparently passed legislation to allow plaintiffs in these cases to be able to attach the property of foreign states, but Clinton vetoed it. There is also some discussion of the additional complications that would arise in the suit should it be remanded with a go ahead for intervention by the Feds. They plan to argue that the Emergency Wartime Supplemental Appropriations Act officially removes Iraq from all the terrorist state sponsors lists and makes it no longer a valid target of an FSIA claim.

In any case, the Cicipio ruling seems fairly incoherent. The section you quote ("the foreign state shall be liable in the same manner and to the same extent...") provides ample opportunity for a textualist interpretation of the statute to allow for an action against a state. Moreover, the intent of Congress does not seem terribly difficult to ascertain. The Flatow Amendment was titled the Civil Liabilities for Acts of State Sponsored Terrorism Act, and the relevant Congressional committee report reads:

"This subtitle provides that nations designated as state sponsors of terrorism under section 6(j) of the Export Administration Act of 1979 will be amenable to suit in U.S. courts for terrorist acts. It permits U.S. federal courts to hear claims seeking money damages for personal injury or death against such nations".

104 H. Rpt. 518

Additionally, numerous cases have already occurred where foreign states have been sued under the act, and not only has Congress not acted to stop this from occurring, they have endeavored through legislation to help the plaintiffs recover from the foreign state defendants.

Finally, the court's interpretation that "the cause of action is limited to claims against those officials in their individual, as opposed to their official, capacities" is awfully difficult to reconcile with the language of the statute which states that an "official ... of a foreign state ... while acting within the scope of his or her office ... shall be liable".

I think it's interesting that they could make a separation of power issue out of this, but don't. Moreover, if they had just made the ruling to allow the Feds to intervene and remanded it, it probably would have become a separation of powers issue. It just seems odd that they fixated on this issue, which doesn't appear to have a lot of support.

I wonder if Dave has something to say on all this...?

Not a Prelude?

I had to laugh at the title of this CS Monitor column: Bush speech not a 'prelude to bellicose foreign policy', subtitled Bush Sr., others, say inaugural speech not start of 'new militarism'. Well, obviously it's not a prelude, we're already four years into the bellicose foreign policy. As an unnamed White House official states in the article "it's not a discontinuity ... but an acceleration."

Re: When the US Government Backs Iraqi Torturers of American POWs

The causes of action you list are state law claims. That is, the source of law is the power of the State. A State may regulate an individual's conduct occurring within its boundaries, and to some extent it may regulate conduct occuring outside its boundaries so long as it can demonstrate the conduct directly affects its citizens. A State may not, however, regulate the conduct of foreign states because "power over external affairs is not shared by the States; it is vested in the national government exclusively." United States v. Pink, 315 U.S. 203, 233 (1942); see also U.S. Const. art. I, § 8, cl. 10 ("The Congress shall have Power ... To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations"); Zschernig v. Miller, 389 U.S. 429, 441 (1968) (discussing what has been dubbed the doctrine of "dormant foreign affairs preeemption.")

In Acree v. Republic of Iraq, 370 F.3d 41 (D.C. Cir. 2004), American plaintiffs brought an action against a foreign state, one of its agencies, and a foreign official in his official (rather than personal) capacity. The D.C. Circuit agreed with the district court that it had jurisdiction over the case, id. at 58, but disagreed that the plaintiffs stated a cause of action for which relief could be granted. The court ruled that the plaintiffs failed to identify a federal law the defendants allegedly broke. Id. at 59-60. Contrary to your suggestion, Joe, the source of law could not have been state common law because, as discussed above, the State does not have authority to regulate the conduct of foreign states. And "generic common law cannot be the source of a federal cause of action. ... Rather, as in any case, a plaintiff proceeding under the [Foreign Sovereign Immunities Act] must identify a particular cause of action arising out of a specific source of law." Id. at 59.

The district court ruled that the Flatow Amendment provided the cause of action. Codified as a note to 28 U.S.C. § 1605, the Flatow Amendment provides in relevant part:

An official, employee, or agent of a foreign state designated as a state sponsor of terrorism ... while acting within the scope of his or her office, employment, or agency shall be liable to a United States national ... for personal injury or death caused by acts of that official, employee, or agent.

In Cicippio-Puleo v. Islamic Republic of Iran, 353 F.3d 1024, 1033 (2004), the D.C. Circuit ruled that "the Flatow Amendment only provides a private right of action against officials, employees, and agents of a foreign state, not against the state itself." Further, an action under the Flatow Amendment must be against an official, employee, or agent in his individual (or personal) capacity, because official-capacity suits are, in substance, "a claim against the government itself." Id. at 1034.

If there is a flaw in reasoning anywhere, it must be in the Cicippio-Puleo decision. It is entirely reasonable to believe the Congress intended to hold foreign states liable for acts of torture. Consider the following portion of 28 U.S.C. § 1606, a provision of the FSIA the court neglects to mention in Cicippio-Puleo:

As to any claim for relief with respect to which a foreign state is not entitled to immunity unde section 1605 or 1607 of this chapter, the foreign state shall be liable in the same manner and to the same extent as a private individual under like circumstances.

The other appellate courts and the Supreme Court may disagree with the D.C. Circuit's conclusion that the Flatow Amendment does not provide a cause of action against foreign states, but until that happens there appears to be no other basis under which a citizen plaintiff may sue a foreign state for acts of torture.

