White House Vs. Supreme Court: It's Getting Ridiculous
Posted by Jan Crawford
For the life of me, I just don't get why the White House continues to try to pick a fight with the Supreme Court. I've suggested before that perhaps it's a sign President Obama intends to tap an outsider when John Paul Stevens retires, so he can beat the drum that the Court is out of touch with everyday Americans.
But after Chief Justice John Roberts made some entirely reasonable remarks yesterday -- and White House Press Secretary Robert Gibbs just had to respond -- it's now getting ridiculous.
Whether the White House has a short-term or long-term strategy or no strategy at all, it's flat-out absurd and ill-advised for the administration to think it should always have the last word. It's like my 6-year-old: "I don't LIKE your idea. I like MY idea."
It wasn't enough that Mr. Obama, for the first time in modern history, took a direct shot at the Supreme Court in his State of the Union address, when he slammed the justices for their recent campaign finance reform decision. Six of them looked on -- including the author of the opinion, key swing vote Anthony Kennedy -- while Democrats jumped up to whoop and holler.
All that, of course, was too much for Justice Samuel Alito, who shook his head and silently mouthed, "not true."
The next day, the White House just couldn't let it rest. It again had to have the last word. It put out a "fact sheet," trying to prove it was Mr. Obama -- not Justice Alito -- who was right.
Now the Chief Justice, speaking yesterday at the University of Alabama Law School, has weighed in. Responding to a question from a clearly insightful Alabama law student, Roberts said he thought the whole scene was "very troubling."
"To the extent the State of the Union has degenerated into a political pep rally, I'm not sure why we're there," Roberts said.
He didn't slam Mr. Obama for singling out the Court, as some have done. He said people have a right to criticize the Court if they disagree with a decision.
"I have no problems with that," Roberts said. "On the other hand, there is the issue of the setting, the circumstances and the decorum. The image of having the members of one branch of government standing up, literally surrounding the Supreme Court, cheering and hollering while the court - according the requirements of protocol - has to sit there expressionless, I think is very troubling."
And he's right. The justices have to sit there with their hands in their laps and their faces blank. They can't be seen as taking sides -- they may have to decide some of these issues some day. Justice Scalia has said they look like bumps on a log. And that's why some justices won't go to the State of the Union address -- and why none of them probably ever will again after this year's dressing down from the president.
But once again, the White House has to try to get the last word. Last night, Gibbs struck back at Roberts.
"What is troubling is that this decision opened the floodgates for corporations and special interests to pour money into elections - drowning out the voices of average Americans," Gibbs said. "The president has long been committed to reducing the undue influence of special interests and their lobbyists over government. That is why he spoke out to condemn the decision and is working with Congress on a legislative response."
Maybe it's because he's an Auburn guy and the Chief Justice was talking to law students at the University of Alabama (or, as we like to say, "the University"), but Gibbs should have let this go.
This administration is going to have to be dealing with this Supreme Court for at least three more years, if not more. Its lawyers are going to have to appear before these justices to defend presidential initiatives or federal laws in case after case, big and small.
I'm not suggesting they won't get a fair shake simply because the White House is trying to stick it to the conservative justices. George Bush repeatedly got slapped down by this Court, even though he never lashed out at the justices.
But at some point -- and I'd say that point is now -- the Obama Administration is working against its interests.
They'd do well to remember that on a lot of the issues they care about, the Supreme Court gets to decide. No matter how much they stomp their feet and shout, "I don't LIKE your idea; I like MY idea," the Supreme Court is going to get the last word.
Wednesday, March 10, 2010
March 10, 2010: Those 1600 Units in East Jerusalem
Posted today by David Hazony in Contentions:
The New York Times has taken the plunge. In a report today about the Israeli government’s decision to build 1,600 housing units in the Ramat Shlomo neighborhood — which, like most of Jerusalem, lies across the “Green Line” separating pre- and post-1967 territory, the NYT headline proudly refers to the “new settlements” that are, according to another NYT headline about the responses to the declaration, “clouding” the visit of Vice President Biden to the Middle East, who had arrived to announce the renewal of indirect talks between Israel and the Palestinians. An earlier version of the piece, which has since been edited, described Jerusalem as home to “thousands of settlers.” This whole terminology is fairly new, but we can hardly blame the Times.
It is, after all, the official position of the U.S. government.
Netanyahu is denying that he knew of the decision, and the NYT piece takes him at his word. Many commentators in Israel are not so quick to believe it, seeing in his denial a classic Bibi move to fake Left, go Right, deny and obfuscate whenever it serves his purposes. Assuming he really did know about the decision, why did he do it? And if he didn’t, why doesn’t he intervene to stop it?
The NYT puts the blame on his coalition partners: ”when he formed his coalition a year ago,” we are told, “he joined forces with several right-wing parties, and has since found it hard to keep them in line.” This is, of course, a bizarre distortion: Netanyahu chose his coalition partners as a product of their strength, which in turn reflects what the voters actually wanted on issues like these. It’s also a distortion because the left-wing Labor party, which is in the coalition, doesn’t seem to be pulling out any time soon. And it’s a distortion because the Kadima party, the leading opposition party and the only alternative to Netanyahu’s coalition partners, was founded on a platform that included the indivisibility of Jerusalem.
What Netanyahu knows, and Biden apparently does not, is that the vast majority of Israelis, including those who favor a land-for-peace deal with the Palestinians, do not, and will never, look at Jerusalem as a settlement or at residents of its neighborhoods as “settlers.” We can fully understand why Biden might have thought the move to be “precisely the kind of step that undermines the trust we need right now.”
