"Philosophers have only interpreted the world...the point is to change it." -- Marx
This is version 2.0 of my blog, now cleverly admitting that it is a blog, rather than attempting to masquerade as different sections of a website. Also, hopefully, updated more often than a few times a year, now that the Obama campaign is no longer eating quite so much of my life.
I talk most often about politics and constitutional law, but also about just about every aspect of modern and contemporary culture. With dazzling insight, I might add.
The
decision of the Supreme Court in Citizens United v. Federal Election
Commission is arguably the most extreme
example of judicial activism in history.
It is vital for all of us who seek to preserve democracy in the United States
to understand this fact, because it determines the nature of the response that
is required.
As
Justice Stevens establishes in his lengthy dissent, the Court broke its own
rules to make this ruling. It
answered questions it was not asked and reached conclusions that no party to
the case ever wanted it to reach.
It decided the case in the broadest possible way, when it is committed
to deciding cases narrowly. It
violated the principle of stare decisis,
which says that--all other things being equal--it is important to bow to
precedent, even bad precedent, when making decisions. The alternative is legislative chaos, because Congress and
the states rely on the Court’s rulings when they make new laws, and they need
to know that those rulings are stable foundations on which to build those
laws. Put simply, the five
justices concurring in this opinion abandoned any pretense of judicial
restraint or of respect for any
federal political institution, including their own. There is no reason to believe they will suddenly develop
respect for our political institutions in the future, so any response to Citizens
United must presuppose that the Court’s
abandonment of judicial restraint will continue, so long as these five justices
sit on it.
Judicial
restraint is a fundamental principle of our system of government: It preserves
the appearance of impartiality, it ensures a minimal level of stability in the
law, and it is necessary to maintain the constitutional separation of powers. For all these reasons, Supreme Court
justices are expected to decide the cases before them in the most narrow way
possible. You don’t overturn a
whole law if you can overturn only part of the law. You don’t overturn even part, if you can specify that the
law is invalid only under limited circumstances. And so on.
The
conservative majority had many legitimate options if it wished to rule in favor
of Citizens United. It chose none
of them. It could have ruled that the Bipartisan Campaign Reform Act of 2002 (BCRA) did not apply to a nonprofit
corporation predominantly funded by individuals or that it did not apply to
video-on-demand broadcasts--which is what Citizens United asked it to do. It could have ruled that the law did
apply to Citizens United, but that it was unconstitutional as applied in this case.
Instead, the Court hauled the appellant and defendant back before it and
asked them to reargue the case in much broader terms in order to give it the
ability to hold the BCRA unconstitutional on its face, to obliterate more than one
hundred years of precedent, and to grant full First Amendment rights to
corporations, radically altering the very nature of the American public sphere.
The
thing that makes this decision so flabbergasting, though, is that the rules and
principles that the majority violated in Citizens United are most commonly associated with judicial
conservatism. Although almost all
jurists believe in respecting Congress, the executive, and precedent whenever
possible, it is most often conservative justices and politicians who claim
restraint as a core value and most often liberal justices who are accused of
“judicial activism.” Justice
Kennedy goes through the motions of arguing that the Court really wanted to
make a narrower decision and was simply unable to do so, but his argument rings
incredibly hollow. The members of
the majority simply decided to use this case as an excuse to accomplish a broad
policy goal, and in the process they abandoned what were until Thursday
supposed to be their most deeply held values.
For
this reason, no legislative avenue will suffice to right the wrong done to our
democratic system of governance.
Corporations have been vested with full First Amendment rights. Once vested, as a matter of judicial
principle, it is extremely difficult to remove such rights by statute--and
rightly so. But even if it
weren’t, there is every reason to believe that the five-member majority that
issued this opinion will continue to produce intellectually dishonest, specious
decisions knocking down any limitation on corporate speech that Congress tries
to erect. Only a constitutional
amendment will suffice to restore the proper balance of power.
Many
people have already come to this conclusion. I am being invited to Facebook groups and fan pages advocating
a constitutional amendment at the rate of five a day at the moment, and the
momentum is just beginning. So, I
want to conclude with a few words about what happens next. First things first: the various nascent
pro-amendment groups need to get together and talk about what the amendment
should look like and come up with impeccable language and a unified strategy
for passage. It is vitally
important that language be hashed out relatively soon, because vagueness is a
serious liability. It makes it
much more difficult to recruit support, and we will need millions of supporters
if an amendment is to be ratified.
Vagueness also poses the danger of allowing momentum to build for an
overly extreme response. Such
overreaction in crafting a constitutional amendment is a real danger, so here
are some things to keep in mind during the national discussion that is about to
begin:
1. Justice
Kennedy asserts in his opinion that corporations are “associations of
citizens,” and most of the Court’s absurd reasoning in Citizens United flows from that specious formulation.