In sum, a plaintiff suing a foreign state must allege a federal claim because the authority of the State does not reach that far into foreign affairs. One might suggest that is a subject matter limitation, though I believe it would be more accurate to characterize the limitation as one of federalism. There is no "generic federal common law" as such, so a plaintiff must identify some particular act of Congress or a provision of the Constitution that prohibits the alleged conduct and that provides the plaintiff the right to recover in federal court. After Cicippio-Puleo, it seems unlikely that a plaintiff can use the Flatow Amendment as the basis for liability against a foreign state.

Hope that clarifies things. I look forward to reading your response.

China News

Former Communist Party chief Zhao Ziyang passed away.

Re: When the US Government Backs Iraqi Torturers of American POW's

Well, the cause of action seems obvious enough; these people were heinously tortured and have claims for personal injury, battery, intentional infliction of emotional harm, etc. The question more seems to be against whom the claim is valid and whether sovereign immunity applies. The decision makes some reference to not having Federal Claims, which I don't really understand, but seems to imply that there must be a statutory claim. Is this a subject matter limitation? In the context of claim between a U.S. citizen and a foreign nation, the federal court should have jurisdiction regardless of the nature of the claim, I think. The statutes referenced in the case waive sovereign immunity for these sorts of claims against nations on some government list of terrorist sponsors, which I imagine Iraq was on. It's not clear to me, nor was it, I think, clear to Prof. Moore, what exactly the court's objection is. Moreover, Moore was rather incensed that the court killed his case on an issue, which not only didn't make a lot of sense, but had been not raised by any party in either the original trial or the appeal, and based on a ruling they had made in a case that occurred after his original trial and as such was never disputed in that trial. The court suggests that he should have noted this decision prior to appearing for oral arguments and been better prepared to rebut it, and perhaps he made a mistake there. However, I still can't see a whole lot of sense in their ruling. Maybe you can add some clarification?

re: METAL!!!!

Yeah, I saw the Jenna pic posted on a forum with the subtitle: "Hail Satan... er, I mean Dad!!"

Re: When the US Government Backs Iraqi Torturers of American POW's

I do not mean to suggest I agree or disagree with the decision to which Joe alludes (here is a link to the PDF), but I do take issue with Joe's characterization of the reason for the D.C. Circuit's dismissal as a technicality. The troops failed to identify a cause of action -- that is, they failed to explain what law Iraq allegedly broke and what law entitled the troops to recover. Regardless whether that decision was a correct evaluation of law, dismissal for failure to state a claim is not a technicality but goes the very heart of the case.

Re: METAL!!!!

Apparently it runs in the family.

A Small Step In the Right Direction

Iraqi Defense Minister Hazem Sha'alan announced on Al-Jazeera that Ahmed Chalabi will be arrested tomorrow and turned over to Jordan where he was convicted in absentia of bank fraud in 1992.

METAL!!!!

When the US Government Backs Iraqi Torturers of American POW's

I don't recall if I mentioned this previously, but I went to a lunch last fall with a UVA professor, John Moore, who is involved in a case to try and recover damages from Iraq for the torture of American POW's during the first Gulf War. The case was going along swimmingly until after Abu Ghraib, when the DoJ decided to try and torpedo the case. The district court had ruled in favor of the POW's, but the Justice Department appealed the decision to the D.C. Court of Appeals, where the case was dismissed on a technicality. The POW's are appealing this decision in turn, meanwhile Moore argues his case in a Slate column.

Leadership By Default

I was rather struck by this Washington Post column by Robert Bork and David Rivkin arguing that the court should stop managing the War on Terror. On the one hand, their arguments are entirely plausible. The Hamdi case serves as a perfect example. The court knew that something needed to be done, but they could hardly create a detailed policy directive as to how to treat enemy combatants. So they issued some vague requirements and left the government to figure out what the court was after through trial and error. It is hardly an ideal solution.

On the other hand, for the court to take a hands-off approach as Bork and Rivkin suggest would be even more absurd. The problem here is that Congress apparently doesn't give a crap about the War on Terror, and if the executive has an actual plan, they refuse to say a word as to what they are doing or why. The courts shouldn't be in a leadership position on this, but they have no choice. Nobody else will do it.

If the Administration would explain what exactly it is they're doing, their rationale, what sort of limits they place on themselves, and how they're enforcing those limits, then the courts would have a sound basis to grant them broad discretion. However, we have none of that, and instead have Abu Ghraib, a proposal for a jurisdiction-free-zone in Cuba, documents suggesting that the Geneva Conventions are quaint and torture is ok. How could the courts not intervene?

Bork and Rivkin attempt to write off these various indiscretions as abuses that "inevitably occur in war". I don't buy it. This morning I attended a presentation by reporter Donovan Webster, who recently wrote an article for Vanity Fair called "The Man In the Hood" (the article is not online, but there's a brief summary here, and an Aljazeera article about it here). Webster visited Iraq twice last fall and conducted 60 hours of interviews with former Iraqi detainees, visited detention sites, and spoke with the military personnel there. Webster contends (fairly convincingly) that the abuses famously exposed at Abu Ghraib were widespread, and continue to this day, and that no serious changes resulted from the initial round of publicity. This is an administration in desperate need of adult supervision, and it would be a horrific abdication for the courts to back down.