At a time when he’s trying to show the American public that he and the president are capable of bringing a new era of peace in the region, such an announcement certainly does not make his job easier. But unlike the U.S., Israel is an actual party to the negotiations and has a right to draw red lines. One such line that must not be crossed is undoing the unification of Jerusalem that happened in 1967 and that still captures the imagination and commitment of both the great majority of Israelis and a very large number of Diaspora Jews.
Jerusalem is home to more than 700,000 citizens, of whom two-thirds are Jews. It has granted far greater and more liberal access to non-Jews worshiping at its shrines than the Palestinians have ever done with regard to Jewish (and Christian) freedom in the territories it controls. This is a great deal to ask in time of ongoing war.
One of the worst things about the Oslo Accords was the logic that said, “Let’s take care of the easy things first, and wait on the hard issues until later.” And so, while the Palestinians were allowed to create a heavily armed, ideologically belligerent, terror-supporting government in the territories Israel vacated, Israel gained nothing in terms of security, while the “hard issues” like Jerusalem and the repatriation of millions of Palestinians remained up in the air, not as questions to be resolved, but as threats hanging over Israelis’ heads: You can give us these, and face demographic and symbolic decimation; or you can refuse, and face a renewal of violence.
When it became clear to Arafat that Israel had no intention of giving in on these core issues, all the “trust” that had been built was suddenly meaningless. He launched the second intifada, and the rest is too well known.
In making the move on Jerusalem, the Israeli government is trying to avoid the ambiguities that were the undoing of Oslo. Anyone hoping for a successful negotiation leading to the establishment of a Palestinian state alongside Israel, they are saying, had better forget about the division of Jerusalem. Sometimes, it’s the timing that drives the point home.
The New York Times has taken the plunge. In a report today about the Israeli government’s decision to build 1,600 housing units in the Ramat Shlomo neighborhood — which, like most of Jerusalem, lies across the “Green Line” separating pre- and post-1967 territory, the NYT headline proudly refers to the “new settlements” that are, according to another NYT headline about the responses to the declaration, “clouding” the visit of Vice President Biden to the Middle East, who had arrived to announce the renewal of indirect talks between Israel and the Palestinians. An earlier version of the piece, which has since been edited, described Jerusalem as home to “thousands of settlers.” This whole terminology is fairly new, but we can hardly blame the Times.
It is, after all, the official position of the U.S. government.
Netanyahu is denying that he knew of the decision, and the NYT piece takes him at his word. Many commentators in Israel are not so quick to believe it, seeing in his denial a classic Bibi move to fake Left, go Right, deny and obfuscate whenever it serves his purposes. Assuming he really did know about the decision, why did he do it? And if he didn’t, why doesn’t he intervene to stop it?
The NYT puts the blame on his coalition partners: ”when he formed his coalition a year ago,” we are told, “he joined forces with several right-wing parties, and has since found it hard to keep them in line.” This is, of course, a bizarre distortion: Netanyahu chose his coalition partners as a product of their strength, which in turn reflects what the voters actually wanted on issues like these. It’s also a distortion because the left-wing Labor party, which is in the coalition, doesn’t seem to be pulling out any time soon. And it’s a distortion because the Kadima party, the leading opposition party and the only alternative to Netanyahu’s coalition partners, was founded on a platform that included the indivisibility of Jerusalem.
What Netanyahu knows, and Biden apparently does not, is that the vast majority of Israelis, including those who favor a land-for-peace deal with the Palestinians, do not, and will never, look at Jerusalem as a settlement or at residents of its neighborhoods as “settlers.” We can fully understand why Biden might have thought the move to be “precisely the kind of step that undermines the trust we need right now.”
At a time when he’s trying to show the American public that he and the president are capable of bringing a new era of peace in the region, such an announcement certainly does not make his job easier. But unlike the U.S., Israel is an actual party to the negotiations and has a right to draw red lines. One such line that must not be crossed is undoing the unification of Jerusalem that happened in 1967 and that still captures the imagination and commitment of both the great majority of Israelis and a very large number of Diaspora Jews.
Jerusalem is home to more than 700,000 citizens, of whom two-thirds are Jews. It has granted far greater and more liberal access to non-Jews worshiping at its shrines than the Palestinians have ever done with regard to Jewish (and Christian) freedom in the territories it controls. This is a great deal to ask in time of ongoing war.
One of the worst things about the Oslo Accords was the logic that said, “Let’s take care of the easy things first, and wait on the hard issues until later.” And so, while the Palestinians were allowed to create a heavily armed, ideologically belligerent, terror-supporting government in the territories Israel vacated, Israel gained nothing in terms of security, while the “hard issues” like Jerusalem and the repatriation of millions of Palestinians remained up in the air, not as questions to be resolved, but as threats hanging over Israelis’ heads: You can give us these, and face demographic and symbolic decimation; or you can refuse, and face a renewal of violence.
When it became clear to Arafat that Israel had no intention of giving in on these core issues, all the “trust” that had been built was suddenly meaningless. He launched the second intifada, and the rest is too well known.
In making the move on Jerusalem, the Israeli government is trying to avoid the ambiguities that were the undoing of Oslo. Anyone hoping for a successful negotiation leading to the establishment of a Palestinian state alongside Israel, they are saying, had better forget about the division of Jerusalem. Sometimes, it’s the timing that drives the point home.
