Obama and Bush

by John Quiggin on March 9, 2011

The announcement that military show trials are to recommence at Guantanamo Bay, combined with the brutal and vindictive treatment of Bradley Manning, make it clear that, as regards willing to suppress basic human and civil rights in the name of security, there is no fundamental difference between the Obama and Bush Administrations. The first obvious question is, why? The second is, how to respond?

A natural starting hypothesis would be that Americans, or the American ruling class, benefit from the abandonment of the rule of law. It’s certainly true that the suppression of basic rights has gone hand in hand with the development of a culture of impunity for the ruling class, particularly in relation to crimes committed in the name of security. But there’s very little evidence to suggest that Gitmo, military commissions and so on have done anything to promote security. Most obviously, after nearly a decade, they have yet to secure any genuine convictions, just a couple of squalid (on the government side) plea bargains, and one case where the defendant boycotted proceedings. Prosecutions of accused terrorists in criminal courts in the US and elsewhere have produced far more convictions and prison sentences, although of course they have also produced some acquittals and releases, outcomes that seem unthinkable in the US context.

A second hypothesis, which seems more plausible, is that Americans generally support these measures, and that Obama either shares their views or is acting out of political expediency. There’s plenty of opinion poll evidence to support this hypothesis. On the other hand, Obama easily beat Bush running on a platform based on the traditional rule of law. Moreover, you could probably get similar opinion poll responses in other countries, but restrictions on civil liberties have faced far more resistance nearly everywhere outside the US, even in countries that have historically been less interested in individual rights than the US.

A third possibility is that Obama has been captured by the national security apparatus within the US state, either through access to secret information (reliable or not) about the magnitude of the terrorist menace, or through the hidden exercise of political power. Certainly, the military-industrial complex seems only to have gained in power, despite its manifest incapacity to deliver on its promises in Vietnam, Iraq, Afghanistan etc, and despite the absence of any apparent capacity on the part of the CIA and similar bodies to predict the course of international events.

As regards a response, this depends on where you stand. In the short run, and within US politics, there is little choice but to support Obama and the Dems as the lesser evil, at least as regards domestic policy. Presumably there must be a political path back towards the rule of law, but it’s hard to see it at present.

Internationally, the gap between Obama’s rhetoric and his actions has not yet attracted a lot of attention. For the moment, the public image of the US is still improving as a lagged response to Obama’s early actions. But it’s hard to see this being sustained indefinitely. In particular, the Wikileaks case has the potential for grave damage, especially given the recognition that Wikileaks (and, more generally, the capacity of the Internet to undermine censorship and secrecy) has done more to promote the cause of freedom than the rhetoric and actions of successive US Administrations.

Overall, though, it’s hard to avoid a feeling of fatalism when we contrast the hopes aroused by Obama’s inauguration with the reality of his administration.

{ 270 comments }

1

NomadUK 03.09.11 at 9:29 am

there is little choice but to support Obama and the Dems as the lesser evil

You were doing just fine up to that point.

2

Chris Bertram 03.09.11 at 9:42 am

_Moreover, you could probably get similar opinion poll responses in other countries, but restrictions on civil liberties have faced far more resistance nearly everywhere outside the US, even in countries that have historically been less interested in individual rights than the US._

You make this sound like more of a paradox than it is John. I think there’s a connection between the US emphasis on rights and a strong retributivism which finds expression in the public desire to blame and punish. Hence strong US support for the death penalty. Hence the contrast between the European treatment of 60s radicals who took up terrorism (generally released and rehabilitated by now) and the US treatment (some still in jail with no prospect of release). Hence John Walker Lindh, basically a confused kid.

3

Henri Vieuxtemps 03.09.11 at 9:55 am

I think the first two hypotheses go together: the ruling class benefits from tightening the screws, and they will keep doing it until they encounter some noteworthy resistance from the population. The 9/11 incident caused a shock, and now a new equilibrium has to be found.

4

Warbo 03.09.11 at 10:44 am

“On the other hand, Obama easily beat Bush…”
Shouldn’t that be McCain?

5

T Needham 03.09.11 at 11:08 am

Your reduction of the arguments to essentials strikes a chord. In short, it seems to me that in America a sizable minority has lost or never had an interest in adhering to the rule of law except in commercial transactions they are involved in.

It is apparent that this opening is being vigorously exploited by right-wing malefactors. Or should I say, this opening which was primed by 30 years of attacks on the judiciary has been rent open by 9/11 on one hand and exploited by interested parties.

It is distressing to say the least. I suppose it is part of the tides of politics and certainly trumps, at least my naive hope, that some sort of continual societal evolution occurs.

6

Tim Worstall 03.09.11 at 11:17 am

“A natural starting hypothesis would be that Americans, or the American ruling class, benefit from the abandonment of the rule of law.”

Slightly gentle there.

The ruling class, whoever and wherever they are, always benefit from the abandonment of the rule of law. For doing so changes the restrictions upon what they may do to us from a list of generally agreed things (voted on through legislatures, subject to over turn at elections, yadda, yadda) to whatever they damn like.

Civil liberties are the same (or the flip side of the same point, if you prefer). Law, written down and applied impartially, limits what they may do to us. Civil liberties ditto. They are both, always, in the end the means of protecting us the citizenry from the whims of the rulers.

Therefore it is always true that the rulers would prefer to limit such protections: for what’s the fun in ruling if you cannot do what you like?

This is as true of arbitrary confiscation of any money lying around that might, just possibly, have something to do with drugs, eminent domain abuse, the extention of he commerce clause to include having to purchase something, ID cards (only those with something to hide have something to fear!), wiretaps and Echelon, as it is of breaches of habeas corpus or the right to a jury trial.

It’s just the nature of the beast, government.

7

ajay 03.09.11 at 11:32 am

The ruling class, whoever and wherever they are, always benefit from the abandonment of the rule of law

Mikhail Khodorkovsky might disagree… the advantage of the rule of law is that it also limits what the ruling class can do to each other. Magna Carta wasn’t signed as the result of a peasants’ revolt.

