Thursday, June 29, 2006

Strike Three for Gitmo

From the makers of Rasul v. Bush, and Hamdi v. Rumsfeld...

The ruling in the Supreme Court case Hamdan v. Rumsfeld again dismisses core claims of the administration's detention policy. When the administration attempted to claim that, in Guantanamo, the government held inherent authority to 'offshore' the detention and trying of combatants out of the bounds of judicial appeal and review, the assertion was repudiated by SCOTUS. The government, in setting forth its case in Hamdi, assented to the constraints of the Rasul decision, yielding to the right of habeas corpus review held by the federal judiciary. The Hamdi case, while more forceful on the legal principle of extending due process and habeas corpus to detainees, left wide open the broad issue of the parameters of that due process, particularly in what circumstances a detainee's case warranted a higher or lower degree of evidence-bearing and legal recourse. Having not yet finished reading the Hamdan decision, it seemed inevitable beforehand. Legal theory aside (to say I'm no expert is gross understatement), the case's real victory reveals one of the structural benefits of the separation of powers (and proves that the Bush administration hasn't dismantled the thing entirely) - the turf-war incentives of checks and balances. Without triumphalism, the appalling standard of judicial deference to executive authority - the bedrock principle uniting the pomposity of Justice Scalia with the cloying "extra-legal" legal theories of John Yoo, Alberto Gonzales, David Addington and so on - now appears to have bitten off more than it ever could chew.

Killing the Messenger

One accidentally side-splitting column from Heritage's Peter Brookes, and I'm suddenly gulled into acknowledging the ungainly, ongoing issue of this latest abhorrent act of sedition against our government at the behest of Bill "Vanzetti" Keller.

In Brookes' defense, he places the word "treasonous" in quotes, which suggests the sardonic. Or the illiterate. But far beyond the absurd false choice raised by Bush-partisan hawks, that between a society that can defend itself and a government that can explain itself, there is a true and crucial decision for the decider-in-chief and his advisers to consider, which the same officials have taken extraordinary pains to escape. An argument from the neoconservative position might be advanced that the jihadist menace is insurmountable if not for the possibility of abandoning the norms of an open society - if not, in other words, for the boon of the pliable, all-purpose crackdown. If the state is to sever all ties with obligations beyond militancy against enemies (the seeming aspiration of Brookes and fellow hawks), then recognizing good strategy in the maxim "know thy enemy" follows even more smoothly. The issue put to hawks is then this. Do bin Laden and his comrades expect the state apparatus of the Great Satan to shape-shift intractably into a blunt instrument of war, never again to handle certain other tedium - answering to its citizens, for instance? No, but that certainly is an ambition. And certainly the president has proven himself in the walking-and-chewing-gum category - and has a record-decimating budget to prove it. Then - for all's well that ends well - if an optimal war effort has sufficiently detracted from our government's ability to preside over an honest debate about a perfectly lawful program (in the case of the financing policy), or to bother with justifying a breach of a basic statute (as with warrantless wiretapping), does this expedite victory for our side? If spurring a discussion of a perfectly lawful policy by means of a perfectly legal "leak" of information through the press qualifies as an inducement to al-Qaeda, does it not give immense assurance to the enemy for those who prosecute this just war against terrorists to excoriate this rather mundane process of ordinary deliberative democracy? Prior to the matter passing into the realm of crisis, might not have bin Laden simply assumed that the United States was tapping his phones and monitoring his purchases? That the matter has been vaulted from process to crisis, by the hand of those whose impresive mental functions shape this war - doesn't this give greater aid and comfort to the enemy than, say, a news article about the policy? More pointedly, is what the war effort needs to the nursed back to health a maelstrom of seething hysteria issuing from the likes of Peter Brookes? Well, at least grant the point that the survival of the New York Post must surely assuage a few prominent theocratic barbarians.

Sunday, June 25, 2006

Senators Don't Read, Exhibit A

A simple way to test the worth of a political or economic idea is to run it by politicians. And, carefully, watch it run by them. Over and over, for a century or two. If the editors of the Onion were political theory students, they'd be hard pressed to do better than the recent embarassing posture of Sen. Hillary Clinton, who has just aligned herself with those at the receiving end of Frederic Bastiat's satiric reductio ad absurdum of trade protectionism, The Candlemakers' Petition. David Boaz drops the Acme anvil on the unfortunate presidential hopeful here.

Key sentence from Clinton's statement on the tariff:

"Our manufacturers deserve a level playing field and we owe it to them to make sure that others do not unfairly circumvent our fair trade practices."

To be fair, how shameful that those foreigners, many of whom probably don't even speak American, should dare hatch plans to sell lengths of wax at a lower cost to the American people than Americans are willing to sell them. The American people deserve the pride of place that comes with being told by the federal government whom they sure as hell had better buy candlesticks from. For it is this deep-seated principle that yields "our fair trade practices." Meaning, those trade practices politicians lapse into defending when circumstances turn them unwilling to speak honestly about their motives. It isn't much more complex than "if you trade deficit us, we're gonna trade deficit you right back!"

But remember, we are talking about foreigners. Rotten, stinkin' foreigners. So the trade debate rages on.

Monday, June 12, 2006

Good-For-Something Hippie!

For a while at least, the good, honest people of Hollywood will keep their peace of mind. The cyber-dragnet spearheaded by anti-piracy enforcers at the MPAA has paid off at last. But the bandits do not rest, twisting their mustaches in smoke-filled living rooms, camcorders unsheathed. The menace even has the gall to show its sneering face in public and speak up for its loathsome trade. Just days after the Crime of the Century is dragged into the light of justice, cyber-bandit John Perry Barlow dueled with MPAA head Dan Glickman, who, astonishingly, appears to have sold his soul only after an interval in Bill Clinton's Cabinet. The edifying (or maybe stultifying) moment comes when Barlow recalls how much money he's banked as an unofficial member of the Dead, to which the callow Glickman responds, impressively, that entertainers aren't absorbing profits. Translation: the law should regulate media technologies up to that point at which the entertainment industry - that hailed egalitarian bulwark against common, vulgar American capitalism - belches from its own avarice. Apparently the "greed is good" axiom only lacks the heft of regulation and criminalization - what makes America great!

Barlow is a name fans of the Grateful Dead, including myself, know well as the semi-talented successor to Robert Hunter. Since leaving behind the acid-daze (or perhaps not) he has emerged as, arguably, the world's foremost spokeshippie for technological freedom and privacy. Sticking it to The Man is slightly more than schadenfreude, in this case at least.