Sunday, March 7, 2010
Will on Guns, SCOTUS and the U.S. Constitution
How the Constitution, filtered by the high court, affects guns
By George F. Will
Sunday, March 7, 2010; A17
It is said, more frequently than precisely, that the reasons the Supreme Court gives for doing whatever it does are as important as what it does. Actually, the court's reasons are what it does. Hence, the interest in the case the Supreme Court considered last week.
It probably will result in a routine ruling that extends a 2008 decision and renders dubious many state and local gun-control laws. What could -- but, judging from the justices' remarks during oral argument, probably will not -- make the ruling momentous would be the court deciding that the two ordinances at issue violate the 14th Amendment's "privileges or immunities" clause. Liberals and conservatives submitted briefs arguing, correctly, that this clause was intended to be a scythe for slicing through thickets of state and local laws abridging fundamental liberties.
The Second Amendment says: "A well-regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed." Until 2008, the court had never clarified whether the prefatory clause makes this right conditional: Does the amendment protect an individual's right to own firearms, or does it protect that right only in connection with a state's right to organize a militia?
In 2008, the court struck down a D.C. law that effectively banned possession of handguns even in an owner's home -- it banned all guns not kept at businesses, or disassembled or disabled by trigger locks. The court held, 5 to 4, that the Second Amendment protects individuals' rights.
But the court answered only the question then posed, which concerned the federal enclave of the District of Columbia. Left unanswered was whether the amendment protects that right against severe restrictions by state and local laws.
The oral argument concerned ordinances in Chicago and suburban Oak Park that are indistinguishable from the D.C. law. The court probably will overturn those ordinances by holding that another part of the 14th Amendment -- the guarantee that no state shall deny liberty "without due process of law" -- "incorporates" the Second Amendment. The justices evinced scant interest Tuesday in resurrecting the "privileges or immunities" clause by revisiting an incoherent decision rendered in 1873.
To the drafters of the 14th Amendment, the phrase "privileges or immunities" was synonymous with "basic civil rights." But in 1873, the court held that only some of the rights enumerated in the Bill of Rights restrict states by being "incorporated" into the 14th Amendment's "due process" clause.
Since 1897, the court has held, with no discernible principle, that some rights enumerated in the Bill of Rights are sufficiently fundamental to be "incorporated" but others are not. This doctrine bears the oxymoronic name "substantive due process." Substance is what process questions are not about.
If the court now "incorporates" the Second Amendment right via the "due process" guarantee, that will be progress because it will enlarge the sphere of protected liberty. And even Justice Antonin Scalia, who recognizes that "substantive due process" is intellectual applesauce, thinks it is too late to repudiate 137 years of the stuff. Still, three points argue for using the "privileges or immunities" scythe against the two gun ordinances.
First, protecting the individual's right to keep and bear arms for self-defense was frequently mentioned by those who drafted and ratified the 14th Amendment, the purpose of which was to protect former slaves and their advocates from being disarmed by state and local governments determined to assault their security and limit their autonomy.
Second, the central tenet of American political philosophy is that government is instituted not to bestow rights but to protect preexisting rights, aka natural rights -- those essential to the flourishing of our natures. In its 2008 decision, the court affirmed that the Second Amendment did not grant a right to keep and bear arms, it "codified a pre-existing right."
Third, "privileges or immunities" are all those rights that, at the time the 14th Amendment was ratified, were understood to be central to Americans' enjoyment of the blessings of liberty.
Liberals might hope and conservatives might fear that a revivified "privileges or immunities" clause wielded by liberal justices would breed many new "positive rights" -- to welfare, health care, etc. But conservatives know that "substantive due process" already has such a pernicious potential. And they believe that if -- a huge caveat -- it remained tethered to the intent of its 19th-century authors, the "privileges or immunities" clause would be useful protection against the statism of the states.
By George F. Will
Sunday, March 7, 2010; A17
It is said, more frequently than precisely, that the reasons the Supreme Court gives for doing whatever it does are as important as what it does. Actually, the court's reasons are what it does. Hence, the interest in the case the Supreme Court considered last week.
It probably will result in a routine ruling that extends a 2008 decision and renders dubious many state and local gun-control laws. What could -- but, judging from the justices' remarks during oral argument, probably will not -- make the ruling momentous would be the court deciding that the two ordinances at issue violate the 14th Amendment's "privileges or immunities" clause. Liberals and conservatives submitted briefs arguing, correctly, that this clause was intended to be a scythe for slicing through thickets of state and local laws abridging fundamental liberties.
The Second Amendment says: "A well-regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed." Until 2008, the court had never clarified whether the prefatory clause makes this right conditional: Does the amendment protect an individual's right to own firearms, or does it protect that right only in connection with a state's right to organize a militia?
In 2008, the court struck down a D.C. law that effectively banned possession of handguns even in an owner's home -- it banned all guns not kept at businesses, or disassembled or disabled by trigger locks. The court held, 5 to 4, that the Second Amendment protects individuals' rights.
But the court answered only the question then posed, which concerned the federal enclave of the District of Columbia. Left unanswered was whether the amendment protects that right against severe restrictions by state and local laws.
The oral argument concerned ordinances in Chicago and suburban Oak Park that are indistinguishable from the D.C. law. The court probably will overturn those ordinances by holding that another part of the 14th Amendment -- the guarantee that no state shall deny liberty "without due process of law" -- "incorporates" the Second Amendment. The justices evinced scant interest Tuesday in resurrecting the "privileges or immunities" clause by revisiting an incoherent decision rendered in 1873.