Presumably there must be a political path back towards the rule of law, but it’s hard to see it at present.

I suspect that it would be a lot harder to defend lawless behaviour if there isn’t a war on. In four years, if all goes according to plan, there won’t be. The road back (if any) probably starts there. A lot of other impositions on civil liberties (such as the Emergency Powers (Defence) Act) were reversed after the war was over.

8

The Creator 03.09.11 at 11:48 am

ajay, the problem is that in the past there were actual wars which threatened the security of the state. The present wars are wars of choice, and these impositions of civil liberties have nothing to do with protecting American citizens against attack. Therefore, it was reasonable to assume that Obama would do something, however cosmetic, to roll back these impositions. You might recall, for instance, that he promised to close Guantanamo Bay.

The South African Internal Security Act of 1982 survived until the end of the apartheid regime, but it wasn’t enough, and the state of emergency subsequently declared survived until almost a year after the unbanning of the ANC. State appetite for oppression grows with eating.

9

M. Townes 03.09.11 at 11:58 am

I think #1 and #3 can be collapsed into a single argument: the American state, particularly the executive, wants these powers for itself, and is unrestrained from claiming and exercising them. I think it is pretty likely that if you asked Americans in August 2001 whether they approve of torture and indefinite detention, the response would have been overwhelmingly negative. But there is always in a democratic society a tension between what a society will permit its state and what the people running the state want. The Bush administration seized on the crisis in 2001 to expand its powers, and the Obama admin has no interest in relinquishing those powers. In theory, Congress is supposed to (a) represent our society against the state to (b) check executive power, but they (a) don’t and (b) don’t. And nearly every time the Supreme Court has considered these issues, they have decided against the state; yet Congress and the President refuse to implement these decisions in any meaningful way.

Granted this requires a fairly nuanced understanding of the state, in which the Supreme Court is not as central as the military-industrial complex, and in which electing a new President is not necessarily a radical change. But that is precisely what the evidence points to: that the machinery of the American state is deeply compromised. What this means in terms of response, I am not sure, but I don’t think we can support Obama without further bolstering the executive. The solution almost by default lies in Congress, particularly in those Congresspersons (hopefully Dems.) who are opposed to the executive’s overreach.

10

wkwillis 03.09.11 at 12:20 pm

There is one other problem for the rich with the collapse of the rule of law, which is that the rich are in the position of having lost all their money. They are no longer rich. Social Security and Medicare, military, police, and other pensions, are senior debt, and rich people’s assets are junior debt. Wholesale replacement of elites is coming.
Extend and Pretend is pretty much the only economic policy on hand that even slightly masks this problem. How long can it continue?

11

Brett Bellmore 03.09.11 at 12:34 pm

“there is little choice but to support Obama and the Dems as the lesser evil”

I voted for Bush, twice, (And the second time I came close to needing a barf bag in the polling station.) on that exact basis. McCain was a bridge too far. And a lot of challengers got my primary vote last year. You’ll come around eventually, I expect.

The problem with voting for the lesser evil, (Aside from it never turning out to be as “lesser” as you’d been led to expect…) is that it sets up a dynamic: People on both sides are doing it, while applying a bit of a thumb on the “evil” scale to account for the fact that their guy agrees with them on some things. (Or claims to, anyway… the thing is, evil guys lie.)

So your evil guy is the excuse for Republicans voting for somebody they know to be evil, and the Republicans’ evil guy is your excuse for voting for somebody YOU know to be evil, and come the next election, the bar has been lowered, and the cycle repeats, only a bit more evil. A downward spiral ensues, and what’s to stop it before we’re making excuses because at least our guy allows the people in the cattle cars to bring box lunches on the way to the crematoriums?

Nothing but people deciding at some point that even the lesser evil is EVIL, damn it, and isn’t going to get their vote.

Back in 2008, I realized that, vote for either major party candidate, and I was going to get somebody evil. So I voted third party, and, while I still got somebody evil, at least I’m not complicit. Which is more than you can say today, sucker.

12

KMS 03.09.11 at 12:57 pm

“In the short run, and within US politics, there is little choice but to support Obama and the Dems as the lesser evil, at least as regards domestic policy. “
Why?
It will only encourage them

The best response in my opinion? An alliance between the decent people on the left, right and libertarian side. A presidential ticket of say Ron Paul and Glenn Greenwald (or similarly minded people), running on the abolition of 1) the US military empire and its wars, 2) the domestic police state, 3) the war on drugs, and 4) the Federal Reserve (or crony capitalism in general).

Leave all other decisions (that would divide the decent left, right and libertarians) to Congress and the Senate. These four things are top priorities, and no establishment parties and candidates will do anything about them.

Also, such an alliance should be both intellectual and populist, in the sense that their campaign should be about real ideas rather than empty rhetoric, and it should be fundamentally anti-establishment. This will appeal to the large numbers of people who are fed up and disgusted with the Democrats and the Republicans.

The main reason that Democrats and Republicans continue to get away with what they are doing is because there is no credible alternative, so that people either stop voting or continue to vote for (the lesser) evil.

13

bt 03.09.11 at 12:57 pm

I think it is fairly obvious the Obama would do away with Guantanamo, if he could. Congress pretty well made it impossible for him to do so.

So the political choice is, leave it alone, or have a huge blowout with congress about the issue. The 2nd option would be catnip for the whole Obama the Muslim from Kenya crowd – the first is really the only option unless Obama want his whole first term to be defined by ‘freeing the terrorists’. Do not underestimate the willingness of the current GOP to literally drive the car into a ditch to score points with their current (insane) voter base.

It will probably require a republican president to undo a lot of the crap the Bush put in place. As in Nixon going to China. It is a miracle that Obama got an arms deal with the Soviets, such achievements are typically denied to democratic presidents.

And as for those who say that their is no difference between the 2 parties, just tell that to the Ralph Nader voters in Florida. Thanks a lot for the worst 8 years in America’s living memory, Ralph.