2. For-profit
corporations are not “associations of citizens” in any sense relevant to
political speech. Members or
shareholders need not have any beliefs in common. They need not even share financial interests (Long-term shareholders, for example,
have radically different interests from short-term investors looking to turn
the stock around for a quick profit. ) These corporations can and should be
robbed of the right to political speech, because the notion that a given
corporation even has identifiable political opinions is itself a fiction.
3. Nonprofit
corporations that are created in order to facilitate political cooperation are entirely different beasts. An entity that actually is an “association of citizens” needs to have its right
to free expression protected. We
must not rob committed citizens of the right to pool their resources in order
to engage in meaningful political action.
4. Yes,
if nonprofits (including 501(c)4’s, 527’s, PACs, etc.) are allowed to retain
First Amendment protections, then they will retain the ability to exert
improper influence on the system.
However, it is not possible to completely eliminate such influence. No
constitutional amendment will ever transform the United States into a
corruption-free utopia, and attempts to do so will cause far more problems than
they solve. The distinction
between businesses that exist to make profits and incorporated political
entities that exist to amplify the opinions of their membership must be retained for the vitally important
underlying principles of the First Amendment to be preserved.
5. By
the same token, the freedom of the press must be preserved. But that’s a no-brainer. The First Amendment already
distinguishes between the freedom of speech and the freedom of the press. A constitutional amendment that robs
corporations of the former need not threaten the latter at all, as long as it
explicitly limits itself to corporate speech and preserves the full and
unfettered freedom of the institutional press.
6. Moreover,
corporate personhood should not be entirely abolished. Some of the most important progressive
work being done right now, whether in the Move Your Money campaign or the Slow
Money movement, depends on the continued viability of small, local businesses
and financial institutions with connections to their communities. The last thing we want to do is
inadvertently make it impossible for such small concerns to survive by robbing
them of the protections of incorporation.
When deciding how far to go in stripping corporations of their
advantages, we should have in mind the most vulnerable
corporations--mom-and-pop stores and sole proprietorships--not Bank of America
or Microsoft.
The Internet is full of talk about FISA this week, but I’m not convinced that anyone writing about the law has actually read it, or otherwise knows what the hell they’re talking about. A problem. So here’s my attempt to clear up some things regarding Congress’ (likely) passage of the new FISA law, which includes immunity for telecommunication companies who were complicit in the Bush administration’s violations of the original law. I’m going to write it in a kind of a call-and-response form.
What’s FISA anyway?
FISA is the Foreign Intelligence Surveillance Act, passed in 1978 to establish procedures for spying on foreign agents without unnecessarily violating the privacy of Americans. It is contained within Title 50, Chapter 36 of the U.S. Code, and it establishes the circumstances under which the government can engage in electronic surveillance of international terrorists or agents of foreign powers.
What does FISA say?
I encourage you to read it for yourself rather than trust me. Essentially, though, it creates a secret FISA court that reviews and approves the Attorney General’s requests to engage in electronic surveillance of foreign agents. It sets out the procedures that must be followed by both the Attorney General and the court to ensure that U.S. citizens’ rights are protected as much as possible. If there’s a time crunch, surveillance can be begun immediately and authorized after the fact, but it must eventually be authorized by the court. The most important part is simply that the Attorney General and the President are required to follow these procedures.
And President Bush didn’t do that?
No, he didn’t. The President, for reasons best understood only by himself, chose to bypass the FISA court and order surveillance of possible Al Qaeda members and associates without any warrants or other judicial authorization. This is a problem because, to repeat, the President is required by the law to get this authorization.
Always? Aren’t there any exceptions?
Yes, there are exceptions. For example, the Attorney General can bypass the FISA court and authorize surveillance for a full year if, among other things, he certifies in writing under oath that “there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party.” That clearly doesn’t apply in this case, since the controversial Bush program was--as far as we know--a fairly broad domestic program. There’s a pretty substantial likelihood of most people using domestic telephones being either U.S. citizens or permanent residents (“United States persons,” according to the law).
What about during wartime? Can’t the president bypass FISA using his authority as commander in chief?
Good question, since every journalist covering this story seems to think so. Here’s what the law actually says, in section 1811 (“Authorization during time of war”): “Notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for a period not to exceed fifteen calendar days following a declaration of war by the Congress.” So, there you have it. Fifteen days. When war breaks out, the President has two weeks of additional authority to bypass FISA as commander in chief. Then, it goes away.
Now, this is important, so I want to dwell on it for a moment. The President claims that war is an exception to FISA’s rules, and the press repeats this claim as though it were legitimate. It just ain’t true. FISA is a part of Title 50 of the U.S. Code, the Title named “War and National Defense.” War is the rule, not the exception. The law specifically says exactly what the President can and can’t do during wartime. Here’s the scenario envisioned by the law:
1)
Congress declares war: it’s probably a bit hectic in
Washington, so the President has two weeks in which to authorize whatever
stopgap surveillance measures are necessary while plans are made to deal with the situation
on the ground.