To the drafters of the 14th Amendment, the phrase "privileges or immunities" was synonymous with "basic civil rights." But in 1873, the court held that only some of the rights enumerated in the Bill of Rights restrict states by being "incorporated" into the 14th Amendment's "due process" clause.
Since 1897, the court has held, with no discernible principle, that some rights enumerated in the Bill of Rights are sufficiently fundamental to be "incorporated" but others are not. This doctrine bears the oxymoronic name "substantive due process." Substance is what process questions are not about.
If the court now "incorporates" the Second Amendment right via the "due process" guarantee, that will be progress because it will enlarge the sphere of protected liberty. And even Justice Antonin Scalia, who recognizes that "substantive due process" is intellectual applesauce, thinks it is too late to repudiate 137 years of the stuff. Still, three points argue for using the "privileges or immunities" scythe against the two gun ordinances.
First, protecting the individual's right to keep and bear arms for self-defense was frequently mentioned by those who drafted and ratified the 14th Amendment, the purpose of which was to protect former slaves and their advocates from being disarmed by state and local governments determined to assault their security and limit their autonomy.
Second, the central tenet of American political philosophy is that government is instituted not to bestow rights but to protect preexisting rights, aka natural rights -- those essential to the flourishing of our natures. In its 2008 decision, the court affirmed that the Second Amendment did not grant a right to keep and bear arms, it "codified a pre-existing right."
Third, "privileges or immunities" are all those rights that, at the time the 14th Amendment was ratified, were understood to be central to Americans' enjoyment of the blessings of liberty.
Liberals might hope and conservatives might fear that a revivified "privileges or immunities" clause wielded by liberal justices would breed many new "positive rights" -- to welfare, health care, etc. But conservatives know that "substantive due process" already has such a pernicious potential. And they believe that if -- a huge caveat -- it remained tethered to the intent of its 19th-century authors, the "privileges or immunities" clause would be useful protection against the statism of the states.
Saturday, March 6, 2010
A Few Belated Comments on The Hurt Locker
The Hurt Locker is a great movie in the cinematic tradition of dogma: unadorned, without sentiment or fakery
Bigelow depicts men under threat from all angles; and the men, their weapons cocked, are attuned to everything—a squeak, a pop, a wire snaking out from under a mound of debris. The movie doesn’t lead with the paralysis of the guilt-ridden. The horror is there, but under the rush.
The film follows the Explosive Ordnance Disposal unit, a bomb squad that shows up to dismantle devices of varying degrees of sophistication and deadliness. After an overture in which a cautious sergeant is killed, his replacement shows up: Staff Sergeant William James, a an adrenaline junkie wild man. “That is some hot shit!” a colonel repeats, but Sanborn working under James, thinks he’s dangerous and and considers fragging him.
A bomb squad in a war zone presents dizzying variables: Each time out, James has a new puzzle to solve (Where’s the trigger? Is there a timer or are insurgents standing by with a button to push?), while Sanborn and the jittery specialist Owen Eldridge pirouette and focus and refocus their sights: “Young man at nine o’clock holding a video camera.” “Three guys at six o’clock.” “Cell phone!” (the last a potential detonator). Do you shoot them? Shoot into windows with kids nearby? Civilians can freak out from the pressure, too—freezing in their cars or striding up to overanxious troops with idiotic pleasantries. (“Where are you from—California?”)
The characters matter a great deal. James for all his wildness defuses bombs with no wasted motion. He is what he is, and the war--a world of hurt, a hurt locker, is what it is -- hell on earth, deadly, chaotic, cruel, soul-crushing, and, in some cases, to borrow the title of Chris Hedges's book from which the opening quote comes, a force that giving meaning. Sanborn is a by-the-book soldier mostly, but a man who’d take honest joy in killing James—who does, at times, pose a threat to the unit’s safety. Eldridge is an unholy mess, wholly reactive and therefore undefended.
The movie is not pro or anti the Iraq war: it shows the war as the thing it is from the soldiers' point of view. Soldiers are scared as well they should be. Even James, the "wild man," has emotional collapses, not in the field but rather when he tries to do something, on his own to avenge a kid's death or get back at suicide bombers of an oil rig. It all gets him nowhere, because there's nothing to be done, and he's beaten down by the war's immense cruelty and incomprehensibiity. He's better off dpersonalizing himself and sticking to what he needs to do--defusing bombs.
Bigelow depicts men under threat from all angles; and the men, their weapons cocked, are attuned to everything—a squeak, a pop, a wire snaking out from under a mound of debris. The movie doesn’t lead with the paralysis of the guilt-ridden. The horror is there, but under the rush.
The film follows the Explosive Ordnance Disposal unit, a bomb squad that shows up to dismantle devices of varying degrees of sophistication and deadliness. After an overture in which a cautious sergeant is killed, his replacement shows up: Staff Sergeant William James, a an adrenaline junkie wild man. “That is some hot shit!” a colonel repeats, but Sanborn working under James, thinks he’s dangerous and and considers fragging him.
A bomb squad in a war zone presents dizzying variables: Each time out, James has a new puzzle to solve (Where’s the trigger? Is there a timer or are insurgents standing by with a button to push?), while Sanborn and the jittery specialist Owen Eldridge pirouette and focus and refocus their sights: “Young man at nine o’clock holding a video camera.” “Three guys at six o’clock.” “Cell phone!” (the last a potential detonator). Do you shoot them? Shoot into windows with kids nearby? Civilians can freak out from the pressure, too—freezing in their cars or striding up to overanxious troops with idiotic pleasantries. (“Where are you from—California?”)