Re: Something to Blog

1. The liver.

2. It would be difficult to say how many times a person might be awoken (less than five events per hour is normal), but there are reported instances where a person suffered hundreds of sleep apnea events in one night. It seems the duration of the apnea is equally or more threatening than the frequency.

The Boys Weekend Journal

1. What is the heaviest internal organ in the human body?

2. How many times a night might a person suffering from sleep apnea be forced awake to resume breathing?

Just feel like blogging something.

What A Keen Insight That Man Has

From a Washington Post interview:

Q: Why do you think bin Laden has not been caught?

President Bush: Because he's hiding.

DOD Gets Defensive

Read this press statement put out by Pentagon spokesperson Larry DiRita. Seems like Hersh hit a sore spot.

Expanded Role of Military in Covert Operations, On To Iran

Seymour Hersh of the New Yorker has this story on Secretary Rumsfeld's effort to locate all covert operational authority within the DOD. It seems Secretary Rumsfeld has been lobbying for such a structural change for over two years, and it looks like the "accountability moment" (WP) of the 2004 presidential election will be used to further advance neocon policy. According to Hersh, Stephen Cambone and William G. Boykin, both prominent neocons within the administration, will be part of the chain of command for the new commando operations. Hersh reports that the administration has been conducting secret reconnaissance missions inside Iran since last summer, and the Pentagon is updating its military war plan against Iran, now that a full-scale invasion force could enter through Iraq. Hersh claims a former high-level intelligence official told him, "It’s not if we’re going to do anything against Iran. They’re doing it.” Apparently covert operations have also been authorized in Algeria, Sudan, Yemen, Syria, Malaysia, and Tunisia.

Of the New Yorker article written by the same journalist who broke the Abu Graib story, White House Communications Director Dan Bartlett said, "I think it's riddled with inaccuracies, and I don't believe that some of the conclusions he's drawing are based on fact."

Reelection equals full approval on Iraq?

Around the same time that President Bush conceded poor judgment on some of his first term statements (see previous post), he has made a curiously liberal interpretation of his reelection. Below is part of an interview with the Washington Post:

The Post: In Iraq, there's been a steady stream of surprises. We weren't welcomed as liberators, as Vice President Cheney had talked about. We haven't found the weapons of mass destruction as predicted. The postwar process hasn't gone as well as some had hoped. Why hasn't anyone been held accountable, either through firings or demotions, for what some people see as mistakes or misjudgments?

THE PRESIDENT: Well, we had an accountability moment, and that's called the 2004 election. And the American people listened to different assessments made about what was taking place in Iraq, and they looked at the two candidates, and chose me, for which I'm grateful.

Somehow, Bush equates his reelection with a full approval of his Iraq policy and implies that no other accountability measures should be taken. Yet, in the most recent poll regarding his Iraq policy that I could find, the majority of Americans stated that the conflict was not worth fighting given its cost. This, and other findings from the poll, hardly give one the impression that Americans completely approve of the Iraq policy. I guess the President's concessions to reality only go so far...

Bush: 'Bring It On' Not the Best Idea

A year and a half later, after challenging Iraqi resistance fighters to "bring it on", George Bush has admitted that he didn't really think that one through. I have to wonder whether this admission was at all impacted by this recently released English-language propaganda video, at the end of which the narrator taunts, "You have asked us to ‘Bring it on’, and so have we. Like never expected. Have you another challenge?” The video (transcript here) is really an impressive bit of work, both technically and in message. The music is a bit overblown, and the footage is at times quite distracting from the narration, but the footage itself is impressive and it's edited together well. The script, clearly tailored to a Western audience, paints the resistance as secular, confident, magnanimous, and multilateral. The source and authenticity of the video are unknown, but it has been widely circulated and reported.

Bring On the Death Squads

Because nothing says Freedom's on the March like roving bands of pro-US assassins. These guys were really thinking ahead when they put John Negroponte in Iraq...

Fare Thee Well, Crossfire

Well, howdy-do, turns out that new CNN President Jonathan Klein agrees with Jon Stewart and has decided to scrap Crossfire, saying "I think he made a good point about the noise level of these types of shows, which does nothing to illuminate the issues of the day". I wonder if we'll hear anything about this on the Daily Show... :)

Delaying the Elections

Former President of the Iraqi Governing Council, Adnan Pachachi has a column in the Washington Post urging that the Iraqi elections be delayed. Pachachi acknowledges that such a delay would be a victory for the insurgents, but feels that it is better for the nation's long term stability to let the insurgents win round one than to put in power a government who most Iraqis will consider illegitimate. I agree with his reasoning on this point, but underlying the decision to delay is an assumption that if the election is held later on security (and thereby voter turnout) will be better. I see nothing to justify that assumption, and, in fact, the insurgents may be emboldened by their success at having forced a delay in the first case.

Tsunami

The scale of destruction by the recent earthquake/tsunami in southeast Asia is quite mindboggling. Death toll estimates continue to climb, now placed at over 25,000 people. The Wash. Post has a graphic that illustrates the path and the toll of the tsunami quite well. The question has of course arisen: was the death toll preventable? The Pacific Ocean countries have in place the Tsunami Warning System in the Pacific, which is capable of delivering information regarding tsunami potential in as little as 20 minutes after an earthquake. Such a system obviously needs to be set up/extended in the Indian Ocean area and elsewhere.

