Archive for November, 2003

Bush’s Infuriating and Ennobling Moral Clarity

Sunday, November 23rd, 2003

In the popular fictional epic The Lord of the Rings, four Hobbits or Halflings, venture forth from the Shire and help usher in a new age by playing an indispensable role in the defeat of the evil forces of Mordor. However, when they return to the Shire they find that it has fallen under the tyranny of thugs and ruffians. After a few feeble attempts at resistance, the Hobbits who had remained in the Shire had been intimidated and demoralized. They were demoralized in the sense of being disheartened and having lost confidence in their ability to stand up in defense of themselves and their homes. They were also literally “de”-“moralized” in the sense of loosing their moral bearing, of not appreciating the difference between good and evil enough to understanding there are some values worth risks to personal safety.

When Frodo, Sam, Merry, and Pippin finally returned to the Shire they brought with them not only the fighting skills they acquired during their quest, but a confidence and moral integrity that informed and underpinned their unwillingness to be bullied or intimidated, to be forced to work in the service of thugs, or to yield their personal freedom. They brought with them the most precious treasure of their adventures: moral clarity. Ultimately, the four organized their fellow Hobbits to expel the “Chief” and his minions.

J. R. Tolkien, of course, was not writing geopolitical epic, but a morality tale of good and evil, about the temptations of evil and the ease of acquiescence to malevolence. Nonetheless, he illustrates important themes about the nature of evil, applicable to whether dealing with the Dark Lord of Mordor, 20th century Nazism, or 21st century Islamofascism. Perhaps the most important realization is that moral clarity is necessary for triumph over evil.

President George Bush’s most important virtue is his moral clarity; a clarity that is infuriating to his adversaries whose moral vision has blurred into shades of gray. Bush’s clarity is not fathomable to opponents whose fiery red passions for good have faded into the soft pastels of “getting along.” In his November 19th speech at White Hall Palace, the President explained that terrorist attacks, particularly against civilian targets are “…part of the global campaign by terrorist networks to intimidate and demoralize all who oppose them.” In this context, Bush probably used the word demoralize in the sense of dishearten, but demoralization in the sense of a loss of moral clarity is perhaps a more apt description.

It is still not clear whether the West and other liberal democracies will be able to summon the moral confidence and courage to overcome rather than attempt an accommodation with Islamofascism, an accommodation doomed to failure. Perhaps, we are culturally exhausted after a world war against Nazism, a forty-year marathon struggle against global Communism, to have much moral energy left to confront the challenge of Islamofascism. Unfortunately, we are seeing signs of a flagging of moral fortitude and only a flaccid moral consensus.

While self-criticism and self examination remain important and salutary elements of free societies, when there is more anger by some on the Left that Bush did not manage to acquire full United Nations sanction for the liberation of Iraq, than relief for release of the Shiites and the Kurds from ethnic and religious oppression, we must recognize a loss of moral clarity.

We know now that formerly trusted news sources like the BBC deliberately misrepresented the progress of the Iraq War, and CNN guiltily concedes that it withheld information about Iraq in order to gain access to the regime. When at the same time neither organization focuses on the 150 newspapers publishing in freedom now in circulation in Iraq, we must recognize a loss of moral clarity.

When protesters bravely confront American and British police, while not venturing to the streets of Baghdad and Kabul (or even the streets of Washington and London) to protest bombing of civilians, we must recognize the loss of moral clarity. Where are all the human shields on the Left who vowed to protect Iraqis with their persons? Why are these human shields not standing in front of United Nations or Red Crescent installations in Iraq?

When civilians are deliberately targeted by Islamofascists and American arrogance or globalization is blamed, we must recognize a loss of moral clarity. Islamofascists are deathly afraid of Western democracies because they know that given a choice, Muslims like others will embrace freedom and modernity. Do we recognize the same truth?