The characters matter a great deal. James for all his wildness defuses bombs with no wasted motion. He is what he is, and the war--a world of hurt, a hurt locker, is what it is -- hell on earth, deadly, chaotic, cruel, soul-crushing, and, in some cases, to borrow the title of Chris Hedges's book from which the opening quote comes, a force that giving meaning. Sanborn is a by-the-book soldier mostly, but a man who’d take honest joy in killing James—who does, at times, pose a threat to the unit’s safety. Eldridge is an unholy mess, wholly reactive and therefore undefended.
The movie is not pro or anti the Iraq war: it shows the war as the thing it is from the soldiers' point of view. Soldiers are scared as well they should be. Even James, the "wild man," has emotional collapses, not in the field but rather when he tries to do something, on his own to avenge a kid's death or get back at suicide bombers of an oil rig. It all gets him nowhere, because there's nothing to be done, and he's beaten down by the war's immense cruelty and incomprehensibiity. He's better off dpersonalizing himself and sticking to what he needs to do--defusing bombs.
Wednesday, March 3, 2010
Some Sanity
Israel is no more rogue than America
By Andrew Roberts
Published: March 2 2010 20:25 Financial Times
Is state-sanctioned assassination justifiable, or does it somehow de-legitimise the state that undertakes it? Two articles in this newspaper last week, by Henry Siegman and David Gardner, have been violently critical of Israel in the wake of the assassination of the Hamas arms smuggler Mahmoud al-Mabhouh in Dubai on 19 January.
Mr Siegman wrote of how “Israel’s colonial ambitions” and “checkpoints, barbed wire and separation walls” were “turning Israel from a democracy into an apartheid state”, thereby creating a “looming global threat to the country’s legitimacy”. Two days later Mr Gardner wrote of how Israel’s “militarist extroversion” over the Dubai murder demonstrated an “Israeli preference for instantly satisfying executive solutions to complex political and geopolitical problems” which would “widen the international battle-space for tit-for-tat attacks” and “encourage the perception that [Israel] is a rogue state”.
Both commentators are completely wrong. All that the Dubai operation will do is remind the world that the security services of states at war – and Israel’s struggle with Hamas, Fatah and Hizbollah certainly constitutes that – occasionally employ targeted assassination as one of the weapons in their armoury, and that this in no way weakens their legitimacy. As for the “separation walls” and checkpoints that one sees in Israel, the 99 per cent drop in the number of suicide bombings since their erection justifies the policy. There is simply no parallel between apartheid South Africa – where the white minority wielded power over the black majority – and the occupied territories, taken by Israel only after it was invaded by its neighbours. To make such a link is not only inaccurate, but offensive. If Arab Israelis were deprived of civil and franchise rights, that would justify such hyperbole, but of course they have the same rights as every Jewish Israeli.
Far from having any colonial ambitions, Israel wants nothing more than to live peaceably within defensible borders. But equally it demands nothing less.
Furthermore, rather than some kind of knee-jerk “preference for instantly satisfying executive solutions”, the decision to kill Mahmoud al-Mabhouh – assuming it was sanctioned, planned and carried out by Mossad alone, which is anything but clear at this stage – would have been minutely examined from every political and operational angle.
Yet sometimes complex political and geopolitical problems do require the cutting of the Gordian knot, and this was one such.
When Britain was at war, Winston Churchill sanctioned the assassination by its Special Operations Executive of the SS General Reinhard Heydrich, the capture (and killing if necessary) of General Heinrich Kreipe on Crete; ditto Erwin Rommel. Just as with some Mossad operations, such as the disaster in Amman in 1997 when agents were captured after failing to kill Khaled Meshal of Hamas, not all Churchill’s hits were successful. But the British state was not de-legitimised in any way as a result.
The intelligence agents of states – sometimes operating with direct authority, sometimes not – have carried out many assassinations and assassination attempts in peacetime without the legitimacy of those states being called into question, or their being described as “rogue”. In 1985 the French Deuxième Bureau sank Greenpeace’s Rainbow Warrior trawler, killing photographer Fernando Pereira, without anyone denouncing France as a rogue state.
Similarly, in 2006, polonium 210 was used to murder Alexander Litvinenko without Putin’s Russia being described as “illegitimate”. That kind of language is only reserved for Israel, even though neither Pereira nor Litvinenko posed the danger to French and Russian citizens that was posed to Israelis by the activities of Mahmoud al-Mabhouh.
The reason that such double standards still apply – more than six decades after the foundation of the state of Israel – is not because of the nature of that doughty, brave, embattled, tiny, surrounded, yet proudly defiant country, but because of the nature of its foes. Even though one has to be in one’s seventies to remember a time when Israel didn’t exist, nevertheless there are still those who call the country’s legitimacy into question, employing anything that happens to be in the news at the time – such as this latest assassination – to try to argue that Israel is not a real country, and therefore doesn’t really deserve to exist. Real rogue states such as North Korea might be loathed and criticised, but even they do not have their very legitimacy as a state called into question because of their actions.
Those who wish to understand Israel’s actions and put them in their proper historical context should read Michael Burleigh’s cultural history of terrorism, Blood and Rage. Burleigh quotes a senior Mossad agent saying after the Munich Olympics massacre of 11 Israeli athletes: “If there was intelligence information, the target was reachable and if there was an opportunity, we took it. As far as we were concerned we were creating a deterrence, forcing them to crawl into a defensive shell and not plan offensive attacks against us.”