Also, if anyone out there is interested in donating to relief agencies involved with this crisis, CSM has a nice listing here.

Blog-o-riffic!

Larry Lessig posted a notice on his blog of a brand new blog that he helped set up, featuring weekly discussions between two University of Chicago professors: 7th Circuit judge Richard Posner, and Nobel prize-winning economist Gary Becker. This week's inaugural topic: preventive war.

Re: You Spent $10b for What?!

Yeah, and if that wasn't enough, the original projected cost for the satellite was $5 billion. What's another $5 billion among friends?

You Spent $10b for What?!

Apparently a full quarter of the proposed $40 billion intelligence budget is for a stealth spy satellite to be launched sometime in the "next five years". Did we need this? Did someone not get these guys the memo that we've got a half a trillion dollar budget deficit? Says the CIA (paraphrased): it's classified, we can't talk about it. If you want $10b for a fricken satellite, I think you'd be obligated to at least explain why you'd need such a thing. This isn't lunch money we're talking about here...

When the Truth Just Isn't Good Enough

The Washington Post has a great two-part account of the death of Pat Tillman (part I, part II). It was not quite the way the army told it back in April... What's sad is that Tillman's actions were no less courageous than previously made out, and the army lied about what happened, not in order to make Tillman look better, but to cover up their own failure. It's also sad that Tillman and Jessica Lynch were the two most widely told and celebrated individual stories of the conflicts in Iraq and Afghanistan, and both were apparently fallacious propaganda tales.

Teaching Family Values

The Washington Post has an editorial on abstinence only sex ed programs, based mostly on data provided by Rep. Henry Waxman. The editorial criticizes these programs for presenting students with false and misleading information. I just had to post this particular example:

Another offers a fable of a pushy princess who's dumped for a village maiden: "Moral of the story: Occasional suggestions and assistance may be alright, but too much of it will lessen a man's confidence or even turn him away from his princess."

...now get back in that kitchen and bake me a pie!

Sweet Logic and Reason!

Amen and Hallelujah! The Deptartment of Defense's Defense Science Board released a report last week on Strategic Communication that contains some of the most incisive and cogent analysis of the War on Terror produced by any part of the government to date. The report is 111 pages long and is a remarkable work. The Christian Science Monitor has a roundup of coverage, you can find the actual report here. I have to restrain myself from blockquoting the entire thing, but here are some tasty excerpts (and these are from the beginning of the paper, I haven't finished reading it yet):

"To succeed, we must understand the United States is engaged in a generational and global struggle about ideas, not a war between the West and Islam. It is more than a war against the tactic of terrorism. We must think in terms of global networks, both government and non-government. If we continue to concentrate primarily on states (...), we will fail."

-------------------

"Policies, diplomacy, military operations, and strategic communication should not be managed separately. Good strategic communication cannot build support for policies viewed unfavorably by large populations. Nor can the most carefully crafted messages, themes, and words persuade when the messenger lacks credibility and underlying message authority."

-------------------

"A year and a half after going to war in Iraq, Arab/Muslim anger has intensified. Data from Zogby International in July 2004, for example, show that the U.S. is viewed unfavorably by overwhelming majorities in Egypt (98 percent), Saudi Arabia (94 percent), Morocco (88 percent), and Jordan (78 percent). The war has increased mistrust of America in Europe, weakened support for the war on terrorism, and undermined U.S. credibility worldwide. ... Negative attitudes and the conditions that create them are the underlying sources of threats to America’s national security and reduced ability to leverage diplomatic
opportunities."

-------------------

"There is consensus in these reports that U.S. public diplomacy is in crisis. Missing are strong leadership, strategic direction, adequate coordination, sufficient resources, and a culture of measurement and evaluation. ... The number and depth of these reports indicate widespread concern among influential observers that something must be done about public diplomacy. But so far these concerns have produced no real change. The White House has paid little attention. Congressional actions have been limited to informational hearings and funding for Middle East broadcasting initiatives, Radio Sawa and Al Hurra.

-------------------

"Frames simplify and help to communicate complex events. But like the Cold War frame, the terrorism frame marginalizes other significant issues and problems... Often the terrorism frame directs attention to tactics not strategy. The focus is more on capturing and killing terrorists than attitudinal, political, and economic forces that are the underlying source of threats and opportunities in national security.

-------------------

"Information saturation means attention, not information, becomes a scarce resource. Power flows to credible messengers. Asymmetrical credibility matters. What's around information is critical. Reputations count. Brands are important. Editors, filters, and cue givers are influential. Fifty years ago political struggles were about the ability to control and transmit scarce information. Today, political struggles are about the creation and destruction of credibility."

WOW.

Update: Holy crap, IT GETS BETTER. I'm reading Chapter 2 - The New Strategic Environment, and my jaw is on the floor. Great Scott, man, who wrote this thing?!!

More Questions on the Dollar Decline

There is a fascinating article on Asia Times by W Joseph Stroupe predicting doom for the dollar. I'm not sure who the guy is, and his web site looks pretty sketchy. But he throws out a ton of data, I just wish he would have cited his sources. Some of the interesting bits apparently come from this Japan Times story, but even there are only cited back to Morgan Stanley analyst Stephen Roach. So, while I take little of this at face value, the article suggests a number of interesting points to investigate.