14

Platonist 03.09.11 at 1:01 pm

Times are bad indeed. But the nation as a whole is, I’m sure, greatly relieved to hear the Brett Bilmore’s soul has remained pure. Praise Jesus!

I hear that every time a union worker loses rights, Bilmore gets another set of angel wings.

15

Helper 03.09.11 at 1:18 pm

Is there no Godwin’s Law equivalent on this Nader 2000 stuff?

16

Satan Mayo 03.09.11 at 1:30 pm

Is this the first time Brett Bellmore has let slip his facade of seemingly being an android?

17

The Raven 03.09.11 at 1:31 pm

We corvids are happily well-fed, mmmm. However, we’re well-fed regardless of your hominids policies in this area.

As to the subject at hand, I offer explanation four: Obama avoids confrontation with Congress, and thus is unwilling to challenge that hawks on this matter.

18

bt 03.09.11 at 1:57 pm

‘Obama avoids confrontation with Congress, and thus is unwilling to challenge that hawks on this matter’

On this we agree.

The really sad aspect is that Democrats in congress can’t line up on issues. My suspicion is that’s why Obama always looks like he’s capitulating to congress, he can’t keep his own troops on the firing line. You might argue he’s not trying hard enough, but that is a different conversation, one that turns on why the Democrats as a party are unable to maintain any discipline when they need to. I’ve read that the difference in behavior is that the Dems in Concgrees choose leaders by seniority and the Repubs choose by election.

19

Henry 03.09.11 at 2:06 pm

Ken MacLeod’s _The Execution Channel_ is an interesting fictional take on this – an even nastier version of the US national security state gone rampant where (if you read carefully between the lines of the alternative history) it is clear that Gore won the 2000 election, to be replaced by Hillary a few years later.

20

chris 03.09.11 at 2:16 pm

So I voted third party, and, while I still got somebody evil, at least I’m not complicit. Which is more than you can say today, sucker.

This would be much more convincing coming from someone who hadn’t earlier in the same post admitted his complicity (by this standard) in *starting* the selfsame lawless abuses Obama is here criticized for not stopping.

You voted for the *greater* evil in 2000 and 2004, Brett, and if you can’t even admit that in hindsight, I don’t see why anyone would take seriously your criticisms of Obama or his base.

21

NomadUK 03.09.11 at 2:41 pm

I think it is fairly obvious the Obama would do away with Guantanamo, if he could. Congress pretty well made it impossible for him to do so.

I think there’s absolutely no evidence to support this claim. In fact, it’s quite clear that Obama does and has always supported the ‘war on terror'; nothing in his campaign and nothing in his actions since election serves to contradict this. The belief that Obama would do great things if only he were free to do so is delusional, and has been thoroughly eviscerated elsewhere. He does what he does because he wants to.

22

Jerry Vinokurov 03.09.11 at 2:51 pm

I’m not really sure why you didn’t just stop with option #1…

23

Rich Puchalsky 03.09.11 at 2:51 pm

There is no real difference between Obama and Bush in terms of security / civil liberties, despite all the promises that Obama made during the primary. I think that Quiggin is correct that this now has to be seen as a feature of the system rather than a bug.

But what people tend to forget is that the US is a security state internally as well, with the highest documented incarceration rate in the world and the highest documented total prison and jail population in the world. Americans have long welcomed imprisonment as a method of social control of poor and black people. It’s not really surprising that home-grown techniques would be applied to American imperial adventures as well. Nor is it historically unusual: the military attitudes criticized in Iraq started in the Phillipines, a century earlier, and were polished in Central America, whose right-wing death squads were openly floated as a model for U.S. forces (Google the “Salvador Option”).

I’ve become some kind of anarchist at this point: the system is broken, and can’t be fixed.

24

Jim Demintia 03.09.11 at 3:01 pm

“The 2nd option would be catnip for the whole Obama the Muslim from Kenya crowd – the first is really the only option unless Obama want his whole first term to be defined by ‘freeing the terrorists’. Do not underestimate the willingness of the current GOP to literally drive the car into a ditch to score points with their current (insane) voter base.”

Do they need this issue to do that? Those voters already think he is a radical Muslim socialist. Whether he acted on Guantanamo or not would have no effect on this belief, because they are already completely convinced. And the GOP doesn’t actually need any actual policy choices to stir the pot–remember the death panels?

While a case can plausibly be made that Obama is working with the Congress he’s got on passing good domestic legislation, this argument fails completely when transposed to his civil liberties record. If Obama wants to do the right thing here but is prevented by Congress and the GOP, it stands to reason we would see him rolling back Bush’s “security” regime in less high profile ways even if he had to concede on closing Guantanamo. But he is not. Instead, he is going even further than Bush in claiming new security powers for the executive branch, including the power to assassinate U.S. citizens. When it comes to civil liberties, I just find it hard to believe that Obama is the good Tsar–wanting what’s right but held back by his manipulative advisers and the state apparatus.

25

bt 03.09.11 at 3:23 pm

‘While a case can plausibly be made that Obama is working with the Congress he’s got on passing good domestic legislation, this argument fails completely when transposed to his civil liberties record’

Isn’t it a possibility that the coalition (of democrats) that could be assembled to give more goodies to work on “Domestic Issues” people could not be held together when the subject turns to “National Security”? I won’t argue that he’s not tried to hard, but there are lots of calculations beyond the power of the Great Leader and the haplessly disorganized party that he loosely presides over.

I think the missing discipline from congressional democrats explains a lot about how the GOP seems to prevail again and again, even when they are literally destroying things.

Why would Obama get in front of ‘Freeing the Terrorists’ when 1/2 the democrats in Congress will all run away from him, and pretend they are Republicans once the GOP starts beating them up. Of course the east retort is that the Great Leader needs to lead, and they will follow. I wonder about that.