Is that attitude so very different from the pre-emptive targeted assassination of Taliban leaders that Nato carries out by flying drones in Afghanistan and Pakistan today? Yet are Messrs Siegman and Gardner going to call into question America’s legitimacy? No, that insult is reserved for only one country: Israel.
By Andrew Roberts
Published: March 2 2010 20:25 Financial Times
Is state-sanctioned assassination justifiable, or does it somehow de-legitimise the state that undertakes it? Two articles in this newspaper last week, by Henry Siegman and David Gardner, have been violently critical of Israel in the wake of the assassination of the Hamas arms smuggler Mahmoud al-Mabhouh in Dubai on 19 January.
Mr Siegman wrote of how “Israel’s colonial ambitions” and “checkpoints, barbed wire and separation walls” were “turning Israel from a democracy into an apartheid state”, thereby creating a “looming global threat to the country’s legitimacy”. Two days later Mr Gardner wrote of how Israel’s “militarist extroversion” over the Dubai murder demonstrated an “Israeli preference for instantly satisfying executive solutions to complex political and geopolitical problems” which would “widen the international battle-space for tit-for-tat attacks” and “encourage the perception that [Israel] is a rogue state”.
Both commentators are completely wrong. All that the Dubai operation will do is remind the world that the security services of states at war – and Israel’s struggle with Hamas, Fatah and Hizbollah certainly constitutes that – occasionally employ targeted assassination as one of the weapons in their armoury, and that this in no way weakens their legitimacy. As for the “separation walls” and checkpoints that one sees in Israel, the 99 per cent drop in the number of suicide bombings since their erection justifies the policy. There is simply no parallel between apartheid South Africa – where the white minority wielded power over the black majority – and the occupied territories, taken by Israel only after it was invaded by its neighbours. To make such a link is not only inaccurate, but offensive. If Arab Israelis were deprived of civil and franchise rights, that would justify such hyperbole, but of course they have the same rights as every Jewish Israeli.
Far from having any colonial ambitions, Israel wants nothing more than to live peaceably within defensible borders. But equally it demands nothing less.
Furthermore, rather than some kind of knee-jerk “preference for instantly satisfying executive solutions”, the decision to kill Mahmoud al-Mabhouh – assuming it was sanctioned, planned and carried out by Mossad alone, which is anything but clear at this stage – would have been minutely examined from every political and operational angle.
Yet sometimes complex political and geopolitical problems do require the cutting of the Gordian knot, and this was one such.
When Britain was at war, Winston Churchill sanctioned the assassination by its Special Operations Executive of the SS General Reinhard Heydrich, the capture (and killing if necessary) of General Heinrich Kreipe on Crete; ditto Erwin Rommel. Just as with some Mossad operations, such as the disaster in Amman in 1997 when agents were captured after failing to kill Khaled Meshal of Hamas, not all Churchill’s hits were successful. But the British state was not de-legitimised in any way as a result.
The intelligence agents of states – sometimes operating with direct authority, sometimes not – have carried out many assassinations and assassination attempts in peacetime without the legitimacy of those states being called into question, or their being described as “rogue”. In 1985 the French Deuxième Bureau sank Greenpeace’s Rainbow Warrior trawler, killing photographer Fernando Pereira, without anyone denouncing France as a rogue state.
Similarly, in 2006, polonium 210 was used to murder Alexander Litvinenko without Putin’s Russia being described as “illegitimate”. That kind of language is only reserved for Israel, even though neither Pereira nor Litvinenko posed the danger to French and Russian citizens that was posed to Israelis by the activities of Mahmoud al-Mabhouh.
The reason that such double standards still apply – more than six decades after the foundation of the state of Israel – is not because of the nature of that doughty, brave, embattled, tiny, surrounded, yet proudly defiant country, but because of the nature of its foes. Even though one has to be in one’s seventies to remember a time when Israel didn’t exist, nevertheless there are still those who call the country’s legitimacy into question, employing anything that happens to be in the news at the time – such as this latest assassination – to try to argue that Israel is not a real country, and therefore doesn’t really deserve to exist. Real rogue states such as North Korea might be loathed and criticised, but even they do not have their very legitimacy as a state called into question because of their actions.
Those who wish to understand Israel’s actions and put them in their proper historical context should read Michael Burleigh’s cultural history of terrorism, Blood and Rage. Burleigh quotes a senior Mossad agent saying after the Munich Olympics massacre of 11 Israeli athletes: “If there was intelligence information, the target was reachable and if there was an opportunity, we took it. As far as we were concerned we were creating a deterrence, forcing them to crawl into a defensive shell and not plan offensive attacks against us.”
Is that attitude so very different from the pre-emptive targeted assassination of Taliban leaders that Nato carries out by flying drones in Afghanistan and Pakistan today? Yet are Messrs Siegman and Gardner going to call into question America’s legitimacy? No, that insult is reserved for only one country: Israel.
Tuesday, March 2, 2010
By the Way: Kerr on the Non-Reverse Yoo
A Comment and a Question about the Investigation Into the Yoo/Bybee Torture Memos
Orin Kerr • March 1, 2010 2:36 am
I’ve mostly stayed out of the debate over whether John Yoo and Jay Bybee should be disciplined by DOJ for the so-called torture memos. I’ve read some news reports, and followed the issues a little bit, but I haven’t devoted nearly the number of hours to this issue that I would need to in order to blog helpfully about them. But I did have one comment and one question on the recent reports and debate about the memos and their ramifications.
