Obsidian Wings

Packer Says, "Iraq 4-Evah!"

by publius

One can only hope that the Obama campaign will completely ignore George Packer’s political advice on Iraq:

Obama has shown, with his speech on race, that he has a talent for candor. One can imagine him speaking more honestly on Iraq. If pressed on his timetable for withdrawal, he could say, “That was always a goal, not a blueprint. When circumstances change, I don’t close my eyes—I adapt.”

It’s really hard to overstate how stupid listening to Packer would be – on both a policy and political level.

But first, a word about Packer. Look, he’s a smart guy – and Assassin’s Gate is a phenomenal book. If you don’t have it, you should go buy it – it’s that good. But let’s face it – he has some conflicts of interest here. He was a war supporter and has a vested interest in being proven correct. Plus, Packer routinely suffers from Broderian false equivalence in his recent Iraq writing, which always strains to equate the relative badness of war supporters with war critics. If only we could see above the fray, as he does…

Anyway, on to policy. To be clear, I don’t want Obama to get up and lie. If he thinks withdrawal has become an unwise policy, then he should acknowledge that. But the fact that George Packer says it’s unwise policy doesn’t make it so. While Packer apparently believes that reduced violence strengthens the case for indefinite occupation, I would argue that it does just the opposite. (By the way, what facts actually would support withdrawal? Are there any?)

Admittedly, the surge has played a partial role in reducing violence, but not as much as other events such as the Awakening political agreement and ethnic cleansing. (Notably, Packer concedes this). But reducing violence wasn’t the goal of the surge – neither is it the goal of the occupation more generally. There has to be some political endgame – and I’ve never seen this endgame articulated in anything but the most make-believe fairy tale terms.

In any event, it’s not at all obvious that our occupation is making things better over the long term. Indeed, you could just as easily argue that our ongoing presence is a long-term destabilizing force, which is hardening ethnic divisions by supporting a government that's essentially a Shiite militia with fancier clothes. Plus, Iraq is a post-colonial country whose people want us gone.

But the larger point is that there must be some endpoint – some way to know when our mission will be over. It’s not fair to our soldiers or to the Iraqi people to continue the occupation hoping for the pony.

In this sense, Packer’s “conditional engagement” is, frankly, Bush-lite in that it’s simply calling for troops to hang around while hoping longer-term political reconciliation will materialize. There’s no concrete sense at all, however, of when troops would be allowed to come home.

For instance, Packer writes that conditional engagement would (1) keep heat on the politicians; and (2) allow for a phased withdrawal based on the facts on the ground. You can dress that up however you’d like, but that’s essentially Bush’s “run out the clock” strategy. You don’t keep heat on politicians by never leaving, but by leaving. And as I’ve noted, there are apparently no facts on the ground that would justify leaving. Packer’s policy simply shifts the inevitable, politically painful decision to someone else, while allowing him to escape blame for the consequences.

But policy aside, embracing Packer’s strategy would be complete political suicide. Obama won the nomination largely because of his opposition to Iraq. McCain was forced by the dynamics of the GOP primary to hug tightly to an extremely unpopular president on his most unpopular issue. Packer is essentially urging Obama to go hug Bush from the other side.

The beauty of an Obama-McCain contest from the Democratic perspective is that it offers the type of clean contrast that Kerry couldn’t provide. War supporter vs. war opponent. Bush III v. change. And so on. To change course at this point and adopt the Bush “let’s wait and see” approach would undermine the whole thing. Again, it would be different if staying in was clearly the right policy – but it’s not. George Packer has been wrong before.

To be honest, I’ve been less than impressed with Obama in the general. Some movement to the center is to be expected – that’s American politics in the shadow of the Electoral College. But what’s troubling is how defensive he seems on the foreign policy front (Clark, AIPAC Iran pandering, etc.). It’s frustrating because his seeming lack of defensiveness on these issues is precisely why he was superior to Clinton.

On this issue, though, it’s absolutely vital that the campaign resist the defensiveness. They should take a page from Rove and flatly ignore the Packer/Broders of the world on Iraq. The country is over Iraq – they want it done. There’s no need to keep wasting American and Iraqi life to vindicate George Packer.

Coopt the Vote

by Eric Martin

Earlier this spring, John McCain voiced his opposition to a bi-partisan bill (introduced by Jim Webb) that sought to vastly expand educational assistance, and other benefits, for our veterans and active duty military personnel.  Webb's bill represented a long overdue means for this country to share in the sacrifice, ever-so-slightly, and to begin repaying our military personnel for all they have endured, honorably and selflessly, over the past 6+ years.  McCain, on the other hand, felt that Webb's bill went too far, and put forth an alternative bill with more modest benefits. 