2)
During those two weeks, Congress and the President must work
together to figure out if any modifications need to be made to the existing law. If so, they must pass emergency legislation either changing the law or else simply
extending the President’s power to bypass the FISA court beyond the automatic two-week
period.
3)
After fifteen calendar days have elapsed, if the law has not
been modified in the interim, the President loses his expanded powers and must
once again follow the established procedures. Period.
4) In this particular case, the Congress passed its authorization to use force to respond to the 9/11 attacks on September 14, 2001--as close as they came to actually declaring war. Thus, on September 30, 2001, President Bush lost the authority to bypass the FISA court. He issued orders bypassing the court beginning in October, and the program was reauthorized many times, remaining in effect until January 17, 2007.
Okay, so the President broke the law. Repeatedly. For more than five years. But wasn’t it necessary to do that to protect us from terrorists?
No. If it was that important, all the President needed to do was ask Congress to pass an extension of his wartime powers beyond the fifteen days. One sentence. “The president is hereby authorized under section 1811 of 50 U.S.C. to authorize electronic surveillance without a court order for an additional two years.” (or whatever). One sentence, and the rule of law would be obeyed. He simply didn’t bother. Why? Who knows. Arrogance. Laziness. Sheer incompetence and disinterest in meeting the minimum standards of legality. An inability to come up with a single good reason for bypassing the FISA court that Congress would assent to. All of the above. Perhaps it simply never occurred to him that there’s any difference between obeying the law and breaking the law--because for him, the consequences seem to be about the same.
It is extremely common for those who defend the President to assert that there’s some kind of inherent contradiction between protecting us from terrorists and protecting our civil liberties, but guess what? There isn’t. It’s a false distinction invented by apologists for mediocrity. All our leaders need to do to protect both our lives and our rights is to be competent. The President failed, ultimately, not for any sort of ideological reason, but because he’s just really, really bad at his job. And when Congress asks us to believe otherwise, it is asking us to treat the utter mediocrity and incompetence of our current leadership as acceptable.
We must never forget the lessons of the Iraq war and of Hurricane Katrina, which boil down to this: Incompetence is a threat to national security. Nothing endangers both the lives and the rights of all Americans so much as excusing the mediocrity embodied in the current administration. No greater threat exists to our well-being than the lowering of our standards. (I can hear people on the Right even now exclaiming, "Low standards are more dangerous than terrorists? See what the crazy leftists are saying now!" But guess what? Our low standards have cost a great many Americans their lives, both within and without the so-called war on terror.)
Okay. That’s all well and good, but why should the telephone companies be the ones to take the blame for all this? Why shouldn’t we grant them immunity for helping out their government? Were they supposed to say no when the government came to them and asked for their help in the war on terror? Aren't you worried that they won't cooperate next time?
As has been pointed out by others, the law prohibits the telephone companies from giving information to the government. Therefore, it is ridiculous for them to say, “but the government asked us for it.” These are gigantic corporations with legal departments. They should bloody well know when the government is lying to them about what is and isn’t legal. Similarly, if in the future the government makes a request that actually is legal, the fact that the phone companies can be punished for breaking the law shouldn't make them unwilling to obey the law. We don't worry that putting bank robbers in jail could discourage law-abiding citizens from withdrawing their money from the bank.
At a minimum, the lawsuits need to proceed so we can use the trials to determine the details of what happened, of how egregious the violations of FISA actually were, how many thousands or millions of us were spied upon. And if there really is a signed piece of paper out there from the Administration assuring the phone companies that its request was legal, then the phone companies can countersue the government to recover their damages. (Google “detrimental reliance.”)
But the new law represents a compromise, right? It may not be perfect, but the Democrats are agreeing to immunize the telecoms in return for reestablishing the rule of law, making sure that the President can’t bypass the will of Congress in the future.
Pardon my bluntness, but that’s the stupidest
argument yet. It was ALREADY
illegal for the President to do what he did. There’s no need for a new law to make it doubly illegal. This is one of the most common and
biggest mistakes made by our illustrious legislature. When people break laws, Congress responds by passing more
laws. It’s like saying, “there are
too many bank robberies in this country, so we’re going to pass a new law
outlawing bank robberies.” The
solution is to enforce the laws that exist, not to pass more laws that won’t be
enforced. I mean, seriously, if the President disobeys this new law, does anyone imagine he will face any consequences of any kind for doing so?
When the war in Iraq began, I was teaching at Georgia Tech, and I talked to my students about what was going on. The students on the Left opposed the war; they thought that the president was lying to us, that he was manipulating the country into a war over oil. The students on the Right supported the war; they also thought the president was lying to us, but they thought that he was doing it for our own good, manipulating the country into a war that was necessary for reasons he couldn't divulge.
None of my students thought Bush was telling the truth, and none was particularly upset about it. Most of them seemed to believe that lying and manipulating the country was part of the president's job description. That level of cynicism bothered me, because it provided the students with an alibi, an excuse for not getting involved in politics, for not even trying to hold our leaders accountable. And after I had been confronted with it once, I started to see the same cynicism everywhere.
