Archive for April, 2009

Obama: Call Him Ishmael

Sunday, April 26th, 2009

Perhaps the most united this country has been in recent memory is in the forceful response to international threats  after the loss of more than 3000 Americans in the 9/11 attacks. The immediate response of the country was to secure itself and to pursue those responsible for the monstrous attacks. Had political expediency been a the primary motivation of the leadership, it would have been possible for Democrats and Republicans  to engage in finger pointing. Both sides instinctively understood that the country would not stand for bickering in a moment of extremus. President George W. Bush is as competitive a politician as you might want to find, but he is a decent person and decency made it impossible to try to put Clinton on the hook for  9/11.

President Barack Obama also seems like a genuinely decent person who wants to move on from divisive issues like aggressive interrogation of high-level Al Qaeda leadership. However, this innate decency gets muted by vicious Left-wing politics. The conflict between personal decency and acquiescence to the mean-spirited Left injured Obama in the presidential campaign when his pastor, Jeremiah Wright, was recorded in making vicious anti-American statements. Obama is falling into the same trap when he allows the “MoveOn” and “Daily KOs” crowd push Obama against the better angels of his nature to revive the controversy about aggressive interrogation.

The angry Left will not be happy unless there are some figurative heads on spikes from the Bush Administration. That is why the Obama Administration released the Department of Justice from the previous administration memos delineated what they consider the limits of aggressive interrogation. There is a line between showing a detainee a caterpillar he is afraid of and pulling out finger nails, and the lawyers were trying to define it. There is something dangerous and deeply antithetical to the legal process to pursue lawyers rendering legal opinions to the clients.

In the immediate aftermath of a devastating terrorist attack in the United States, Khalid Sheik Mohammad (KSM) , a top al Qaeda operative, was captured. The country was concerned about a next wave of attacks against the US. When questioned about this KSM, responded wit  “Soon, you will know.” Faced with this situation, the CIA asked the Justice Department for guidance on how aggressive the interrogations could become before crossing a line into torture. The Justice Department lawyers provided reasoned guidance and decided that waterboarding conducted under a limited set of rules is not torture. Both Democratic and Republican leadership in Congress were informed with apparently no dissent. This scenario hardly seems like the collapse of law. Rather is seems like a legally methodical approach for dealing with a dangerous situation. Imagine if under these circumstances, with a detainee indicating an upcoming attack, with legal opinion permitting the use of aggressive interogation techniques, and proper notification of Congress, the Bush Administration had opted against waterboarding. Further imagine that we were subsequently attacked. It is not clear that Bush would have been praised for his restraint.

Americans are a fair-minded lot at a majority of them oppose investigation of torture allegations.  The Captain Ahab-like pursuit of former Bush Administration officials is likely to be very divisive and likely to unnecessarily squander Obama’s considerable political capital. Moreover to be closely associated with weakness on dealing with terrorists is politically dangerous. Terrorists could get lucky and successfully execute an attack. An Administration not seen to use all the resources at its disposal will be severely damaged.

For his own and the country’s benefit, Obama needs to exert leadership and quash the single-minded pursuits of the angry Left. They can not be placated by  symbolic gestures. They are willing to damage the Obama presidency and divide the country for the prospect of getting a harpoon in the big white whales from the Bush Administration even if the Liberal ship-of-state is sunk.

Populism and the Media Revealed

Sunday, April 19th, 2009

This week  thousands of people in dozens of cities pulled together with disparate perspectives to protest on tax day, April 15. The protesters commandeered the metaphor of the 1773 Boston Tea Party, when nascent Americans protested the taxes on tea. What made the taxes then unacceptable was the fact that they were imposed by a far away power and Americans had no representation.

The present protests were more than about taxes they were also about increases in spending and a general angst that the events were spirally out of control. Clearly any imposed taxes are enacted by a legitimately elected authority. However this only mildly attentuates the notion that bailouts of financial companies and enormous increases in public spending represent powerful forces in government and the private sector taking advantage from the average person. In short, these parties represent a spasm of populism.

There are typically two kinds of populism, populism of the Left and populism of the Right. Populism on the Left believes that the average person is at the mercy of corporate interests.  Populism on the Right, asserts that the average person suffers under the predations of intrusive government. The recent Tea Party Protests are perhaps a confused amalgamation of both varieties of populism. Republicans are trying to jump in front of this  parade, but they are certainly not leading it. Democrats, who have recently embraced an anti-corporate populism, feel threatened by the movement because they represent the incumbent political party. The movement was instigated by economic uncertainty and it will likely wither or grow inverse relation to the short term perceived success of the economy.

The coverage of the Tea Party Protests, particularly by the cable news channels exposed more about those news networks than they did about protests. The reporters at Fox News were clearly sympathetic to the protesters. The individual protesters were generally portrayed favorably. The protesters returned the positive coverage by cheering Fox News personalities. This resembles the coverage of pro-choice rallies by the mainstream press. In this different  case, CNN and MSNBC were not nearly so sympathetic to Tea Party demonstrators. Reporters actively argued rather than interviewed protesters. Tea Party Protesters  accused reporters of selecting the most extreme protesters to paint the demonstrations in the worst possible light.