26

Sev 03.09.11 at 3:54 pm

Obama is a bit of a control freak. Greenwald has documented clearly that he goes beyond Bush in his determination to punish leakers. My hope at this point is that as the federal and state cuts start to bite harder, as they surely will this year, the Wisconsin uprising will become more general, and people will begin to make some demands. Possibly a degree of return to the rule of law will be among them. There is beginning to be a bit of headway on this with regard to the mortgage mess, with pushback by affected individuals, lawyers and courts against the pervasive illegality of the banks’ behavior. For example: http://www.nakedcapitalism.com/2011/03/many-foreclosures-in-oregon-halted-due-to-decisions-against-mers.html

27

mpowell 03.09.11 at 4:00 pm


Mikhail Khodorkovsky might disagree… the advantage of the rule of law is that it also limits what the ruling class can do to each other. Magna Carta wasn’t signed as the result of a peasants’ revolt.

I was going to mention this. The problem is that even though the rule of law on the whole benefits established elites (tends to limit downside), those greedy fucks are too self-assured to seriously consider the possibility of blowback and don’t take these risks as seriously as they probably should.

Sometimes I wonder how these things are possible since it is hard to imagine anyone but a sociopath authorizing what Obama has authorized. And as much of an asshole as I think he is, I have a hard time considering him to be a sociopath (with Bush or McCain it’s a lot easier). But then my own dad in response to Bradley’s torture? “He’s a traitor!” I think we have major issues with the public’s view of law and order which infests and corrupts non-sociopathic thinking on the matter until there is no difference. I think there is a pretty different view, if not qualitatively at least substantially quantitatively in other western countries. They just aren’t as retribution oriented. The end result is that they are much better regarding the rights of the accused and convicted.

28

piglet 03.09.11 at 4:06 pm

“I think there’s a connection between the US emphasis on rights and a strong retributivism”

What would that connection be? Could it be that a hypocritical, rhetorical emphasis on rights makes it easier to actually violate them? Americans are so convinced to live in the “Land of the free”, they don’t pay attention to all the prisons.

29

piglet 03.09.11 at 4:15 pm

The problem is that even though the rule of law on the whole benefits established elites (tends to limit downside), those greedy fucks are too self-assured to seriously consider the possibility of blowback and don’t take these risks as seriously as they probably should.

I think it is a lot more common in the US than in Europe or Canada to see former elected officials go to jail. In many cases they fully deserved it and behaved so brazenly that you wonder what made them feel so secure. In at least a handful of cases however, the judicial system was abused for political purposes. It may be rare overall but the US judicial system can be quite merciless towards white collar defendants when it wants to.

30

Straightwood 03.09.11 at 4:15 pm

Obama’s increasingly beleaguered supporters are unable to reach rational character evaluation conclusions. Repeated betrayal of promises and principles by an individual should lead to a negative reapraisal of that person’s character. But Obama seems to have a Reaganesque teflon coating that prevents such a reappraisal. Thus, his supporters grow increasingly detached from the reality of Obama’s policies (endless war, plutocratic rule, and curtailment of liberties), and continue to view him as a man of excellent character.

31

Rich Puchalsky 03.09.11 at 4:49 pm

“Obama’s increasingly beleaguered supporters are unable to reach rational character evaluation conclusions. “

I detest Obama, and I’ve left not only the Democratic Party but electoral politics altogether. But the often-repeated line above, and its variants, are nonsense. I don’t see many people at all who fit the description. In general, supporters are divided into:

1. The people who realize, quite rationally, that they are trapped by America’s electoral rules into a two-party system in which Obama really is the best candidate available, and;

2. The people who approve of the various things that Obama is doing, because Obama is not doing them in a vacuum — he’s continuing a long historical tradition of American torture, imprisonment, and war, and just because someone votes Democratic does not mean that they are magically immune to the social forces that urge them to approve of these things.

32

mclaren 03.09.11 at 4:51 pm

Ajay asserts, with touching naievete, I suspect that it would be a lot harder to defend lawless behaviour if there isn’t a war on. In four years, if all goes according to plan, there won’t be.

Poor dear. America will be at war four years from now, fourteen years from now, and forty years from now. America is now in the Forever War: for America, from now on, war will never end. If U.S. troops leave Iraq, they will simply be moved to Afghanistan. If they leave Afghanistan, they will merely move to Pakistan. If they leave Pakistan, they will move to Mexico. Or wherever.

Once upon a time the military-industrial complex was a parasite feeding on the nation called the United States. But today, the 1.45-trillion-dollar-a-year military-industrial complex has become the state, and the puny little mole once called the United States of America is a mere parasite feeding off the military.

Thus, war will continue, forever and ever, because without war, the military-industrial-security-police-terror complex will shrivel up and wither away, and if that happens, what remains of the U.S. economy will dry up and blow away with it.

Having outsourced and offshored all our industry, America has only one real industry left: the military-industrial-security-police-terror complex. From now on, America will base its economy on spying upon and beating and arresting and searching and kicking in the doors of its own citizens. It’s a dark path leading to an endless downward spiral, and we’re well on the trajectory to self-destruction.

33

Steve LaBonne 03.09.11 at 5:01 pm

Shit. I was already depressed his morning before reading this comment thread. But I have to say, all the available evidence suggests to me that mclaren is right on the money.

34

JM 03.09.11 at 5:17 pm

It’s certainly true that the suppression of basic rights has gone hand in hand with the development of a culture of impunity for the ruling class

Yes, and I think this is over Americans’ heads because they haven’t lived in a class system, although they are about to. Deference and empire go hand in hand.

Americans generally support these measures, and that Obama either shares their views or is acting out of political expediency.

And there is absolutely no political advantage to changing that policy. Even when Obama has moved to change a policy, for instance DADT, he goes slowly, goes through the messy political process, and makes sure everyone has some skin in the game. If there is an Obama doctrine so far, it’s about process, rather than any single policy objective.

35

Guido Nius 03.09.11 at 5:18 pm

I guess that the imminent self-destruction of the military-industrial complex is a good thing. It really ought to come about within 4 years.