When the final bill was put to a vote last week, McCain was conspicuously absent (other than Kennedy, who missed the vote for health reasons, McCain was the only Senator not to vote).  Only six senators voted "no" in fact (all of them Republicans FWIW).  One might be tempted to say that McCain showed character on this issue - opposing a popular piece of legislation out of principle on the grounds that he disagreed with its substance. That temptation would lead one astray, however, as McCain shamelessly set about taking credit for the bill's passage at a recent campaign event:

I'm happy to tell you that we probably agreed to an increase in educational benefits for our veterans that not only gives them an increase in their educational benefits, but if they stay in for a certain period of time than they can transfer those educational benefits to their spouses and or children. That's a very important aspect I think of incentivizing people of staying in the military.

"We"?  Stay classy John.  And keep up the straight talk.

Suffice it to say, Obama voted in favor of the bill (and signed on early as a co-sponsor).  Which makes this McCain cheap shot even cheaper:

Unlike Senator Obama, my admiration, respect and deep gratitude for America's veterans is something more than a convenient campaign pledge. I think I have earned the right to make that claim.

Talk is cheap, and tuition is expensive.  You earn that "right" by backing up your lofty rhetoric with actual votes.  Otherwise, your advocacy is little more than a campaign expedient.   

Open Thread: Assignments

by publius

Some nasty little stomach bug cut into my weekend blogging. So while I recover, I thought I'd try the whole "assignments" thread that all the kids are doin' these days. In case you haven't seen these before, just let us know what you'd like us to write about. Or just gossip -- open thread.

McCain, Russia, And The G-8

by hilzoy

Matt Corley of ThinkProgress caught this bit from the end of a Reuters article. Quoting one of McCain's advisors:

"He also dismissed McCain's comment last October on Russia and the G-8 as "a holdover from an earlier period," adding: "It doesn't reflect where he is right now.""

Matt also noted that McCain didn't just say he wanted to kick Russia out of the G-8 in October; he said it at the end of last March in his last major foreign policy speech. As I have noted earlier, Fareed Zakaria called this "the most radical idea put forward by a major candidate for the presidency in 25 years." So: what's the big deal, and why does it matter if no one knows what McCain's position on it is?

Heller's Indictment of Originalism

by publius

Ok – let’s talk Heller. The question in Heller was not “individual” versus “collective” right, but whether the individual right must relate in some way to militia service. The Court said no, in a 5-4 party-line vote. I’m not crazy about the result, but I don’t care that much about guns. The reasoning, however, is far more troubling. Scalia’s opinion is blatant results-oriented analysis dressed up as rigid historical analysis. The idea that this result is compelled by the history is, frankly, absurd.

There are a million things about Heller on the Internets, so I’m limiting myself to this one point – the Heller opinion is an indictment of originalism. In particular, it shows the gaping weaknesses of a methodology that says our constitutional rights should turn on the ability of non-historian judges and law clerks to sift through cherry-picked snippets of early American history. Stuart kings should be less relevant than the realities of 21st century urban violence on this particular issue.

To begin, let me emphasize that history shouldn’t be irrelevant to constitutional analysis. It can be a valuable tool when the historical record is fairly clear. For instance, let’s say Congress decided to put images of our troops on quarters (25 cent pieces), and someone sued saying the Constitution prohibits “quartering” of troops. History there clearly illustrates that the text doesn’t refer to coins. Similarly, the “domestic tranquility” clause isn’t a basis for a federal domestic abuse statute. So yes, history can be relevant and even dispositive.

But the value of history to constitutional interpretation largely vanishes when the historical record isn’t clear – e.g., when it plausibly supports both interpretations. At this point, courts lack the institutional competence to decide which side’s cherry-picked history citations are more accurate. Judges aren’t historians. They haven’t been trained that way. They have no idea whether the subset of materials being presented is representative and sufficient and so on. Thus, when it’s close, courts need to move on to other interpretative methods.

In Heller, the opinion itself illustrates how unclear the record is. Both sides present historical examples that, taken alone, support their point well. But the evidence doesn’t compel a conclusion either way – particularly from institutionally incompetent judges. It can retroactively justify the decision, but it’s not determining the outcome.

Even if you’re not persuaded by Stevens’ dissent, he at least notes several powerful challenges to Scalia’s historical analysis. Just off the top of my head – (1) the original draft of the Second Amendment was more military-related; (2) several state constitutions explicitly mention self-defense, unlike the federal one. And there are many others. Again, I don’t want to get into a historical debate because it’s silly. The point is that Stevens provided several examples that, at minimum, complicate Scalia’s overly-rosy historical record (which of course neatly held up to a 5-4 vote).