In many ways, Britain and the United States are out of moral step with (actually several strides head of) much of the rest of Europe who have forgotten the moral underpinnings of their freedom and consequent affluence. France and Germany have smugly embraced realpolitik as if it were a sign of maturity and statesmanship. They engage in desperate accommodation with illiberal forces while paying lip service to human rights. By contrast as Bush explained, “The United States and Great Britain share a mission in the world beyond the balance of power or the simple pursuit of interest. We seek the advance of freedom and the peace that freedom brings.” Where some see arrogance, others seem moral clarity, humble and modest in the assumption that freedom is not just the privilege of a few. France and Germany have been demoralized in both senses of the word.

President John Kennedy in a different context once proclaimed, “Let every nation know, whether it wishes us well or ill, that we shall pay any price, bear any burden, meet any hardship, support any friend, oppose any foe, in order to assure the survival and the success of liberty.” The fact that this assertion which underpinned US Cold War fortitude would now be considered by many to be an arrogant self assertion of American values of liberty evidences a loss, particularly on the Left who once embraced Kennedy, of moral clarity.

Fortunately, in the past leaders there arose leaders like President Franklin Roosevelt and Prime Minister Winston Churchill in World War II and President Ronald Reagan and Prime Minister Margaret Thatcher in the Cold War who were able to instill a sense of courage and commitment to liberal ideals. Their efforts were sufficient to overcome doubt and lassitude. It is still an open question whether Bush and Prime Minister Tony Blair will be able to duplicate the success of their predecessors. Their meeting last week confirms their commitment to protect the West from terrorism by expanding the empire of liberty. We might have thought that the assault of September 11 would have washed away self doubt and uncertainty about the necessity of routing out the forces of terror. However, time has attenuated indignation and certainty. The question is whether Bush and Blair can now lead their countries and bring the rest of the world with them on their quest.

Imperial Judiciary Decides on Religious Instruction

Sunday, November 23rd, 2003

Constitutional democracies and their associated individual liberties can be buttressed by the force of written law, but ultimately the people and those who are entrusted with leadership in democratic institutions must respect individual liberties. No dam of written words can stand indefinitely against the perpetual force of individual and collective actions undermining individual liberties. The problem is that it is natural for human beings to desire outcomes some so badly that they rationalize ignoring individual rights. Honoring the rights of others rests on a respect and tolerance for the capacity of others to decide for themselves, even when we disagree. Tolerance can only be a virtue if practiced with respect to activities with which there is strong disagreement.

This natural tendency to ignore individual liberties in the pursuit of what some consider laudable goals accounts for the erosion of Fourth Amendment protections in pursuit of the War on Drugs and the sacrifice of First Amendment protections at the altar of campaign finance reform and abortion rights. To this we can now add circumscription of religious freedom in pursuit of the gay rights agenda.

Denver District Court Judge John W. Coughlin is probably a nice enough fellow who, I imagine, fancies himself as a compassionate modern-day Solomon adjudicating thorny issues. However, there are places that not even judges should intrude and Coughlin has taken it upon himself to control the religious instruction a parent provides her child.

It all started about eight years ago when Dr. Cheryl Clark adopted a little girl to raise with her lesbian partner Elsey McLeod. In 2000, Clark converted to Christianity and left the relationship, leaving the disposition of the child a point of conflict. Since Clark had been the only one to officially adopt the child, it would seem that McLeod had no parental rights whatsoever. Clark voluntarily offered visitation privileges, but McLeod sued for joint custody.

Judge Coughlin expanded a legal doctrine usually reserved for abandoned or neglected children who have been cared for by a third party. Clark declared that McLeod was a “psychological parent” who was entitled to share custody and equal parenting time. This decision represents an interesting issue in its own right. A principled extension of Coughlin’s jurisprudence would confer equal parental rights to a live-in boyfriend who neither sires nor adopts a child. However, for our purposes here, let us concede McLeod’s parental rights, regardless of serious reservations concerning the legal principle applied.

Given that McLeod and Clark have radically divergent religious views, Coughlin granted Clark authority over the young girl’s religious instruction. Coughlin overstepped his authority when he instructed that Clark, “make sure that there is nothing in the religious upbringing or teaching that the minor child is exposed to that can be considered homophobic.” Clark’s order was a presumptuous and vague injunction preventing Clark from exercising her First Amendment religious privileges. “Homophobic” itself is a problematic term. The term suggests fear but has been pulled and stretched to apply to anything that does not strictly conform to the gay rights agenda.