• Stroupe asserts that the Fed is printing $1.5 trillion per year. This seems like an absurd amount of money. Is it true? How much does this vary from traditional levels?
  
• Stroupe adds $44 trillion in obligations to Social Security, Medicare, Medicaid, and other government spending to the existing $7 trillion national debt to come up with a "total national debt" of $51 trillion. He cites this number to Fortune magazine. I posted a story here some time back about a treasury department study (initiated by Paul O'Neill, before he got the boot) which found that the US had $44 trillion in unfunded obligations over the next four decades or so, which is probably where the $44 trillion comes from. This is a frightening number, but it strikes me as unfair to count long term obligations directly as existing debt.
  
• The article states that including off-budget items the current federal deficit is nearly $1 trillion per year. That sounds high to me. My impression has been that this number would be somewhere in the $500-700 billion area.
  
• Mentions heavy investment ($180 trillion) in derivatives as unstable investments. I have no idea what he's talking about here, but I'd like to find out.
  
• The article states that US consumer debt is $8 trillion. I was searching for this number myself a couple weeks back, without success. I'm curious where he got it.. Also what is the level of US commercial and business debt?
  
• Then there's the quote from Stephen Roach stating that the US currently has $38 trillion in debts. What exactly is being counted in this number?
  
• The article states that Warren Buffet has mostly pulled out of the US stock market. I know that he published an article a couple years back explaining, in great depth, why he was for the first time investing outside the US, citing many of these concerns about debt and the trade deficit. But has he really pulled out all of his US investments?
  
• One of the best parts of the article was the discussion of Russian economic policy. Here he talks about the possibility (which has been discussed here before) that the global oil market may shift from dollars to euros, with disatrous effects on the value of the dollar. Stroupe makes assertions about statements by Vladimir Putin hinting that this change is imminent. I should certainly like to see those statements. He also asserts that Russia has substantially shifted their currency reserves out of dollars. It would also be nice to verify that..
  

Anyway.. there are some very powerful numbers and assertions here, and if this guy is not a complete nut (which it's quite possible he is), disaster may be nearer than I expected.. There are also numbers published in another Asia Times story showing US personal savings as a percentage of income dropping over 15 years from about 7% to 0.2% (again without any cited source). Consumer spending may have kept our economy afloat so far, but that ride looks to be nearing its limit. We live in interesting times...

Update: I went hunting for more info on Stephen Roach's $38 trillion figure, and while I didn't find it, I did find an insightful recent column by Roach analyzing the economic prospects for the Bush administration's second term.

The Body Politic Has Got A Cancer

It's amazing that there's still so much resistance to serious campaign finance reform. The case for spending limits and public financing seems obvious and critical. Particularly when you have a Senator like Fritz Hollings commenting in this Time Magazine interview:

"The body politic has got a cancer of money. I ran in 1998, and I raised $8.5 million. That's about $30,000 a week, each week, every week, for six years. If I missed Christmas and New Year's weeks, I'm $100,000 in the hole. So the race begins the next day [after your election]. We're collecting for six years out. That means we don't work on Monday. We don't work on Friday. I've got to get money, money, money, money. And I only listen to the people who give me money. With the shortage of time and everything else, you've got to listen to the $1,000 givers. I mean, no individual is corrupt, but the body has been corrupted."

"...Money, money. That's got to be excised. I don't have any time for the people. I don't have any time for the Senators. I just got time for money. Hurry up and get the money so I can get on that TV to get re-elected."

And we wonder why they vote on bills without taking the time to read them...

Re: Spending Addicts

I was not surprised at the news Congress was raising the debt ceiling, as that was a necessary consequence of the policies the Bush administration and the Republican Congress agreed to long ago (and it was not the first time in the last four years we had to raise the debt ceiling). What concerns me more is the fatalism with which most politicians approach the spending glut.

The notion that Democrats are the tax-and-spend party should be laid to rest--unless one is making the point that when Democrats spend, at least they have the courtesy of taxing to pay for it.

Michael Kinsey of the Washington Post crunched some numbers a few months back to explode the myth that Democrats are the bigger spending party.

I also came across this graph showing the national debt across presidential terms. I have no idea whether the data is reliable.

Glad to see a post from you, Ryan!

Iranians: Evil, or Smart?

Richard Cohen has a brilliant column on Iran's quest for nukes in the Washington Post. When I say brilliant, what I mean is that he writes what I've been saying since IAEA first started to be concerned about Iran's nuclear facilities :). From Iran's perspective it's the obvious and rational thing to do...

With Arafat Gone, Hamas Ready To Go Political

As the Palestinians prepare for new elections, Hamas plans to run candidates for municipal and legislative positions. This is the best news for the prospects of peace in Israel in a long time...

re: Spending Addicts

By the way, Ryan, nice to have you back! Robert Samuelson has a Washington Post column discussing the possibility of precipitous drop in the dollar. He absurdly dismisses the impact of budget deficits, and focuses purely on the $665b trade deficit (he still ends up with a scenario not so different from those theorized on at Boys' Weekends). When you consider that somewhere around half the $500b budget deficit is being financed by foreign investors (not to mention commercial and private debts), we're dumping nearly a trillion dollars (10% of GDP) onto the global markets each year. That is just unbelievable. Meanwhile, Bush claims he is going to fight for a strong dollar, not surprisingly the currency markets think he's full of shit.