That's why I'm supporting Barack Obama for president. He understands that the instruments of government are not the politicians' instruments, they are our instruments--and when he's done with them, we want 'em back in good condition. He understands that the constitutional balance of power is more important than any one leader’s agenda, including his own, and I trust him to preserve that balance rather than sacrifice it to his goals. Barack is--finally--a politician I can hold to a higher standard.
But far more importantly, Barack is the first politician in generations to hold all of us to a higher standard. He will not allow us cynically to accept being manipulated by our leaders; he will not allow us simply to cast our votes in February and November and say that we've done our part; he wants us to get involved. He wants us to get to work.
Senator Obama has turned his presidential campaign into a vehicle to rebuild political community in this country, to create a grassroots movement that is committed to working to fix what's broken. Because Barack believes, as I believe, that if all we Americans decide to do together in 2008 is merely to elect the next president of the United States, then we've already lost. On the other hand, if we can use this candidacy to build a real grassroots movement dedicated to reforming our government and improving our country and our local communities, then regardless of the outcome at the polls, we've already won.
Want to join the movement? E-mail me.
What does it mean to be an American? What are the most cherished and fundamental principles at the heart of our culture and our system of government? Perhaps the most cherished of all is the following: We as Americans abhor and eschew the tyranny of the majority. This nation was founded as a republic, not a democracy, because our founding fathers sought an anti-tyrannical system of government. They knew that there are various forms of tyranny. For example, dictatorship or absolute monarchy constitute tyranny by an individual, and the Constitution was designed to limit the powers of the president to ensure that the nation’s executive could never become a tyrant. Simple majority rule—democracy—is also a form of tyranny, and the Constitution was equally designed to ensure that a majority of the nation’s populace could never arise to become collective tyrants.
The Constitution was written, in a very real sense, to subvert the will of the majority. That is the reason the United States Senate exists. It is the reason that the Bill of Rights exists. The founding fathers wanted to safeguard rights and freedoms of states, groups, and individuals that would otherwise be trampled by the will of the majority. They sought to ensure that the majority’s values could not be imposed upon Americans who did not share them. As a result, the rejection of collective tyranny is part of what defines us as Americans.
It is for this reason that I am so disturbed by the
consistent rhetoric adopted by Republican leaders such as Tom DeLay and Mitt
Romney. When they say, as Romney
did again last week, that “activist judges” should not enforce constitutional
principles against the “will of the people,” they are rejecting the single most
cherished value at the core of our nation’s Constitution.
It doesn’t matter what the context of this sort of statement
is, or what specific issue it refers to.
In this case, it happened to be gay marriage. But when Republican leaders advocate embracing the “will of
the people” instead of constitutional guarantees, they are not just saying “gay
marriage is bad.” That would be
fine; whether we agree or not, it’s an opinion held by many people for various
reasons. Nor are they simply
saying “this is a bad interpretation of constitutional principles.” Again, whether we agree or not, that’s
a perfectly legitimate opinion to hold.
Instead, however, they are saying “the will of the people should
override basic constitutional principles as interpreted by people in positions
of judicial authority.”
There is no way to read a statement like Romney’s without
seeing it as a rejection of the entire philosophical and jurisprudential
infrastructure underlying the Bill of Rights. It is possible that Romney does not understand this. It is more likely that he is simply saying
things he doesn’t really mean, because he assumes that his constituency is
dumber than he is. Either way, the
plain meaning of his utterance is “I reject the Founding Fathers’ values. I reject the Bill of Rights. I embrace the tyranny of the majority.”
When uttered by a man running for president of the United States, such statements necessarily raise the question: What other kinds of tyranny does Romney embrace?
The California political establishment seems to have gone just a little crazy recently. A group has formed to spend millions of dollars to pass a ballot initiative--designed to change the way we send delegates to the electoral college to elect the President--that legally can have no effect whatsoever. Another group has formed to waste millions of dollars stopping them. I think I need to remind the people on both sides of two salient facts:
1) Article II, section 1 of the U.S. Constitution states
“Each state shall appoint, in such manner as the Legislature thereof may direct, a number of electors”
to the electoral college. That is, the Legislature of the state, and only the Legislature of the state (NOT the people of the state directly) gets to choose the manner in which the state selects delegates to the electoral college.
2) Article II of the California State Constitution describes the ballot initiative process. Here are some relevant excerpts:
"SEC. 8. (a) The initiative is the power of the electors to propose statutes and amendments to the Constitution and to adopt or reject them."
"SEC. 10. (a) An initiative statute or referendum approved by a majority of votes thereon takes effect the day after the election unless the measure provides otherwise. If a referendum petition is filed against a part of a statute the remainder shall not be delayed from going into effect.
(b) If provisions of 2 or more measures approved at the same election conflict, those of the measure receiving the highest affirmative vote shall prevail.