It is not uncommon in divorce cases for judges to constrain a custodial parent from disparaging the other parent. There is no indication that Clark made a point of disparaging her former partner, but even if she had, the restriction on religious instruction exceeds the judge’s constitutional authority. Consider the logic of the principle Coughlin is applying. If one parent divorces another for infidelity, does that mean that the custodial parent cannot attend or provide religious instruction to the child in a church that honors religious prohibitions against infidelity, lest the non-custodial parent would be indirectly cast in an ignoble light? If a non-custodial parent is a soldier, does that give a judge the authority to instruct a custodial parent to not attend a pacifist church? How far will judges like Coughlin go in deciding upon the specific religious doctrines that are suitable for instruction?

This case is on appeal. The US Constitution can only protect us to the extent that government institutions, particularly the Courts, honor constraints on arbitrary government power. Judge Coughlin’s ruling is an example of a good person yielding to the temptation of conforming to popular prejudices.

Dealing with Combatants in Guantanamo

Sunday, November 16th, 2003

One sometimes wishes that the Left would lavish a proportional amount of attention on the 11 million prisoners suffering under Fidel Castro as the warden of an entire island as they do to the 660 prisoners held at the US Base in Guantanamo, Cuba. In the last Administration, the Left glowed with smug satisfaction when the only one forced by the United States to enter Cuba was a young boy at gun point. But that was another issue for another time.

What is the appropriate way of dealing with individuals captured on the battlefield in Afghanistan and now detained at Guantanamo? The laws of war were agreed to in an age when powers, especially European powers, fought pitched battles between groups of soldiers. The rules specifying the treatment of captured combatants arose in a context of a clearer separation between soldiers and civilians.

Soldiers are afforded immunity from normal civil laws against killing and destruction. In exchange for this immunity, they are also liable to be the indiscriminate targets of other soldiers. Under the rules of war, civilians are also protected. They are not normally the objects of attacks. This is not to say that civilians are never killed, but under the rules of war, they are not to be the deliberate objects of aggression. When these two categories get blurred, risks increase for both soldiers and civilians, particularly civilians. If captured, soldiers become liable for criminal sanctions. If civilians are viewed as combatants then the dangers to those civilians that do not participate in aggression grows as it becomes more difficult for regular soldiers to distinguish combatants from civilians.

Nonetheless, over time it has become clear that some civilians do join in battle as irregulars. This was a particular problem in the US Civil War when the distinction between civilians, militia members, and soldiers blurred. Even regular soldiers were not always properly uniformed. According to Daniel Moran of the Center for Contemporary Conflict, the Union under the direction of Columbia University law professor Francis Lieber formulated the “Lieber Code.” “It declared that civilians who had organized themselves into `free corps’ in order to resist advancing Union forces should be treated as combatants, even if not in uniform. Clandestine violence by individuals remained subject to summary justice, however, as did any form of civilian resistance once an occupation had been established. ”

This distinction has been recognized and given international sanction in the Geneva Accords, Convention III Relative to the Treatment of Prisoners of War, (1949). Not only are uniformed soldiers to be accorded prisoner of ware status, so too are journalists and service personal, like truck drivers who service the soldiers.

“Members of other militias and members of other volunteer corps ” [when captured are to be treated as prisoners of war] … “provided that such militias or volunteer corps, including such organized resistance movements, fulfill the following conditions:

  • that of being commanded by a person responsible for his subordinates;
  • that of having a fixed distinctive sign recognizable at a distance;
  • that of carrying arms openly;
  • that of conducting their operations in accordance with the laws and customs of war.”

The Taliban soldiers and members of Al Qaeda have clearly not conformed with the last three conditions and have probably forfeited their right to prisoner of war status.