Bad Advice

The Washinton Post has a column on attorney general nominee Alberto Gonzales's work writing execution summaries for review by George Bush when they were in Texas. Author Alan Berlow is not exactly impressed by Gonzales's efforts.

Election Over, We Can Stop Pretending...

...that we care about Sudan. A Washington Post editorial takes the Bush administration to task for "shrugg[ing] its shoulders last week at the genocide". The U.S. led a special meeting of the U.N. security council to a toothless and largely meaningless resolution, then held press conferences to declare victory.

About Scott Castle

Since this came up in an offline conversation today, here's a little background on Scott Castle, former General Counsel for the CPA in Iraq (and former UVA grad). The article, written back in June, also mentions Brett McGurk, who is an adjunct professor at UVA right now, and who was also at the lunch session last week (although he didn't have as much to say).

Spending addicts

I am now convinced that the whole of Congress needs to be admitted to a rehabilitation program for spending addicts. They have just agreed to raise the debt limit for the government by another $800 billion, making the total allowable debt a whopping $8.18 trillion. Meanwhile, Mr. Greenspan is warning that the continuing trade deficit is likely to have dire consequences for the US economy and recommends reducing the federal budget deficit as a key component in stabilizing the economy. Not that his opinion matters; he is only the chairman of the Federal Reserve Board. Interestingly, the Democrats now appear to be taking up the cause of fiscal responsibility in asking for pay-go rules.
Apparently all of this extra spending is necessary to secure the American people in the war against terrorism. It looks like economic security has been left out of the equation.

The Insurgent and the Aid Worker

Slate is running a well-written piece by Owen West and Phillip Carter defending the actions of the now famous marine in Fallujah who executed an apparently defenseless insurgent. Their arguments are sound, and I agree with them that the case for charging and convicting this marine is far from clear. They move on from there to draw comparisons to brutal killing of Margaret Hassan. Again they reach some valid and important conclusions. Margaret Hassan was a noncombatant aid worker. The man shot by the marine appears to have been an insurgent combatant. The insurgents kill indiscriminately, the U.S. takes care to try and limit civilian deaths. The American soldiers are generally honorable. The insurgents are not.

These are good points. And yet I can't help but feel that something is lost in this discussion. The arguments advanced by Carter and West feel very familiar from the context of the Israeli-Palestinian conflict. The Palestinians go out and intentionally kill score of civilians. The Israeli military is only trying to engage militants, and if a few civilians are collaterally killed, well they tried their best to avoid it. But at the end of the day, everybody is just as dead as everybody else. And at the end of the day there are more than twice as many dead Palestinians (approximately half of them noncombatants) as there are Israelis, and orders of magnitude more dead Iraqis than Westerners. When some Israeli kid shoots somebody in self defense who turns out to be a noncombatant, surely his action is more morally defensible than the action of a Palestinian suicide bomber. But who sent a scared 18 year-old into a Palestinian neighborhood armed with the most powerful weaponry money can buy? Can Westerners disavow the impact of widespread slaughter of civilians with the defense that our military personnel try to conduct themselves honorably? Is there no moral culpability for manufacturing a situation where it is highly probable that innocent civilians will be gunned down? And isn't it a bit trite to hold comparisons of the honorable conduct of the world's mightiest military against the conduct of desperate rag-tag insurgents? Honor is a luxury afforded by superior firepower. Did we expect them to line up in formation like a Napoleonic army so that we can massacre them with a single daisy cutter? Of course they use stealth and blend in the population. Of course they like to attack soft targets. How could we have expected otherwise?

None of this is to attempt to draw a conclusion that the Iraqi insurgents are morally equivalent to the U.S. occupiers, or even to the Palestinian militants for that matter. Clearly no good would come of the Iraqi insurgents prevailing against the occupation. The U.S., however ham-handed the effort has been, is really trying to create a functional democracy and improve the lot of Iraqis. Ultimately (not passing judgment on the decision to invade in the first place), the U.S. has the right of this conflict. But that's not my point. The point is that it is foolish to view this conflict and actors in the conflict by falling back on these notions of honorable conduct to justify and defend U.S. actions and to prove our moral superiority. These terms miss the point of what is happening on the ground and wall-paper over decisions which predictably lead to the deaths of many innocent civilians. And it causes us to see events in a distinctly different light than they are seen by Iraqis and other arabs. They are painfully aware of what we are not: that we made the choice to put thousands of scared soldiers with itchy trigger fingers into the places where they live, where they work, where their children go to school. Until we can see things from this perspective we will be forever perplexed by how our actions are being interpreted by the Iraqi public.

This perspective sheer hurts us by leaving the U.S. unable to effectively communicate a meaningful response to Iraqis when an event occurs like the killing in Fallujah. The arguments advanced by West and Carter probably resonate strongly with Americans, but, I think, much less so with Iraqis. What they want to hear is that we understand what a burden it is for them to have all these troops wandering around blowing things up, the checkpoints, the nighttime raids, the airstrikes, the mass detentions. They want to know that we feel their pain and are doing everything in our power to put an end to the chaos, give them a functional country, and get the hell out. The point is not that the marine was probably justified in shooting the insurgent, the point is that it's regrettable that the marine had to be there in the first place.

Democrats Learning Yet? Of Course Not...