36

JM 03.09.11 at 5:19 pm

Magna Carta wasn’t signed as the result of a peasants’ revolt.

Magna Carta was a dead letter as soon as it was signed. It’s significance has been as a rallying cry, not law.

37

Rich Puchalsky 03.09.11 at 5:20 pm

I disagree with the Forever War bit, although mclaren is right about a lot of other things. America is a declining empire. We’ll be at war four years from now, probably. But we can’t be at war forever because the capacity for military projection that we have now is going to collapse. Civil wars don’t last forever, either; it’s an unstable situation that finally ends.

Basically, the major political choices available now are whether we are going to have a post-Empire like Britain’s, or one like Russia’s.

38

JM 03.09.11 at 5:29 pm

Obama’s increasingly beleaguered supporters are unable to reach rational character evaluation conclusions.

What could possibly be rational about a such an evaluation?

Many of Obama’s supporters and critics expect him to be some kind of anti-Bush, where policy is not just a projection of personality, it’s actually presented by the president as such. Obama, for instance, disapproves of gay marriage, and yet he’s letting DOMA twist in the wind.

Personal beliefs do not seem to be the basis of all his politics. For those same supporters and detrators, then, this is supposed to be hypocrisy. I just think of it as adult behavior.

39

Anderson 03.09.11 at 5:35 pm

“Obama, for instance, disapproves of gay marriage”

You believe that? Really?

40

bt 03.09.11 at 5:39 pm

This is starting to sound eerily like the noise that came up while Clinton was President. Clinton wasn’t able to create a socialist paradise any more than Obama has been able to. But now he’s Saint Bill after seeing what Bush managed in 8 years. People need to have some perspective.

I think the broader politics tie these guys up more than anyone cares to admit. As if one guy could change everything. That is a fantasy. The sad fact is that there is a whole swath of states that would look like South Africa today if they weren’t repeatedly beaten up; they are part of the Union, though I often wish they were not. Like when Texas talks about secession, I always say ‘let me help you with your bags’.

What the Dems do suck at is strategy, planning, and teamwork. The GOP has been at this project to destroy the Government for 30 years. The Dems as a whole don’t seem to really understand what they are up against, and keep hoping some savior will show up and fix everything.

Obama is going to be another Clinton at this rate, solid, pragmatic, hated. Why is pragmatism so hated by all?

41

salazar 03.09.11 at 5:39 pm

@34: I think he actually approves of gay marriage, regardless of what he says, and now finds it possible to let DOMA waste away. So, if anything, he’s acting true to his beliefs on that score.

42

JM 03.09.11 at 5:41 pm

@35: He’s said as much, and recently, too.

43

JM 03.09.11 at 5:45 pm

The GOP has been at this project to destroy the Government for 30 years. The Dems as a whole don’t seem to really understand what they are up against, and keep hoping some savior will show up and fix everything.

I think it’s more a case of the Democrats being under the influence of “money=speech,” just like the Republicans. They just don’t get as much of it.

Two junkies, one dealer. Only one of the junkies keeps talking about kicking the habit.

44

Rich Puchalsky 03.09.11 at 5:58 pm

“Obama is going to be another Clinton at this rate, solid, pragmatic, hated. Why is pragmatism so hated by all?”

What Obama is doing is not pragmatic. He has effective control over war and security policy, just like any President, and his disapproval among Republicans would be no greater if he did the right thing where that does not conflict with the military-industrial complex. His negotiations have been catastrophically bad. It’s not pragmatic to take the strongest hand that Democrats have had in decades — much stronger than Clinton’s — and turn yourself into a failure.

45

JM 03.09.11 at 6:07 pm

It’s not pragmatic to take the strongest hand that Democrats have had in decades—much stronger than Clinton’s—and turn yourself into a failure.

On healthcare, Obama has succeeded where Clinton (and a lot of other presidents) failed. On DOMA and DADT, Obama has abandoned Clinton’s compromises with the right. With a weak economy, Obama looks to face no meaningful competition in 2012.

This is failure?

There are only political costs, and no benefits, from reversing the Bush administration’s (or, if you like, America’s long tradition of) torture and habeas abuse. It’s going to be a long time before Americans no longer flinch at their own shadows and fear creeping Sharia.

Sad and stupid, but that seems to be the lay of the land.

46

Chris Bertram 03.09.11 at 6:32 pm

_Why is pragmatism so hated by all?_

Maybe we can’t bring ourselves to love the pragmatic case for the Guantanamo hell-hole and the abuse of Bradley Manning. But if that’s what it takes to keep the Republicans at bay, pass the rubber truncheons. Or maybe not.

47

LFC 03.09.11 at 6:34 pm

I agree with bt@11: Much of the blame for the failure to close Gitmo belongs to Congress, which basically has been unwilling to accept transfer of any of the remaining detainees to mainland U.S. soil. And other countries have been reluctant to accept them. So there’s blame to go around. Unless you think the Obama admin just should have handed every detainee a sum of money and an airline ticket to the destination of his choice. I think actually it should have done this with at least some of them, but that would have been political suicide once news of it got out.

48

Rich Puchalsky 03.09.11 at 6:49 pm

“On healthcare, Obama has succeeded where Clinton (and a lot of other presidents) failed.”

He did? I don’t know where you live, JM, but I live in Massachusetts, home of RomneyCare, the model for Obama’s health plan. RomneyCare is horrible for my family. There are people poorer who we are who it benefits, so it’s better than nothing. But I pay 150% more for monthly health insurance premiums than I do on the mortgage for my house. Obama took a stronger hand than Clinton’s and “succeeded” in making people think that he’d succeeded, taking away all the momentum to fix the issue, and preserving America’s dysfunctional private insurance scheme for another generation. No thanks at all.

49

Anderson 03.09.11 at 6:51 pm

“He’s said as much”

Oh, he *said* so. Well all right then.