There really are two choices for the US. The Guantanamo detainees are either civilians or combatants, legal or not. If we treat them as civilians they would have to go through the judicial process and be prosecuted as criminals. This option would have two down sides. It would impose a large prosecutorial burden on the US. Were the US to impose punishment on what others might see as prisoners of war, it could also open the US for criticism. If captured, our soldiers might then be treated as criminals rather than combatants. So the continual treatment of these detainees as prisoners of war, perhaps indefinitely, would seem to be the appropriate course. Of course, there are some other issues. Under prisoner of war status for these irregulars, is the US required to make an accounting of prisoners and to whom? There is no formal government to make a report to. Could such an accounting provide important intelligence to Al Qaeda that relies exclusively on intelligence and deception?

Article I, Section 8 of the US Constitution grants Congress the power “To define and punish piracies and felonies committed on the high seas, and offenses against the law of nations.” They should exercise this authority. Although the Administration would certainly balk at any formal procedure for dealing with the irregular prisoners of war that might limit their discretion, Congress should statutorily spell out procedures for dealing with such irregular prisoners. The military has obviously been working out an ad hoc set of procedures. Statutory measures would protect the military from charges of arbitrariness and emphasize American commitment to the rule of law.

More Pieces in the Puzzle of Pre-War Iraq

Sunday, November 9th, 2003

Oscar Wilde once claimed that “The past is of no importance. The present is of no importance. It is with the future that we have to deal.” No observation could be in greater error. The past provides a context to understand the present and the present is our only opportunity to change the future. This is what makes a recent article in the Washington Post about what Iraqi captives are saying about pre-war Iraq so interesting.

Apparently former Iraqi deputy prime minister Tariq Aziz has been spilling his guts to American interrogators now that the US has removed Aziz’s family from Iraq for protection. Of course, whatever Aziz says now must be carefully weighed against independent sources of information. He may still have reasons to not tell the entire truth. Nonetheless, what Aziz has been saying goes a long way toward helping to understand the thinking of the Iraqi regime before the war.

For example, given Bush’s obvious determination to resort, if necessary, to the military option in dealing with Iraq, why was Iraq not more forthcoming with respect to UN inspectors? Given how difficult it has proven to search out weapons of mass destruction after the war, Saddam Hussein could have averted a war by allowing unfettered inspections and by providing complete documentation of WMD programs. What ever happened to the anthrax that the Hussein regime acknowledged that it had?

One reason may be that Hussein did not take the prospect of military action from the US seriously enough. According to Aziz, the French and the Russians, through back channels, had assured the Iraqis that they could stop an US military action through the UN Security Council. At the same time that the French were assuring American Secretary of State Colin Powell they were serious about holding Iraq to its obligations under UN resolutions, the French were undermining both the UN and the US. We can only wonder how different Iraq may have behaved if instead the French and the Russians had consistently warned Hussein that this time he really had to fully comply with the UN resolutions. How differently would have Hussein acted if he realized that his back was truly against the wall? It is also possible that Hussein was so self-delusional that even if the French had provided better advice, he would have ignored it.

Even on the eve of the war, when US military action was imminent, Hussein was assured his regime could survive. According to Aziz, the French were certain that the US would begin the war, like Gulf War 1991, with a prolonged air campaign. If Hussein could just hold out against the air assault, the French and the Russians could broker a cease fire. Indeed, when the land assault began, Hussein was convinced that it was simply a diversionary tactic and did not commit troops from the north to the defense of Baghdad. It seems that both the US and the Iraqis were ill-served by the French.

It is also unclear from Aziz’s interrogations the quantities of WMD Iraq possessed before the war. However, Aziz did suggest that Hussein was less concerned about the chemical WMD stockpiles because he could always recreate them so long as he maintained the infrastructure to do so. This perspective is lent credence by the fact that laboratories suitable for this have been discovered by David Kay and his team of inspectors. Hussein was intent on acquiring what was, from his perspective, more difficult to obtain than WMD. Hussein wanted long range missiles. He was perhaps negotiating with the North Koreans for the appropriate technology. Kay investigators have found considerable evidence of Hussein’s efforts to obtain long range delivery systems.

Slowly the pieces of the Iraq puzzle are coming together. There are still large gaps. Indeed the unknown gaps in the puzzle are probably larger than the areas that have been fully fully assembled. Incrementally, day-by-day we can expect to learn what was going on in Iraq before the war. Learning about pre-war Iraq puts us one step closer to dealing with the Iraq of the present, an Iraq that is not yet freed from its tyrannical past.