1. The Comment. I would really really like to know what happened to John Yoo’s e-mails authored when he was writing the memos. I’ve long figured that Yoo’s e-mails would be the best way to figure out what he was thinking when he wrote the memos. The e-mails could answer if he was acting in good faith or if he was just being entirely results-oriented. And yet strangely, Yoo’s e-mails from that period are missing. I personally find that very suspicious.
Who deleted those e-mails, and when, and why? I would really like to know the answer to that.
2. The Question. My understanding is that the CIA authorized six techniques pursuant to the Yoo/Bybee memos. According to ABC News, they are:
1. Attention Grab: The interrogator forcefully grabs the shirt front of the prisoner and shakes them.
2. Attention Slap: An open-handed slap to the face aimed at causing pain and triggering fear.
3. Belly Slap: A hard open-handed slap to the abdomen. The aim is to cause pain, but not internal injury. Doctors consulted advised against using a punch, which could cause lasting internal damage.
4. Long Time Standing: This technique is described as among the most effective. Prisoners are forced to stand, handcuffed and with their feet shackled to an eye bolt in the floor, for more than 40 hours.
5. Cold Cell: The prisoner is left to stand naked in a cell kept near 50 degrees Fahrenheit (10 degrees Celsius), while being regularly doused with cold water.
6. Waterboarding: The prisoner is bound to an inclined board, feet raised and head slightly below the feet. Material is wrapped over the prisoner’s face and water is poured over them.
I think we all agree that the memos were wrong in concluding that waterboarding did not satisfy the legal definition of torture that is provided in 18 U.S.C. 2340 — “specifically intended to inflict” to inflict “the prolonged mental harm” caused by or resulting from:
(A) the intentional infliction or threatened infliction of severe physical pain or suffering;
(B) the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality;
(C) the threat of imminent death; or
(D) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality
Waterboarding seems to be pretty clearly forbidden under this definition, as it’s specifically intended to inflict the prolonged mental harm resulting from the threat of imminent death. That is, the point is to so totally and completely freak out the person by what they see as their own imminent death that they’ll do anything to make it stop.
While the statute is quite vague in a number of its key terms, I think the only fair reading is that waterboarding is prohibited by it.
With that long lead-up, here’s my question: Is there any consensus as to which of the other six techniques are also prohibited by this definition, and which ones are not? If there is no consensus, are there at least recognized schools of thought on the issue? I haven’t seen a lot of analysis of how these other techniques should be analzyed under the statutory language, but I would think that would be an important part of the overall debate.
Orin Kerr • March 1, 2010 2:36 am
I’ve mostly stayed out of the debate over whether John Yoo and Jay Bybee should be disciplined by DOJ for the so-called torture memos. I’ve read some news reports, and followed the issues a little bit, but I haven’t devoted nearly the number of hours to this issue that I would need to in order to blog helpfully about them. But I did have one comment and one question on the recent reports and debate about the memos and their ramifications.
1. The Comment. I would really really like to know what happened to John Yoo’s e-mails authored when he was writing the memos. I’ve long figured that Yoo’s e-mails would be the best way to figure out what he was thinking when he wrote the memos. The e-mails could answer if he was acting in good faith or if he was just being entirely results-oriented. And yet strangely, Yoo’s e-mails from that period are missing. I personally find that very suspicious.
Who deleted those e-mails, and when, and why? I would really like to know the answer to that.
2. The Question. My understanding is that the CIA authorized six techniques pursuant to the Yoo/Bybee memos. According to ABC News, they are:
1. Attention Grab: The interrogator forcefully grabs the shirt front of the prisoner and shakes them.
2. Attention Slap: An open-handed slap to the face aimed at causing pain and triggering fear.
3. Belly Slap: A hard open-handed slap to the abdomen. The aim is to cause pain, but not internal injury. Doctors consulted advised against using a punch, which could cause lasting internal damage.
4. Long Time Standing: This technique is described as among the most effective. Prisoners are forced to stand, handcuffed and with their feet shackled to an eye bolt in the floor, for more than 40 hours.
5. Cold Cell: The prisoner is left to stand naked in a cell kept near 50 degrees Fahrenheit (10 degrees Celsius), while being regularly doused with cold water.
6. Waterboarding: The prisoner is bound to an inclined board, feet raised and head slightly below the feet. Material is wrapped over the prisoner’s face and water is poured over them.
I think we all agree that the memos were wrong in concluding that waterboarding did not satisfy the legal definition of torture that is provided in 18 U.S.C. 2340 — “specifically intended to inflict” to inflict “the prolonged mental harm” caused by or resulting from:
(A) the intentional infliction or threatened infliction of severe physical pain or suffering;
(B) the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality;
(C) the threat of imminent death; or
(D) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality
Waterboarding seems to be pretty clearly forbidden under this definition, as it’s specifically intended to inflict the prolonged mental harm resulting from the threat of imminent death. That is, the point is to so totally and completely freak out the person by what they see as their own imminent death that they’ll do anything to make it stop.
While the statute is quite vague in a number of its key terms, I think the only fair reading is that waterboarding is prohibited by it.
With that long lead-up, here’s my question: Is there any consensus as to which of the other six techniques are also prohibited by this definition, and which ones are not? If there is no consensus, are there at least recognized schools of thought on the issue? I haven’t seen a lot of analysis of how these other techniques should be analzyed under the statutory language, but I would think that would be an important part of the overall debate.