(c) The Legislature may amend or repeal referendum statutes. It may amend or repeal an initiative statute by another statute that becomes effective only when approved by the electors unless the initiative statute permits amendment or repeal without their approval.
(d) Prior to circulation of an initiative or referendum petition for signatures, a copy shall be submitted to the Attorney General who shall prepare a title and summary of the measure as provided by law.
(e) The Legislature shall provide the manner in which petitions shall be circulated, presented, and certified, and measures submitted to the electors."
So, here’s the crucial fact: If you look at Article II, Section 10 of the state constitution, what you find is that the constitution consistently and intentionally differentiates between two groups: “the electors” (the people voting on an initiative) and “the Legislature” (the elected folks in Sacramento). It does this precisely in the context of talking about how ballot initiatives work. Clearly, “the Legislature” and “the electors” are just not the same thing, and to repeat what I said above THE U.S. CONSTITUTION SAYS ONLY THE LEGISLATURE GETS TO DECIDE HOW WE ELECT A PRESIDENT.
The ballot initiative to make California’s presidential vote proportional, rather than winner take all, simply wouldn’t be worth the paper it’s written on. If the people of the state of California decide to do this (and I don’t necessarily think it’s a horrible idea, to be honest), it will require a statute passed by the California state legislature. (Or, an amendment to the U.S. Constitution, followed by a ballot initiative.)
The most worrying thing about all this is that none of the media's coverage of the story mentions that the initiative is unconstitutional. It's as if Arnold Schwarzenegger and Madeleine Albright were running for president, and all the news coverage focused on their policies without mentioning that neither one can constitutionally hold the office. Maybe political reporters should be required to prove they've taken 8th grade civics before they're allowed to publish stories...
Of the many clues scattered in the earlier books that hint toward the end of the series and the overall shape of its story arc, the one that seems most suggestive to me is Dumbledore's assertion to Harry that his secret weapon, the thing that Harry has that Voldemort lacks, is love. It may sound somewhat precious, a pastel sentiment that will have no bearing on the actual plot, until you remember that Harry's life was saved initially and Voldemort was almost destroyed by a spell that drew its power from love. Harry's mother sacrificed her own life to save his and to kill Voldemort. Voldemort survived only because of his horcruxes, and one reason the spell was so effective against him was that he was incapable of understanding it, or more precisely the source of its power. So love has already been used as a literal weapon once in the series that we know of. Moreover, like all good mysteries—and the Potter series is clearly much closer to being a mystery series than it is to being a fantasy series—one of the primary challenges to the author is to make sure that statements like Dumbledore's pay off in the end. Otherwise, the series will fail to cohere, and Dumbledore's wisdom will be called into question in a way that it hasn't yet.
The only way I can see to translate Dumbledore's statement into a satisfying conclusion is really pretty obvious: Harry must in the seventh book cast the exact same spell that his mother cast on him initially, and under very similar circumstances. He will sacrifice his life to save someone he loves from Voldemort's death spell, reflecting the spell back and killing Voldemort in the process. (Or, at the very least, he must attempt to do so. There's always the possibility that someone else will save him from his own sacrifice, although from a dramatic point of view, that would represent a major cop-out on Rowling's part.)
So, there you have it: Voldemort will try to kill someone Harry loves, he'll cast his mother's sacrifice-your-life-to-save-another spell, and he and Voldemort will both die in the same moment. That's my prediction. We'll find out in two and a half months just how far off base I was...
Edit: Turns out I was really, really close. Except instead of casting the spell on one loved-one, he cast it on everyone at Hogwarts. (Oh, and he managed to die without actually dying...)
The presidency of George W. Bush has revealed, or at least made more apparent, one of the great open secrets of our system of government: It only works as it is designed to work when people in positions of power act in good faith. In particular, there are many ways in which the constitutional system of checks and balances and the separation of powers—aspects of U.S. constitutional law that are drummed into us from our earliest civics classes—are mere ideals. Like friendships (to borrow an analogy from Stanley Cavell), they exist only when we are loyal to them.
Two examples should suffice:
1) Article I of the U.S. Constitution gives Congress
the sole responsibility and sole authority for making “rules concerning
[wartime] captures on land and water.”
Any designation of, say, a new category of detainee called “unlawful
enemy combatants” must therefore come from Congress. The executive branch of our government lacks the power to
create such a category. The Bush
Administration, however, created a whole slough of new rules concerning wartime
captures, including different rules for lawful and unlawful combatants. Congress said nothing in response, and
the rules existed and were enforced for five years before the Supreme Court finally pointed out that
the “war on terror” was being conducted in a blatantly unconstitutional
manner. In response, the
Administration magnanimously announced that it would comply with the Court’s
ruling. But ask yourself this:
what if it hadn’t? What recourse
would anyone have had to force compliance? There’s impeachment, sure, but so long as the Congress was
in the hands of the President’s party, that wasn’t going to happen.