The Supreme Court by the Numbers

Sunday, November 2nd, 2003

Statistical analysis has been successfully applied to all manner of social issues from demographics to economics. The Oakland Athletics and the Boston Red Sox have even demonstrated that breaking baseball down to the numbers can help compensate for a limited player payroll. It is also possible to misapply statistical analysis to mislead. Sometimes this is done in error, sometimes with a deliberate intention to deceive. Public opinion polls are perhaps the most common way to lend a patina of statistical certainty to partisan persuasion. Joel Best has even written a book, Damned Lies and Statistics: Untangling Numbers from the Media, Politicians, and Activists. Hence, when someone successfully and honesty applies information theory to a political question it deserves special attention.

In June of this year in an article in the Proceedings of the National Academy of Science , Dr. Lawrence Sirovich of the Department of Biomathematical Sciences at the Mount Sinai School of Medicine attempted to mathematically characterize decisions by the second William Rehnquist Court. This Court is comprised of the members since the last appointment to the Court of Stephen Breyer in 1994 by President Bill Clinton. Sirovich included in his analysis only those decisions for which there were nine clear separate decisions. Some cases are just issued “by the court” with no delineation of the vote. In other cases, one judge may have recused himself or herself. In still other cases, judges may split their decision with respect to different parts of a case. In all, he retained about 70% of the cases.

Sirovich then considered two possible models of the court: an “omniscient” court and a “platonic” court. In the omniscient limit each judge knows the appropriate outcome and all nine judges arrive at the same decision. All court decisions are then 9-0 judgments. In the opposite, platonic limit, all the cases are extremely close and the likelihood of each judge voting a particular way is 50%. There is no way to predict which way a judge will vote on a platonic court. Of course the real statistics lie somewhere in between these extremes.

Nonetheless, it is remarkable that 47% of the Rehnquist Court’s decisions are unanimous 9-0 judgments, reflecting a tendency to an omniscient court. If the issues in this many cases are so clear that the Court has no difficulty arriving at a unanimous conclusion, it is a shame that these cases have to be adjudicated by the Supreme Court.

Not surprisingly justices have ideologies and perspectives that force them, like grapes, to group into bunches. It is no secret that Justices Antonin Scalia and Clarence Thomas concur 93% of the time. Of course, this includes the 47% of the time that all the Justices agree. This common Scalia-Thomas agreement has led to some off-color jokes about how Thomas does not think for himself. However, we hardly ever hear about the 90% of the time that Justices Ruth Bader Ginsberg and David Souter vote together. Is anyone asking whether Ginsberg, who is a junior member of the Court with respect to Souter, is not up to her position and just relying on the guidance of Souter in her decisions? Of course not.

Given the overwhelming number of times that justices agree with one another, it would be unfair to characterize any justice as “extreme” or “out of the mainstream.” Justice John Stevens is by far the justice most likely to march the path of a lone dissenter. This is hardly evidence that Stevens is, depending on your perspective, a bold independent thinker or a dangerous maverick. He was the lone dissenter 23 times out of 377 cases. Rehnquist, Scalia, and Thomas were sole dissenters only three times a piece.

If all decisions were 9-0 judgments, having nine justices is redundant. A single justice could perform the same job with equal skill. If the judges acted independently, we would still require all nine judges to arrive at the same set of results. The correlation of decisions by judges, Sirovich suggests, would require only 4.5 to 5 independent judges. This result is a mathematical one, not a practical recommendation.

The composition of the Court and potential Court appointments have been the object of much consternation on the part of the political Left and the Right. Democrats in the Senate are willing to sustain a filibuster in order to pour sand in the Bush judge appointment apparatus. It is the lower court judges that Bush is submitting now that may provide potential Supreme Court justices in the future. What Sirovich makes clear is that there are statistically few cases that contribute to this rancor. Nonetheless, it is those high-intensity cultural issues like abortion, affirmative action, the proper roles of religion and the state — cases that do not have much of a statistical impact on raw decision numbers — that drive our perception of the Court and individual justices.