50

JM 03.09.11 at 7:00 pm

I’m sorry, Mr. Anderson, do you have some other evidence as to the man’s religious beliefs on the issue?

51

chris 03.09.11 at 7:09 pm

his disapproval among Republicans would be no greater if he did the right thing where that does not conflict with the military-industrial complex.

This is not actually true. Moderate Republican *politicians* are damn near extinct (although even there there may be a few, like the Senators from Maine), but IIRC there are quite a few moderate Republican *voters* who are looking rather uneasily at the radicalization of the party they have adhered to for years or decades. Some of them are genuinely ambivalent about Obama, as long as he doesn’t prove that he really does want us all to be murdered in our beds by Muslims.

Furthermore, it’s not just a military-industrial complex anymore; it’s a military-prison-security-industrial complex. Any more reasoned security policy absolutely would conflict with them.

However, contra mclaren, you can’t actually base an economy on this because it produces nothing of value. Unless you export it.

He has effective control over war and security policy, just like any President

In both of those areas, *policy* is supposed to be set by Congress, and the President is supposed to only be responsible for operations. Recent events, IMO, fully vindicate the Framers’ determination to organize the government this way. It is perhaps natural that executives aren’t overeager to address this point, but we could really use a Congress that did.

52

pdf23ds 03.09.11 at 7:23 pm

53

pdf23ds 03.09.11 at 7:27 pm

Also, once again I must link to a prescient Sinfest comic.

54

bt 03.09.11 at 7:30 pm

This has been a fabulous set of posts all around, everyone.

55

pv 03.09.11 at 7:31 pm

As a Wisconsin state employee (taking a Tea Party approach to my household budget in preparation for ScottWalkernomics), I find it increasingly difficult to take seriously the claim that there’s little to no difference between Democrats and Republicans and it doesn’t matter. But as a pacifist, I find it increasingly obvious that there’s little difference between the parties on matters of war. I remember sometime in the middle of the ’00s hearing that we would still be at war in January 2009, and that making me very, very sad. Considering how little military spending even comes up in discussions about cutting the budget, there appears to be bi-partisan consensus that we must spend lots and lots of money on the military.

And I think the answer is #2: most Americans share rather militaristic values, and view the victims of torture and other civil rights violations as people so different than ourselves, we don’t have to take these offenses too seriously (it seems to me many people view this treatment as part of their deserved punishment). There is then little political pressure on Obama to change how these matters are treated (and in fact political pressure against changing these matters).

56

Detlef 03.09.11 at 7:47 pm

bt,


I think it is fairly obvious the Obama would do away with Guantanamo, if he could. Congress pretty well made it impossible for him to do so.

I agree with you here but – being a bit cynical – I suspect not for the same reasons.
“Obama would do away with Guantanamo” instantly because he understands that Guantanamo has become a worldwide symbol. That doesn´t mean that he would do away the rest.

It´s more to get rid of a symbol and try to sweep everything else under a carpet. And then make speeches about hope and change. Don´t mention the past. :)

Remember the “liberal” use of state secrets by this administration? They did everything they could to suppress the emergence of new “war against terror” information. No new pictures or videos. No innocent detainee given the change to sue
anyone in a US court. Pressure on allies to stop torture and kidnapping investigations.

A Bush administration lawyer writing that “enhanced interrogation” including water-boarding isn´t torture and therefore okay?
Which means that patriotic Americans were only following orders.
Shouldn´t be investigated much less prosecuted by the Obama administration.
Look forward, not backward.

So let´s close Guantanamo but enlarge Bagram instead.
Farther away, more difficult to travel to and more difficult for US courts to claim jurisdiction.

Glenn Greenwald in one of his posts cited this newspaper article:


“You’ve got state secrets, targeted killings, indefinite detention, renditions, the opposition to extending the right of habeas corpus to prisoners at Bagram [in Afghanistan],” Mr. Hayden said, listing the continuities. “And although it is slightly different, Obama has been as aggressive as President Bush in defending prerogatives about who he has to inform in Congress for executive covert action.”

http://www.salon.com/news/opinion/glenn_greenwald/2010/10/11/continuity

I may be unfair here but that´s how it looks like…
A change in style but not in substance.

57

Doctor Slack 03.09.11 at 8:08 pm

44: He did? I don’t know where you live, JM, but I live in Massachusetts, home of RomneyCare, the model for Obama’s health plan. RomneyCare is horrible for my family.

And yet it is on the whole slightly less horrible for America than what preceded it, and passing even that — passing a thoroughly half-assed, private industry-pandering Republican-inspired version of healthcare — was a gargantuan political struggle in which the GOP spent all the resources at its disposal in a desperate bid to bring down Obama. And it almost worked.

Many of Obama’s achievements are like this: at once breathtaking as feats of political bargaining and gamesmanship in the face of a truly rabid and nutty opposition, and yet largely unimpressive as actual policy achievements by the standards of any sane country; American healthcare was a disaster pre-Obama and is still just as disastrous after him, spending more per person than anywhere for results the equivalent of Chile’s. But then let’s face it, Obama does not live in a sane country. He’s the quintessential “successful” Democratic politician: a charismatic bargainer and master of triangulation devoted to keeping himself politically alive in the broadest possible constituency, even if doing so requires compromises on fundamental issues like the rule of law. And he can make those squalid compromises look like practical politics, even victories in the face of hard-right political insanity (in the case of healthcare) for one very simple reason: because by all appearances, that’s exactly what they are.

This is basically a sign of a broken political system, or at least a broken party system. Until either the Bizarro World conservative movement completely collapses and the last of the Religious Right withdraw back to their revival tents, or more likely until the whole edifice comes crashing down (even Niall Fergusson is issuing stark warnings these days, not without good reason), it will probably remain broken. I’m saddened but not surprised that Obama either can’t or won’t do more to fix it.