Senate Minority Leader Tom Daschle was defeated in his reelection campaign largely because he was torn between the conservative tendencies of his South Dakota constituency and the liberal demands of party leadership. He tried to take a middle line and failed on both counts. How did the Democrats respond to this loss? By nominating another conservative senator from a red state to serve as the new minority leader. Brilliant.

November 2004, Quote of the Month

It's old, but so worthy:

"Democracy is the theory that the common people know what they want and deserve to get it good and hard."

--H.L. Menken

Just What We Needed

I really don't have the time nor energy to give this a proper response, but this is one of the most absurd and stupid things I've seen on the Washington Post for some time (probably since the last time they ran a Krauthammer column). Why, why, why? Do we need to spend a crapload of money and open up an ugly diplomatic can of worms in order to blow shit up better? Isn't that the only thing we're really, really good at as is? I mean, is this really our problem in the war on terrorism, we can't blow stuff up well enough? So stupid...

The Man of the Hour

Introducing James "If I go down, I'm taking the Republican party with me" Dobson. Leader of the religious right, instigator of the effort to block Arlen Spector from taking over the judiciary committee, crusader against gays everywhere. Democrats need to shine a spotlight on this guy and not take it off until he has driven all moderates from the Republican party or forced Bush to divorce religious right. As long as he sticks to his values, and there is every indication he will, he can only hurt the Republicans.

Had Enough

Let the speculation end, Colin Powell is out. Looks like damned near the entire cabinet is being replaced.

Sometimes People Get A Little Worked Up...

And all I can say to this is: wow.

My Job Here Is Done

Attorney General John Ashcroft announced his resignation today, declaring: "The objective of securing the safety of Americans from crime and terror has been achieved." Whew! Good job! Speculation has Ashcroft planning to end global warming and cure cancer as an encore.

Re: Securing Their Gains

I've heard the claim all too frequently over the last week that President Bush received "the largest number of votes ever received for president," and I am disappointed to see it echoed by Newt in his article. As Josh Marshall notes, John Kerry got the second larges number of votes in history, followed by Ronald Reagan and Al Gore. It has nothing to do with popularity but has everything to do with population. A better measure of "mandate" is the number of electoral votes, and in that department, according to this post (again, Josh Marshall), President Bush obtained the lowest number of those since Woodrow Wilson beat out Chales Evans Hughes (a lifetime member -- dikaia upotheke).

I agree that health care reform presents one of the biggest challenges this country faces on the domestic front, and if Republicans are perceived as making strides that will help in the mid-terms. But health savings accounts alone will accomplish squat. Those who can already afford decent health coverage have the funds to take advantage of such a program, while the rest will be left to fight over the HMO scraps. Only a fundamental restructuring of America's health industry will cause real change -- and that just won't happen under Republican leadership (especially with Frist running things at the Senate).

In my view, the lasting Republican control depends more upon what happens outside the Republican party. The Democrats is adrift so I don't expect much from them until they can straighten up their act. The biggest immediate challenge comes from the growing discontent among fiscal conservatives that may lead to a formation of a viable independent or libertarian candidate in '08.

Some are waiting to see whether President Bush tries to reach out to the moderates to secure a lasting Republican legacy. I predict the only "reaching out" will be with fear -- fear of terrorists and fear of those who are different from the "mainstream" America. That agenda will succeed or fail depending on whether any other party presents a better message. A message of hope rather than despair.

Securing Their Gains

Newt Gingrich has an interesting column in the Washington Post laying out his strategy to extend Republican dominance.

Let the Good Times Roll

Good to see that Bush isn't going soft in his second term. Here and I was worried that reality might start to intrude on his fantasy land...

Oh, the Agony...

God bless the USA.

Experts to Investors: Dump Your Dollars

It has been a while since we've heard anything on this front, but The Christian Science Monitor has an article advising investors to buy up foreign currency, citing higher interest rates and declining dollar values. Here I was worried about foreigners not wanting dollars any more. We may beat them to it.

bin Laden: Honestly, We Don't Really Hate Freedom

Here is a transcript of bin Laden's now infamous speech. Very interesting. Is it just me, or has he been watching Farenheit 9/11 (see the closing lines)?

Dropping A Bomb

British medical journal The Lancet is publishing a report issued by a group of American and Iraqi researchers led by the Johns Hopkins Bloomberg School of Public Health, in which they claim that more than 100,000 civilians have died in Iraq since in the US invasion. This . story . is being . covered . all over . the . place. Prior to this, most media sources have been using iraqbodycount.net as their reference as to how many civilians have been killed. While iraqbodycount only puts the count at 17,000, Scott Lipscomb, an associate professor at Northwestern who works on that project, says that they only count deaths specifically reported on in the media and that they've "always maintained that the actual count must be much higher." The reaction seems to be split between complete skepticism based on the sheer size of the number, and some level of deference to general credibility of Lancet and Johns Hopkins. I'm sure the spinners are already spinning, and the fallout will probably last about until, oh, next Wednesday, at which point nobody will give a crap.

"Just the One-Fingered Victory Salute"

Check it out. (Quicktime)

The Russians Took 'Em!

So says "Mr. Shaw," according to this FT story. "Mr. Shaw" reportedly heads "the Pentagon's international armament and technology trade directorate."

Larry Di Rita, the official Pentagon spokesperson, was none too pleased. “I am unaware of any particular information on that point.... I would be careful about information that has been asserted because I don't know how accurate it might be.”