2)
The Foreign Intelligence Surveillance Act explicitly states that the President
has the power to order surveillance that bypasses the secret FISA courts “for a
period not to exceed fifteen calendar days following a declaration of war by
the Congress.” That means that—if
we are generous and assume that the congressional order authorizing the use of
force to respond to the 9/11 attacks counts as a declaration of war—President
Bush had the authority to bypass the FISA court from September 14, 2001,
through September 29, 2001. As of
September 30, he lost the power to conduct a surveillance program that we now
know he continued to conduct illegally for years. And when that program was finally revealed, the only major
response of Congress was to scramble to authorize it, rather than hold the
President accountable for his refusal to honor the law. As occurred in the first case as well,
scholars and pundits even came forward to construct specious arguments
defending the legitimacy of the President’s actions.
Good
faith. Intellectual honesty. A belief that the Constitution is more
important than the agenda of any one leader—no matter who that leader may be,
or how important their agenda.
These are the traits that this country should be looking for in its next
president. This is not an abstract
point. As my examples above
demonstrate, when a president decides not to honor our constitutional
principles, those principles can dissolve like a friendship betrayed.
Nor
is this a Left/Right issue. Whoever inherits the office of the presidency from its
current holder will inhabit an office whose powers and scope are significantly
greater than they were in 2000, because President Bush has systematically
worked to expand them. As of now,
that expansion is arguably his most significant and most frightening legacy. The power is there, and the next
president must decide what to do with it—whether to embrace it and exercise it
to accomplish great things (but at what price?), or to curtail it at their own
expense but for the good of the country.
Any president of any ambition will find at some point during their
tenure that their ambition is in direct conflict with the constitutional limits
on presidential power. For many
leaders, it is a defining moment, but never moreso than it is about to be. The next president of the United States
will stand at a tipping point. The
changes Bush has wrought are not yet irreversible, but a decision on the part of
his successor to retain them might well be. It would create a momentum that any future presidents would
have great difficulty resisting.
For that reason, what we need, now more than ever as we strive to define and restore the proper scope to the office of the presidency, is someone with the integrity and the intellectual courage to accept limits on their power, with the moral authority to give weight to those limits, so that they will last into the future, and with the creativity and perseverance to accomplish their goals without needing to erode our government's most fundamental principles.
If you find yourself, as you read this, thinking that it is a not-so-cleverly disguised argument in favor of Barack Obama, given that he’s clearly the only candidate who fits this description, then I can only respond: If you feel that way, maybe you should vote for him.
Considered
on its own, John Patrick Shanley's 2004 play Doubt (currently playing in
Los Angeles with the original Broadway cast) is one of my favorite types of
artworks: modest, understated, and perfect. It features a complex
but self-effacing set design (including brilliant lighting) and a cast of only
four actors, who give nuanced, dramatic performances—performances that are
sometimes extremely forceful but never seem to be "star turns." Despite their lack of flash—no, let’s
assume for the sake of argument that the world is a just place: Because of
their lack of flash, two members of the play’s cast won Tony awards (Cherry
Jones for Best Actress and Adriane Lenox for Best Featured Actress), as did
director Doug Hughes and the play itself.
Doubt tells the story of a
nun—the principal of a Catholic school—who believes with absolute certainty and
for no particularly good reason that a priest is abusing one of the children in
her care. Cherry Jones’s Sister
Aloysius is a walking contradiction: She distrusts emotion and believes in
following and conveying rational principles in education (rather than, say,
attempting to cultivate enthusiasm for the subject matter in one’s
students). At the same time,
however, the fact that her certainty cannot be rationally derived or supported
fails to give her the slightest pause.
Meanwhile, Father Flynn’s understandably emotional reactions to Sister
Aloysius’s accusations are as easy to read as signs of guilt as they are to
interpret as sincere protestations of innocence.
The
genius of the play lies in these two performances, which leave an audience
unable to rely on either reason or emotion as infallible touchstones of
truth. Shanley slowly, subtly
forecloses both rationality and irrationality as means of deciding what to believe,
leaving an audience with nothing but doubt. The crux of this process is Adriane Lenox’s performance as
Mrs. Muller, the mother of the boy who may or may not be a victim of abuse. Her sincere and reasoned attempt to do
what she feels is in the best interests of her son comes off as simultaneously
laudable and deplorable, adding another layer of uncertainty to the drama. Indeed, by the time the play’s
startlingly unsurprising final line is spoken, its audience has been
inaugurated into a world in which uncertainty is part of the constant
background noise of existence.
So Doubt is an
impressive accomplishment in itself.
It is only in conjunction with the playwright's Preface, published
in the program, that Doubt's true
significance becomes clear, however.