58

Straightwood 03.09.11 at 8:40 pm

The clinching evidence for Obama’s betrayal of liberal and democratic principles is his relentless pursuit of whistleblowers – beyond anything done by the Bush administration. The psychological torture of Bradley Manning could be halted with one phone call from the White House, but it continues, because this is what the power structure demands: crushing anyone who reveals the truth about institutional misdeeds.

Obama was elected to be a safe pair of hands for the powers that be. The financial, military, and state security elites have been aggressively protected by Obama. He has been a perfect conservator of authoritarian America, and this was a massive betrayal of his liberal supporters. Obama is not an unfortunate victim of unlucky politics; he is an active agent of the American plutocracy feigning an interest in the common man.

59

simple mind 03.09.11 at 8:44 pm

“rhetoric and his actions has not yet attracted a lot of attention”

Except for a huge story in the London Review of Books in November 2010.

60

Omega Centauri 03.09.11 at 8:58 pm

There are only political costs, and no benefits, from reversing the Bush administration’s (or, if you like, America’s long tradition of) torture and habeas abuse. It’s going to be a long time before Americans no longer flinch at their own shadows and fear creeping Sharia
Thats pretty much how I see it. It’s not about how an issue polls, but rather whether one side can create an emotional stampede against any action they don’t approve of. On most issues, where there is a large difference between Democratic viewpoints and Republican viewpoints polls show the public strongly favoring the Democratic side. But, one side is supremely skilled at manipulated voters baser emotions. So, when it comes time to vote, the public can be stampeded into electing tea-party types. So Obama just feels it in his bones, that a lot of good policies, if he tried to pursue them could lead to catastrophic political consequences for him.

61

Helper 03.09.11 at 9:12 pm

“So Obama just feels it in his bones, that a lot of good policies, if he tried to pursue them could lead to catastrophic political consequences for him.”

So, you’re calling him a wimp?
I can live with that.

62

bt 03.09.11 at 9:13 pm

“And I think the answer is #2: most Americans share rather militaristic values, and view the victims of torture and other civil rights violations as people so different than ourselves, we don’t have to take these offenses too seriously (it seems to me many people view this treatment as part of their deserved punishment). There is then little political pressure on Obama to change how these matters are treated (and in fact political pressure against changing these matters).”

This is very much true I think. We DO get the politicians we deserve, by and large. If there is no real push from below to make changes, changes will not be made. It is the classic definition of leadership: look to see where the crowd is going, then run to the front and yell “follow me”.

That is why it is great to see the action in Wisconsin. There is no substitute for public action.

63

JM 03.09.11 at 9:17 pm

But then let’s face it, Obama does not live in a sane country. He’s the quintessential “successful” Democratic politician: a charismatic bargainer and master of triangulation devoted to keeping himself politically alive in the broadest possible constituency, even if doing so requires compromises on fundamental issues like the rule of law.

It continues to amaze me that the political calculus of survival so rarely factors in in evaluations of political performance, even non-polemical ones. It’s as if the only principled way to run a government is to do, immediately if not sooner, precisely the things that will cost you your office. You don’t have to be a megalomaniac to bust your ass holding on to power.

And no one should expect the US to be sane. The combination of (a) most powerful nation on earth, and (b) money = speech, means that enormous power will be bent to the will of occasionally sociopathic people.

64

Doctor Slack 03.09.11 at 9:40 pm

58: It continues to amaze me that the political calculus of survival so rarely factors in in evaluations of political performance, even non-polemical ones.

I actually think the present era in American politics provided a huge opportunity for a risk-minded politician to change the conversation, to genuinely become the next FDR; Obama’s attitude isn’t necessarily inevitable or the only possible conclusion of a political calculus of survival, it’s just the kind of attitude most typical of his party. But it’s of course always easy to demand that other people take huge risks.

And no one should expect the US to be sane.

No power that loses its grip on sanity, by the same token, should expect to keep its power. Whether or not the US could have remained relatively sane, that ship has evidently sailed by now.

65

JM 03.09.11 at 9:48 pm

No power that loses its grip on sanity, by the same token, should expect to keep its power.

Well that’s already a given, and the elites have already given up on their own country, judging by the looting that’s going on … if elites can ever be said to have a country. They don’t really need one. The only remaining question is whether we can preserve any semblance of a republic as we slip from our perch atop a mono-polar world, which didn’t last very long. Since “Europe” is a dirty word in American politics, I think the answer is no. For all the ginned-up fear of Mexicans in America, that nation seems to be the new ideal.

66

Chrisb 03.09.11 at 10:52 pm

Remember Claud Cockburn’s comment: “Governments do as much harm as they can, and as much good as they must.”
Seems to account for most things.
I also agree with the comments that place much of the blame for the blame things on the militarization of American society. The words ‘ex-marine’ or ‘navy seal’ are damn nearly equivalent to canonization. How long is it since any other OECD nation has run a war hero for president? Or, upping the ante, anyone who’s actually fought in a war, at least since the days of universal conscription?

67

Chris Warren 03.09.11 at 11:01 pm

Hmm, three possibilities

• Americans, or the American ruling class, benefit from the abandonment of the rule of law.

• Americans generally support these measures (political expediency).

• Obama has been captured by the national security apparatus.

These are just symptoms. The extra-judicial psychological smashing of Manning and public jingoism represents a deeper alienation that must always arise from a false existence (illegitimacy).

This has been explored at great length by Satre, Camus, Habermas, Marx, and less appealingly, Foucault (he blames or indicts institutions).

American wealth is extracted from the rest of the world – in fact all OECD wealth is extracted from the rest of the world. This requires a particular set of political, economic, and military mores and institutions that reflect this fact.

Once you take Manning out of the context of OECD world politics, the American response flip-flops. For instance, if Manning was Chinese and the files he released concerned Chinese military operations in Tibet, America and our commentariat would be nominating him for a Nobel Peace prize. In this case, the rhetoric coming out of Clinton would come from the other side of her forked tongue.

As long as American corporates rely on cheap offshore imports and the associated global consensus, any disturbance will be massacred, by the American state – Democrat or Republican, of course supported by a cringing Australia.