While one might forgive a reporter who temporarily looses her professional composure, how can one explain the comments by David Schuster of MSNBC. The protesters never called their protests ``tea bagging,” but rather “tea parties.” Nonetheless, some on the Left, obviously  familiar with the sexual implications of “tea bagging,” sought to simultaneously show their hipness in understanding the innuendo and ridicule the protesters. While such vulgarity might be expected from the more extreme blogs, David Schuster of MSNBC News in one single episode further lowered MSNBC standards (such as they are) when he he did a whole piece exploiting the sexual innuendo. The commentary sounded more like that of a smug 16-year old than the thoughts of a seasoned reporter. Now David Schuster may be personally delightful person to have dinner with and for all I know contribute large amounts of time and money to worthy causes, pets his dog when he arrives home, but may I suggest that this episode reveals more about David Schuster than it does about the Tea Party protesters.

Universal Jurisdiction as Universal Tyranny

Sunday, April 5th, 2009

One of the criticisms on the Left of President George W. Bush is that he exceeded his sovereign authority  to impose his moral and political will on other countries. We find out now that the real criticism is not that he exceeded his authority, but that he did not do so in the pursuit of Left-wing goals.

For example, a Left-wing Spanish judge (who earned his degree while serving time for his involvement in terrorism)  is seeking to indict American attorneys who advised President Bush. By extending his authority outside Spanish jurisdiction, this judge is invoking the controversial doctrine of Universal Jurisdiction. This doctrine holds that individual states can claim criminal jurisdiction outside of the state’s sovereignty, independent of the relationship of the crime to the country seeking prosecution.  Spanish Judge Baltasar Garzón is attempting to indict Bush’s advisers, including Attorney General Antonio Gonzalez, Douglas Feith, a former under Secretary of Defense, and Justice Department attorney John Yoo. Such an indictment would be in violation of the sovereignty guaranteed by the signatories of the United Nations Charter.

Universal jurisdiction was meant to apply to situations where there was no sovereign authority to enforce the law such as in piracy or the occupation of a country after a war where there is no other competent authority. The principle of sovereignty guaranteed in the UN charter prohibits the usurpation of sovereign authority simply because another country disapproves of the local jurisprudence.

There are some who argue that despite the legal technicalities, the need to pursue some individuals who commit especially heinous crimes is so great that it permits the use of means not normally accepted. How different is this argument that enhanced measures can be used to interrogate individuals when the lives of innocents are involved?

The Left does not really seek the application of international law, but its selective use to pursue political opponents. Some Spaniards like to specialize in the use of extraterritorial legal exploits in pursuing former Chilean right-wing dictator Pinochet, or Israeli officials, or Americans. There do not seem to be any “universal jurisdiction” indictments applied against  terrorist leader Osama Bin Laden. This may or may not be related to possibility that, Spanish lawyers involved in going after Bin Laden might find their personal safety threatened. The 2004 Madrid bombings illustrated how it is possible to intimidate the Spanish public. Leaving aside the questions of legal jurisdiction,  for a court to maintain moral authority it must avoid the reality and appearance of using its power for politically-motivated prosecutions. The Spanish fail this test.

When the US liberated Iraq it did so under the legal auspices of the original authorization by the United Nations to remove the Iraqis from Kuwait. The armistice that halted the hostilities as the US pursued Iraqi forces was based on certain agreements Iraq agreed to. These agreements were violated and the US had the clear authority to resume hostilities.

Would the Left (who by the way did not indict Saddam Hussein) have been happy if the United States found a federal judge somewhere to issue an indictment against Hussein. Then US could have then have called the Iraq operation as law enforcement effort? Would that have pleased the proponents of the cavalier use universal jurisdiction? Would the Left be pleased if a Conservative country issued indictments against other judges in other countries who ruled in favor of abortion rights. Would the Left be happy if the US issued indictments against Chinese officials for actions against Tibetans. Would the Left ever seek an indictment against President Bill Clinton who boasted that he ordered the assassination of Osama  Bin Laden without an judicial authority.

Perhaps the most pernicious problem with universal jurisdiction is that it may hinder important diplomatic efforts. Say for example, the international community can persuade a particular tyrant to step down and  allow a democratic government to take over in exchange for free passage and asylum in a third country. If that particular tyrant is concerned about universal jurisdiction, he or she might calculate their self interest rests with toughing it out in their own country.

One can apply diplomatic pressure and moral suasion to deal with issues between sovereign countries. Indeed, if a country believes it is morally necessary it can impose sanctions of some sort against other countries. To use universal jurisdiction is to allow tyranny by small number of judges who choose to extend their jurisdiction beyond that mandated by international law.