“There’s a symptom apparent in America right now,” Shanley writes. “We are living in a culture of extreme
advocacy, of confrontation, of judgment, and of verdict. Discussion has given way to
debate. Communication has become a
contest of wills.” Shanley’s
diagnosis of this symptom is startling in its obviousness: As a culture, he
says, we have realized that none of us knows anything, but no one is willing to say so out
loud. As a result, we cling more
and more stridently, more and more shrilly, to increasingly empty truths. Contemporary American culture is
characterized by doubt.
Admittedly, part of the reason I like this diagnosis is
that it jibes so well with my training as a leftist cultural critic—one of the
few segments of the population trained not only to admit to doubt, but to
embrace it and use it as an impetus for intellectual work. Perhaps that’s why members of the Right
thinks we are so crazy and insidious: doubt to them must be denied, confronted,
overcome, utterly defeated. It
should certainly not be valued.
Shanley, though, does value it: He sees doubt as a fulcrum of change, an
opportunity to reevaluate our beliefs, our values, our selves. “When a man feels unsteady,” he says,
“when he falters, when hard-won knowledge evaporates before his eyes, he’s on
the verge of growth….Doubt requires more courage than conviction does, and more
energy; because conviction is a resting place and doubt is infinite—it is a
passionate exercise.”
Doubt turns out to
be an exercise itself. It pointedly places
its spectators in a position of unresolved uncertainty. Its hope seems to be that, on
some possibly inarticulable level, some spectators may recognize in that position
a mirror image of their relation to the world at large, allowing the play to become a mechanism of
change in their lives. Perhaps I
was too quick to list modesty as one of the play’s great virtues. But it is modest: To the extent that it claims to address
cultural uncertainty, it is the uncertainty of 1964, the year in which Doubt is
set. Even then, it is hardly
accidental that Doubt takes place
entirely within the cloistered walls of a church and its religious school. Shanley insists through his choice of
subject and staging that the political is the intimately personal, that the
most important doubts we confront are those that are most concrete but also
most private. And it is the public
articulation of those private doubts that is the most dangerous, the most painful,
and the most vitally important thing we can do.
The Military Commissions Act of 2006, just passed by Congress and signed into law by President Bush, provides that
"No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination" (28 U.S.C. 2241[e][1]).
This provision denies habeas corpus relief to any noncitizen who might possibly be an enemy combatant, while placing no burden upon the U.S. military to make that determination in a timely (much less speedy) fashion. It is one of the biggest mistakes made in a war already famous for the nearly incomprehensible size of its mistakes. Let's look at why this is the case.
First, a few statistics. According to a study conducted at Seton Hall University, 55 percent of the people who have been detained at Guantanamo Bay since September of 2001 had committed no hostile acts against the United States or its allies. Only 5 percent of the Guantanamo detainees were captured by American forces. A staggering 86 percent, on the other hand, were turned over to the United States by Pakistani or Northern Alliance forces during a time when the United States government was offering large rewards for Taliban fighters or other enemy combatants. It is now known that many of the people imprisoned for years by the United States were simply kidnapped innocents who were sold to us by unscrupulous mercenaries who wanted money. The only charges against them were the vague assertions of these mercenaries that they were associated with the Taliban or Al Qaeda. Indeed, according to the study, 60 percent of Guantanamo detainees are there because they are "associated with" terrorist groups, rather than being members of those groups or fighting for those groups.
The percentage of innocent people held at the now-notorious Abu Ghraib prison while it was under American control is harder to determine. Estimates (by the United States Army and by interrogators who worked in the prison—hardly bleeding-heart liberal sources) seem to vary from 30 percent to 65 percent. Everyone agrees that many of the people held in Abu Ghraib just happened to be standing on the wrong street at the wrong time and got swept up in raids by U.S. forces. Once their innocence was determined by individual interrogators on the ground, however, it took months or even years for those in command to agree to their release.
Now, we could talk about these situations in Iraq, Afghanistan, and Guantanamo from the point of view of justice, but that may seem to many to be beside the point. War is hell, after all, and if a few hundred or a few thousand individuals are imprisoned, interrogated, and abused for a few years before ultimately being set free, that may just be the price of protecting the United States from its enemies. Except that the point of view ventriloquized in the last sentence is unspeakably, unforgivably naive. The actions in the early days of the war in Iraq of U.S. forces still struggling to understand a new kind of war, still struggling to ascertain their proper role in the post-9/11 world, are entirely forgivable, but they were also detrimental to the overall mission to defeat terrorism. Every single one of the individuals mistakenly detained, mistreated for years, and ultimately released became a recruitment tool for the enemy, if they did not become enemy combatants themselves in response to their treatment at our hands. Now that we understand the situation, it is incumbent upon us to do something to rectify it, so that we do not continue to act against our own interests in this fashion. Giving wartime detainees habeas corpus rights would be unprecedented, but it would also provide a crucial mechanism to empower the many innocents caught in the system, allowing them to challenge their detention before they become poster children for Al Qaeda and the multifarious Iraqi insurgency.