But moving beyond Heller, the extensive use of history in complicated situations has at least two other major problems: (1) it’s anti-democratic; and (2) it’s completely divorced from real-world considerations. More on each below the fold:

Returning To The Battlefield: Abdullah Salih al Ajmi

by hilzoy

Bill Roggio has a story today called "Released Guantanamo detainee behind March suicide truck bombing at Combat Outpost Inman in Mosul". The bombing itself is a few months old, and got some press at the time. From the Boston Globe:

"Pentagon officials yesterday said Ajmi, who was among more than 500 former Guantanamo inmates who have been released or transferred to other countries, was a dramatic reminder of the danger in releasing those who are avowed terrorists - even to US allies who promise to ensure they will not pose a future threat."

Several months ago, I hadn't just read the Seton Hall report on released detainees. But now that I have, I recognized the story. It's a bit more complicated than those Pentagon officials make it sound.

"While Justice Scalia is clearly wrong about the number of detainee recidivists, his larger point seems to be that the Government, not the courts, should be trusted with separating the sheep from the goats. However, one of the greatest ironies of the whole recidivism debate is that not a single detainee has been released as a result of habeas corpus. All recidivists have been released by the Department of Defense, which has never explained why it released such individuals to “return to waging war” against us. Any assessment of the relative strengths of judicial and political processes should be made with full awareness of the story of ISN 220 [Ajmi], who “returned to the fight” not as the result of any judicial ruling but rather because of a decision made by the political appointees at the Department of Defense who released him despite the objections of the military. (...)

The Combat Status Review Tribunal (CSRT) declared ISN 220 to be an enemy combatant. See Appendix 2. The Tribunal held that he was a “fighter for” the Taliban who engaged in “hostilities” against either the United States or its coalition partners. The Tribunal based its first finding that ISN 220 was a Taliban fighter on two incidents. First, he went AWOL from the Kuwaiti military so that he could travel to Afghanistan to participate in the Jihad. Second, the Taliban issued ISN 220 an AK-47, ammunition, and hand grenades. With respect to the latter finding, the Tribunal considered allegations of five events to conclude that ISN 220 engaged in hostilities: he admitted that he fought with the Taliban in the Bagram area of Afghanistan; the Taliban placed him in a defensive position to block the Northern alliance; he spent eight months on the front line at the Aiubi Center in Afghanistan; he participated in two or three fire fights against the Northern Alliance; and he retreated to the Tora Bora region, and was later captured while attempting to escape to Pakistan.

Less than a year after ISN 220’s CSRT, on May 11, 2005, the Administrative Review Board of the Department of Defense affirmed the CSRT assessments and decided that ISN 220 should be further detained. See Appendix 3. Even with the extraordinary redaction of the Review Board’s report, ample evidence apparently existed for these assessments and the recommendation for continued detention. Specifically, a Government memorandum prepared for the ARB identified three factors that favored continued detention for ISN 220: (1) he is a Taliban Fighter; (2) he participated in military operations against the coalition; and (3) he is committed to Jihad. Moreover, the ARB primarily relied upon two factual bases for its conclusion that ISN 220 was committed to Jihad:

1. [ISN 220] went AWOL [from the Kuwaiti military] because he wanted to participate in the jihad in Afghanistan but could not get leave from the military.

2. In Aug 2004, [ISN 220] wanted to make sure that when the case goes before the Tribunal, they know that he is a Jihadist, an enemy combatant, and that he will kill as many Americans as he possibly can. (Emphasis added). (...)

While the documents which have been released strongly suggest that ISN 220 should still be detained, there are no available records indicating why he was released or who is responsible for the release. The only thing that can be said with assurance is that, Justice Scalia to the contrary notwithstanding, no federal judge is responsible. Perhaps if the process were more transparent, such a grave mistake would not have been made."

So: Ajmi was captured on a battlefield. He said he was there because he wanted to join the jihad. He also said that if released, he would kill as many Americans as possible. That means that the government had plenty of evidence that he was an enemy combatant, as alleged. And this evidence wasn't somehow suspect; it was his very own statements.

All that habeas motions give a detainee is the right to ask: is the government holding me for a good reason? If the answer is 'yes', then the detainee goes back to jail. (That's why there's no problem with allowing Osama bin Laden habeas rights: there's more than enough evidence to hold him either as an enemy combatant or on any number of straightforward criminal charges, like murder.) In Ajmi's case, the military seems to have had excellent reasons for thinking that Ajmi was an enemy combatant. Had he been allowed to file a habeas motion, he would probably have been sent back to jail.