Good advice, Larry. I have known for some time not to trust anything coming from the Pentagon -- or the Bush administration generally. But it always helps when people get the word out.

Did Anyone Think of Asking the Iraqis What Happened to the Explosives?

Well, AFP did. According to Mohammed al-Sharaa, who (according to AFP) heads the Iraqi science ministry's site-monitoring department, "[i]t is impossible that these materials could have been taken from this site before the regime's fall."

"The officials that were inside this facility [Al-Qaqaa] beforehand confirm that not even a shred of paper left it before the fall and I spoke to them about it and they even issued certified statements to this effect which the US-led coalition was aware of."

Just to be sure you caught that, "which the US-led coalition was aware of."

Now, I don't know whether this guy is a crook or what, but don't you think other outlets should share what the Iraqi government has to say?

(Thanks again for the great coverage, Josh Marshall)

101st Airborne Commander Confirms They Did Not Search Al-Qaqaa

As noted on TPM (Talking Points Memo), NYT reports in this story to be featured in tomorrow's paper that they did not look for any explosives at Al-Qaqaa:

"We happened to stumble on it," he said. "I didn't know what the place was supposed to be. We did not get involved in any of the bunkers. It was not our mission. It was not our focus. We were just stopping there on our way to Baghdad. The plan was to leave that very same day. The plan was not to go in there and start searching. It looked like all the other ammunition supply points we had seen already."
* * *
"I had given instructions, 'Don't mess around with those. It looks like they are bunkers; we're not messing around with those things. That's not what were here for,' " he said. "I thought we would be there for a few hours and move on. We ended up staying overnight."

More on Cirincione in Salon

So I took a closer look at that Salon article I mentioned in the last post, and lo and behold -- Cirincione addresses some of the questions I posed. He contends the administration knew all along that the explosives were there, but they did not do anything about it because of arrogance and because they held a disdain for the IAEA: "The administration didn't like the inspection reports they were getting out of the IAEA before the war, and they were determined to punish and humiliate them." Cirincione continues:

The administration knew it was there. Why didn't they do anything about it? It was arrogance. I think you have to say that this is not incompetence as much as it is arrogance. They simply did not believe that they were going to have an insurgent or terrorist problem after taking the country. Even when the insurgency began, apparently there was no effort to try to go back and secure these materials.

Later in the article, he identifies what to him is the question to ask from this:

A key question here is, Have U.S. officials known all along that these were the explosives that they were dealing with? People need to go back to Bush officials and start asking some hard questions about what kinds of explosives have been used.

Update on Al-Qaqaa Fiasco

There are two news articles that, in my view, give a good description of the story as it now stands.

First, MSNBC has this story explaining that at most, there is a three-week period where the explosives--all 770,000 pounds of them--could have been taken from the site. That story quotes one of NBC's journalists who was embedded with the 101st Airborne when they arrived at the site. Lai Ling Jew describes the scene and explains that “there wasn’t a search.... The mission that the brigade had was to get to Baghdad. That was more of a pit stop there for us."

Second, CSM provides this summary of various news coverage on the topic. In a Salon article that CSM references, Joseph Cirincione, director of the Non-Proliferation Project at the Carnegie Endowment for International Peace is quoted as saying: "This is thousands and thousands of potential terrorist attacks.... It's like they knocked off the Fort Knox of explosives."

The media coverage is missing what I find to be the most important question here. If troops did search the Al-Qaqaa facility in Spring of 2003 and discovered that the explosives were gone, why did the US Government not report that to the IAEA? And how does that fit with the Bush Administration's position that the Pentagon did not learn of these missing explosives until after October 15, when the IAEA passed along the information it learned from the interim Iraqi government?

Of course, other questions remain unanswered too. For instance, what did the 3rd Infantry find when they got there on April 4th? According to this AP report, the troops found the explosives still under IAEA seal. And of course, where are the explosives now? Have they been used in the insurgency? And last, doesn't this demonstrate that there were not enough troops on the ground at the time of the invasion?

Disappointed With Slate

How in the hell did this story on Bush's tax cuts get past their fact checkers? The guy says nothing about where his numbers come from and they run absolutely contrary to those posted by the Congressional Budget Office. That report shows the tax rates on the top quintile dropping more on than any others, and that nobody's tax rate has fallen more than 11%. As a share of total tax revenues, the top quintile has dropped over the last 4 years, everybody else's share has increased to take up the slack. The Slate story is compete bullshit and they should be embarrassed to lend their (rapidly diminishing) credibility to it.

Eliot Spitzer - Super-Prosecutor

Slate has a nice profile on Eliot Spitzer. Not mentioned here, Spitzer also recently made news when it came out that his office is involved in a serious investigation of payola in the radio business, more news to follow. This is maybe not as critical as some of his other work, but it is a situation certainly worthy of attention and should be popular with the public.

Not Learning the Lesson

Apparently, back in March, even as the Abu Ghraib story was breaking, and even as the administration was trying to distance itself from the Justice Department's prior statements that international laws on torture didn't apply to the US, the Office of Legal Counsel was hard at work releasing an opinion stating that the CIA could remove prisoners from Iraq in contravention of the Geneva Convention, even as they acknowledge that this action constitutes a grave breach and a war crime under the terms of the convention. The Post article cites international law experts as calling the reasoning in the memo "unconventional and disturbing". These guys just don't take a hint...