To deny these detainees habeas corpus relief may or may not be legal, but whatever its legality, it is quite certainly criminally negligent behavior by our leaders. It represents a refusal to institute what would be a vital tool in the war on terror. Let me be very clear: The law President Bush signed last week will ultimately have two effects: It will create more terrorists, and it will cause more Americans to be murdered. And unless and until the government understands that simple, incontrovertible truth, its ability to win this "war on terror" will be precisely zero.
There was another 9/11
in Iraq last month. There's one every month now, and August, despite
initial estimates to the contrary, looks to have been no exception. The
Iraqi National Health Ministry's official report of September 7, 2006, listed the
number of Iraqis killed in acts of violence in Baghdad alone at 1,536.
That tracks with the national average of at least 3,000 dead each month.
Again, that's 3,000 civilians killed by terrorists—another 9/11—each
month. As shocking as that statistic may be, when you consider the
populations of the two countries—about 300 million for the United States, about
27 million for Iraq—it becomes even more significant, since 3,000 people is a
larger percentage of the Iraqi population by an order of magnitude.
Given the number of
Iraqi civilians murdered by terrorists each month, there can be no doubt
of the fundamental assertion of the Bush Administration that Iraq is a central
battlefield of the “war on terror.” What tends to be forgotten is that it
is a battlefield of our creation. Four years ago, Iraq was not a
battlefield of the war on terror. Now, it is. The American
invasion of Iraq, the conscious decision not to send enough troops to
accomplish a full military occupation after Saddam’s fall (a decision that we now
know allowed the insurgency to develop), and the wholesale dismantling of the
Iraqi army all combined to turn Iraq into the perfect battlefield.
Terrorists—both domestic and foreign—were all too happy to take advantage of
the opportunity provided. Some flocked to Iraq from other
nations. Some took up arms against the invaders that had promised them
jobs if they did not resist the invasion, then reneged on the promise.
Some fought for religion, some for ideology, and some simply for money.
Whatever their motives, however, they all shared one thing in common: They were
there, not here.
The location of the battlefield, lest we forget, was the explicitly stated
justification for its creation from the beginning. The idea was simple:
We have to fight the terrorists “over there,” so we won’t have to fight them
here. This argument, fairly pervasive in 2003 but largely defunct for the
last year or two, has suddenly made a comeback. In late August, President
Bush was quoted in the Associated
Press as saying “We leave before the mission is done, the
terrorists will follow us here.” Many Republicans running for Congress
immediately took up the same argument. There are two problems with this
argument, one abstract and moral, and one very practical and concrete.
To begin with the practical: Every member of the Administration and every
public figure who supports the war in Iraq agrees—without exception, so far as
I am aware—that it is not merely a physical battle but an ideological one as
well. We have all heard the phrase, over and over again, that we are
fighting for the “hearts and minds” of the Iraqi people. A similar
sentiment lay behind a strategy paper released by the White House on September
5: "There will continue to be challenges ahead, but along with our
partners, we will attack terrorism and its ideology and bring hope and freedom
to the people of the world. This
is how we will win the war on terror."
Now—and
this may be an obvious point, but I have yet to hear anyone else making it—there is a fairly significant contradiction between the two sentiments
expressed above. On the one hand, the Administration says that we are
fighting for the “hearts and minds” of people in Iraq, and Iraqis are our
"partners" and the recipients of our gift of "hope and
freedom." On the other hand, that same Administration believes that
it is appropriate to declare in the national press that we need to fight
terrorism in Iraq so we won’t have to fight it on our own shores. The
problem is this: Once you have announced to the world that, as far as you
are concerned, an Iraqi life is worth less than an American life—once you have
announced that Iraqi civilians are dying so that American civilians won’t have
to—you have already lost the battle for Iraq’s bare tolerance, much less its
hearts, minds, and partnership. The sheer cynicism of the statement would
be shocking, if any level of political cynicism still retained its power to
shock.
There is another problem, possibly irrelevant in a world that has wholly
embraced realpolitik, but it must be pointed out, if only for appearance’s
sake. By any objective measure, the people of Iraq are more oppressed,
longer-suffering, poorer, and more downtrodden than are the people of the
United States. They are, in short, weaker than we are. It is quite simply
immoral, by any system of morality worthy of the name, to sacrifice the weak to
protect the strong. The decision to use the Iraqi people essentially as
human shields to protect the U.S. civilian population may make perfect sense
from the point of view of patriotism and nationalism, but from the point of
view of morality, it is simply indefensible. This is something upon which
Christians, Jews, Muslims, Hindus, Buddhists, secular humanists, and people
with no nameable system of beliefs who happen to have hearts beating in their
chests should all be able to agree. Hell, even Nietzsche, that champion of
the values of the strong and despiser of the weak, would have assented to this
sentence: We do not sacrifice the weak to protect the strong. Ever. If
the United States government wishes to continue to stand for the values of hope and freedom in the world, it would do well to remember
that.
Copyright © 2006-2010 Andy Perry, all rights reserved