The only reason why he might have been released is if all the evidence against him was produced under torture. That seems unlikely, given that some of the evidence that he was an enemy combatant was his having been captured at Tora Bora. But even if that were true, it would indicate not a problem with our legal system, but with this administration's use of torture, which defied not only basic moral norms, but also the requirements the government should have followed if it wanted to convict actual terrorists in a court of law.

VitameataSurgeamin!, Part I

by Eric Martin

The answer to all your problems is in this little bottle!

The Surge is being treated as a panacea of sorts in GOP circles, imbibed in large doses as treatment for various and sundry maladies - providing pep to sagging electoral prospects, as a balm to assuage a restive population chafing under the strain of indefinite occupation, as a means to rejuvinate the moribund reputations of hawkish analysts and to rehabilitate the doomed historical legacy of a collosal policy failure. For starters.

Despite its popularity, The Surge-as-cure-all has all the medical bona fides of a snake oil-like tonic. But then, its primary purpose is to mask the symptoms, not treat the pathology, and in that narrow capacity it has proven to be quite the wonder drug.

In fact, it has quickly become the flagship product line brought to market this election season.  The opening salvos in the overall marketing strategy come from those that assure us that The Surge is working. But this tendentious claim is only made possible when the effects of The Surge (reduced levels of violence) are substituted for the claims of its therapeutic value (that it would usher in an era of political reconciliation that would stabilize the country). Nevertheless, the media has by and large bought in to the "success" narrative.  Remember folks: optimism sells!

The next wave of hawkers hail from that clan of traveling salesmen known as the Kagans, who take the branding to the next level: As a result of The Surge's success, “America is very close to succeeding in Iraq.” In fact, we are "unequivocally winning." Sure, it's a little unclear what exactly is meant by "succeeding" or "winning" - but hey, don't let that get in the way of a happy ending.

Now that the quacks have the public nodding along to the first two items in the press package, it's time to unveil the third: Since, thanks to the success of The Surge we have basically won in Iraq, I think we can all agree that it was the right decision to invade after all!  See? Huh? Huh? Us neoconservatives aren't so crazy after all!

And now, ladies and gentlemen, the coup de grace: Since The Surge was a success, and that success led to our victory in Iraq, and that victory proves that it was right to invade Iraq...therefore, you should vote for John McCain over Barack Obama because McCain supported the invasion and The Surge! What judgment. What courage. What foresight. Relatedly, Obama wants us to leave Iraq in our moment of glory whereas McCain is committed to at least 100 more years staying to apply the SurgeCoat victory sealant.

Seein' as it's special circumstances an' all.

(In Part II, I will analyze claims that The Surge (meaning the addition of 20,000 troops) was the primary factor in reducing levels of violence and, regardless, whether The Surge has achieved its stated goals)

Making Eye Babies

by hilzoy

The DoJ Inspector General's report (pdf) on politicizing hiring at DoJ, which I wrote about here, mentioned one Esther Slater McDonald, and claimed that she had violated DoJ policy and federal law by taking people's political affiliation into account in hiring decisions. She's the one who did Google searches on candidates, circled things she thought might indicate leftist affiliations, and wrote such comments as:

"Poverty & Race Research Council actively works to extend racial discrimination through increased affirmative action and, while there, [the candidate] helped draft document arguing that federal law requires recipients of federal funding to seek actively to discriminate in favor of minorities (racial, language, and health) rather than merely to treat all applicants equally."

(I take this to be code for: the candidate noticed that federal law sometimes requires affirmative action.)

One of TBogg's commenters pointed him to this article about McDonald's alma mater, which is fascinating in its own right. For instance:

"Of Pensacola's many rules, those dealing with male-female relationships are the most talked about. There are restrictions on when and where men and women may speak to each other. Some elevators and stairwells may be used only by women; others may be used only by men. Socializing on particular benches is forbidden. If a man and a woman are walking to class, they may chat; if they stop en route, though, they may be in trouble. Generally men and women caught interacting in any "unchaperoned area" — which is most of the campus — could be subject to severe penalties.

Those rules extend beyond the campus. A man and a woman cannot go to an off-campus restaurant together without a chaperon (usually a faculty member). Even running into members of the opposite sex off campus can lead to punishment. One student told of how a group of men and a group of women from the college happened to meet at a McDonald's last spring. Both groups were returning from the beach (they had gone to separate beaches; men and women are not allowed to be at the beach together). The administration found out, and all 15 students were expelled.