The Reverse Yoo
Imagining a Reverse Yoo
Orin Kerr • March 1, 2010 12:14 pm
I have one more question to add on to yesterday’s post on John Yoo and the torture memos.
Let’s imagine what I’ll call a reverse Yoo. Here’s the hypo, with the question at the end.
The year is 2002, and the CIA has come to OLC seeking a legal opinion about what “enhanced interrogation techniques” are barred by the federal torture statute. Imagine that the federal torture statute is drafted a bit differently, however. Specifically, imagine that the fairest reading of the statute leads to the result that waterboarding and all the other techniques the CIA wanted to conduct are actually lawful. This result is not a slam dunk, because the statute is really vague.
But on balance, the most accurate and lawyerly reading of the statute produces the result that waterboarding and the other techniques were not actually prohibited by it.
Now we get to the reverse Yoo. Imagine that John Yoo is in charge of writing the memos, and he decides that his conscience will not allow him to write a memo approving waterboarding. Whatever the statute technically says, Yoo feels deep down that these techniques are torture: It would be unjust, un-American, and downright savage to let the CIA use these methods. John Yoo is not going to be like the Nazi lawyers who let the Holocaust occur: He must do the right thing to stop what he deeply believes is an obvious injustice.
So Yoo decides that he must write a memo concluding that these techniques are unlawful. Granted, he needs to get a bit creative to reach that result. He needs to stretch a legal term here, bend a legal term there. But by fudging the analysis when necessary, he manages to write a memo that gets to the result he wants to reach that the CIA is not permitted by law to engage in these interrogation methods. With OLC’s opinion issued, the CIA never uses these techniques and no one is ever waterboarded.
So here’s the question that I’d like to ask, specifically for the many readers who believe that the real John Yoo wrote the real memos in bad faith. How similar or different are your reactions to the real Yoo and the Reverse Yoo? Are you equally upset about the Reverse Yoo as you are the real Yoo, because in both cases he fudged the law to reach a result he personally wanted? Or is Reverse Yoo significantly less blameworthy, or even a hero, for having done the right thing and stopped waterboarding?
me:
Yoo and reverse Yoo are equally at fault if they fudge the law to advance their personal opinions.
If the area is gray, there will be an unavoidable overlap between bias and objective analysis, but generally legal opinions are not given as black and white propositions unless they can be. So the complexity will be reflected usually in the review of the arguments pointing in different directions and balanced, nuanced conclusions that weigh and reflect the probability of those arguments in tension with each other.
If the unique OCL task is to say, finally, what's legal, then, presuming a good faith effort at an objective legal conclusion, that conclusion and the concluder should be unimpeachable.
Bad faith--here, the conscious displacement of analysis with personal preference--is nothing but impeachable.
Finally, the answer for the legal analyst who can't live with the conlusion the law compels: resign.
Orin Kerr • March 1, 2010 12:14 pm
I have one more question to add on to yesterday’s post on John Yoo and the torture memos.
Let’s imagine what I’ll call a reverse Yoo. Here’s the hypo, with the question at the end.
The year is 2002, and the CIA has come to OLC seeking a legal opinion about what “enhanced interrogation techniques” are barred by the federal torture statute. Imagine that the federal torture statute is drafted a bit differently, however. Specifically, imagine that the fairest reading of the statute leads to the result that waterboarding and all the other techniques the CIA wanted to conduct are actually lawful. This result is not a slam dunk, because the statute is really vague.
But on balance, the most accurate and lawyerly reading of the statute produces the result that waterboarding and the other techniques were not actually prohibited by it.
Now we get to the reverse Yoo. Imagine that John Yoo is in charge of writing the memos, and he decides that his conscience will not allow him to write a memo approving waterboarding. Whatever the statute technically says, Yoo feels deep down that these techniques are torture: It would be unjust, un-American, and downright savage to let the CIA use these methods. John Yoo is not going to be like the Nazi lawyers who let the Holocaust occur: He must do the right thing to stop what he deeply believes is an obvious injustice.
So Yoo decides that he must write a memo concluding that these techniques are unlawful. Granted, he needs to get a bit creative to reach that result. He needs to stretch a legal term here, bend a legal term there. But by fudging the analysis when necessary, he manages to write a memo that gets to the result he wants to reach that the CIA is not permitted by law to engage in these interrogation methods. With OLC’s opinion issued, the CIA never uses these techniques and no one is ever waterboarded.
So here’s the question that I’d like to ask, specifically for the many readers who believe that the real John Yoo wrote the real memos in bad faith. How similar or different are your reactions to the real Yoo and the Reverse Yoo? Are you equally upset about the Reverse Yoo as you are the real Yoo, because in both cases he fudged the law to reach a result he personally wanted? Or is Reverse Yoo significantly less blameworthy, or even a hero, for having done the right thing and stopped waterboarding?
me:
Yoo and reverse Yoo are equally at fault if they fudge the law to advance their personal opinions.
If the area is gray, there will be an unavoidable overlap between bias and objective analysis, but generally legal opinions are not given as black and white propositions unless they can be. So the complexity will be reflected usually in the review of the arguments pointing in different directions and balanced, nuanced conclusions that weigh and reflect the probability of those arguments in tension with each other.
If the unique OCL task is to say, finally, what's legal, then, presuming a good faith effort at an objective legal conclusion, that conclusion and the concluder should be unimpeachable.
Bad faith--here, the conscious displacement of analysis with personal preference--is nothing but impeachable.
Finally, the answer for the legal analyst who can't live with the conlusion the law compels: resign.
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