Even couples who are not talking or touching can be reprimanded. Sabrina Poirier, a student at Pensacola who withdrew in 1997, was disciplined for what is known on the campus as "optical intercourse" — staring too intently into the eyes of a member of the opposite sex. This is also referred to as "making eye babies." While the rule does not appear in written form, most students interviewed for this article were familiar with the concept."

But it gets even stranger:

"Several years ago, Pensacola publicly criticized Bob Jones University for using translations of the Bible other than the King James Version. (Pensacola's policy is that the King James is the only divinely inspired English translation.)"

I can see, if I squint very hard, some reason for thinking that Christians should not gaze too long or too intently into the eyes of members of the opposite sex to whom they are not married. Christianity is, after all, the religion that gave us such stories as this:

"A monk met the handmaids of God upon a certain road, and at the sight of them he turned out of the way. And the abbess said to him, "Hadst thou been a perfect monk thou wouldst not have looked so close as to perceive that we were women."

But on what possible grounds could anyone think that the King James Bible is (a) divinely inspired, or (b) the only divinely inspired English translation?

And then there's this:

"They used to say that being at PCC is God's will for our lives," she says. "So walking out of PCC would be breaking God's will for our lives. Then I've heard them say that you might end up dying because God can't use you anymore."

You might end up dying?

To say something I've said before: if you believe in the God of Christianity -- an omnipotent, omniscient, benevolent deity -- then of course you should want to do His will. After all, being benevolent, He always wants you to do the right thing, and being omniscient, He couldn't possibly be wrong about what the right thing to do is. And of course you should think that doing His will matters immensely.

The more you care about doing anything, the more you ought to care about successfully identifying what counts as doing that thing, and about the possibility that you might be wrong. The more you want to end up financially secure in retirement, for instance, the more reason you have to care about the difference between what strikes you as a nifty financial move and what actually is one. Likewise with God: the more important you think it is to do God's will, the more reason you have to care about the difference between what you think is God's will and what He actually wills. The Bible supports this view: it is consistently harsh towards people who confuse what they imagine God wants, or ought to want, with what He does want. (Cf. Deut. 18:20: "But the prophet, which shall presume to speak a word in my name, which I have not commanded him to speak, or that shall speak in the name of other gods, even that prophet shall die." And, yes: that's the King James version.)

People who confuse their own ideas about what God wants with His will either suffer from presumption or pride, which leads them to overvalue their own take on things as compared to God's, or lack faith in God as an independent being, which leads them not to bother with the difference between His will and theirs. (If a friend leaves you in charge of some asset while she's gone, of course you have to worry about whether some decision is the one she'd really want you to make. If your imaginary friend does the same, by contrast, you don't need to worry at all. And if you regard God as your imaginary friend, it would be easy not to worry about the possibility that you have mistaken what He wants you to do.)

It is very hard for me to see how someone could tell students that they might die if they leave your college, since God would have no more use for them, without making some such mistake. It is neither the right nor the Christian thing to do.

Heller

by publius

Scotusblog reports that it's out. And the Court did affirm Heller, thus finding an individual right in the Second Amendment. This part was expected -- the key will be how broadly they read it, and whether it jeopardizes federal gun legislation. The opinion was also 5-4 along political lines.

More on that after I read the opinion. Scotusblog will have more -- as will Professor O'Shea at Concurring Opinions.

Kennedy v. Lousiana, Take Two

by publius

It happens from time to time, but my initial post on Kennedy v. Louisiana was wrong. I disagree with the decision. That said, I think it’s a plausible decision – and it certainly doesn’t justify the hyperventilating cries of illegitimacy from conservatives that seem to accompany every decision that they disagree with (more on that in my next post).

But it’s a bad opinion. It’s not merely that the methodology is shaky. Even assuming you accept the methodology, the Court’s result doesn’t seem consistent with that methodology.

To back up, constitutional law decisions always have two key parts: (1) the result; and (2) the reasoning (i.e., the methodology or doctrine or framework). For instance, imagine the Supreme Court said (a) Gitmo detainees have habeas rights; (b) because Publius says they do and he’s infallible. That’s the correct result, but the reasoning is a wee shaky. More to the point, the methodology adopted will lead to bad things, even if we like the result it produced in this particular case.

It’s easy to lose sight of it in political debates, but constitutional law is often a battle of competing methodologies. And if you want to be cynical, certain Justices favor certain methodologies because they generally produce results they like. Originalist methodology, for instance, was heavily motivated by hostility to the Warren Court. True, originalism sometimes produces results conservatives don’t like, but those are the operating costs of adopting politically favorable methodologies.

So with the result/reasoning distinction in mind, we can better understand the problem with Kennedy. It’s not only that the methodology itself has some serious problems. It’s that the methodology suggests a different result. It gets a bit denser below the fold.