As long as your mode of existance is based on exploiting others, then the resulting false values flowing through your civilisation will always lead to infamy, illegality, jingoism, and violence.

Plus, it would seem, distracted academics asking, why is the law abandoned? why is there jingoism? why is there security apparatus etc etc. Such questions are part of the problem. It is all, bad faith, alienation, illegitimacy, and rancid institutions arising from expropriated wealth to defend the system of expropriation.

68

bt 03.09.11 at 11:44 pm

“The words ‘ex-marine’ or ‘navy seal’ are damn nearly equivalent to canonization. “

Love that. The other thing I love is how anyone in a uniform or carrying a weapon is “An American Hero”.

69

JP Stormcrow 03.10.11 at 12:00 am

“The words ‘ex-marine’ or ‘navy seal’ are damn nearly equivalent to canonization. ”

Unless you happen to be Rev. Jeremiah Wright.

70

Salient 03.10.11 at 12:06 am

Unless you happen to be Rev. Jeremiah Wright to the left of Attila the Hun.

71

Consumatopia 03.10.11 at 12:13 am

It’s a combination of 2 and 3. Specifically, suppose that Obama forced through civil libertarianism. Or, similarly, if he pulled out of Afghanistan. Now some months later there’s some new attack. Then the national security apparatus jumps out to say “I told you so! If it weren’t for your policy, we could have stopped this attack!” There’s no way to falsify this counterfactual claim. Next thing you know president Peter King throws the Muslims in camps and invades Iran.

I’m not sure what we can do about this dynamic. Basically, nobody gets blamed for the stuff that actually increases our risk of being attacked (especially our imperial entanglements in the Middle East), instead we blame the people who oppose anything the military, law enforcement, or intelligence services want.

72

bt 03.10.11 at 12:45 am

And for those who say that there is no difference between GOP and Dem, have you seen what’s unfolding in the last 3 months? And they don’t even control the Senate or the Presidency.

The GOP gets back at the controls and they start steering the ship straight into the sun again. They will make us pay for our gay-loving immorality they will. They have deliberately serially destroyed the budget, so they can finally destroy the communistic government that FDR built. I actually think the fact that a negro is at the controls has driven them off the cliff really.

To not vote for a democrat because they’re not good enough is to repeat the Ralph Nader mistake. It is truly not seeing what the other side is capable of doing.

73

Down and Out of Sài Gòn 03.10.11 at 1:06 am

I understand why people are disgusted with Obama and the Democrats in Congress. The “lesser of two evils” is still not good. I sympathize and emphasize with those who abstain from voting at a federal level, and with those who decide to vote anyway.

What would be a mistake is to abstain from voting at a state level. Firstly, if the United States breaks up, the individual states would probably [*] remain in place. Secondly, there are consequences from the States that bubble up to the federal level, such as the ability to redraw congressional districts. And there are enough Republican politicians loathsome enough to oppose in state politics for their own sake. Apart from Scott Walker, there’s this woman who wants to abolish child labor laws in Missouri.

You’re going to have to live with the consequences even if the empire breaks up. Where would you rather be? A socially liberal place like Vermont, or a “Right to Work” state with high unemployment of 11% like South Carolina?

[* Unless Austin secedes from Texas, or central Pennsylvania secedes from the Pittsburgh/Philadelphia, or inland Cascadia secedes from Washington and Oregon...]

74

Rich Puchalsky 03.10.11 at 1:16 am

“And yet it is on the whole slightly less horrible for America than what preceded it, and passing even that—passing a thoroughly half-assed, private industry-pandering Republican-inspired version of healthcare—was a gargantuan political struggle in which the GOP spent all the resources at its disposal in a desperate bid to bring down Obama. And it almost worked.”

That’s not true, Doctor Slack. It doesn’t match my memory of recent political events. Or, at least, your version is heavily influenced by the news cycle based, who’s-winning-today nonsensical news media.

Here’s what I remember. More and more pressure was building up to do something about the broken health care system. Why? Because it was broken for almost everyone, Fortune 500 companies and small businesses and middle class people and poor people. Everyone, every major political player, had accepted that something was going to happen.

So what did we get? We got the maximal solution for the insurance companies. Obama wasted every activist’s work, all of the careful preparation that people put into this over decades. He succeeding in doing the exact opposite of what FDR did with Social Security. FDR designed a universal program that was made so well that even though it has undergone attacks in every generation, it has lasted. Obama designed a program which takes all the pressure off of business and puts it squarely onto the poor and the middle class. As a result, the previous consensus that changes need to be made is no longer attainable, because the elites no longer have any reason to agree with it.

Sure, the GOP made lots of noise about how they were spending all the resources at their disposal to stop it. It was all kabuki, designed to fool people like you. Did they even try a major ad campaign? No. What they did was the same nutcase stuff about socialism and legal challenges that is designed to satisfy their nutcase right wing without actually doing anything, much like they do with abortion. Meanwhile they’re breathing sighs of relief.

ObamaCare is indeed better than no ObamaCare. But it was still a betrayal of everyone in the Democratic Party.

75

Andrew 03.10.11 at 1:44 am

Well, the military commissions look quite different from what the Bush Administration started with, due to the influence of judicial review and the legislative process. They’re the product at this point of multiple reviews by courts and of course Congress. They’re many things, but they hardly represent a lack of rule of law, or a lack of respect for human rights, much less the most basic human rights.

As to Bradley Manning, nothing persuasive has been offered that shows he is being treated vindictively, much less that his treatment represents some departure from rule of law or human rights. He’s being treated as a soldier charged with some incredibly serious crimes, and who likely needs to be isolated from a general population and also monitored for attempts at self-injury. His current situation is without a doubt very unpleasant and very difficult. But this is NOT abnormal given the circumstances, and does not show vindictive treatment. It’s certainly possible that the forced nudity was in fact vindictive, but we have no good reason for concluding that at present.

I honestly do not understand how you begin with the military commissions, and Manning, and end with asking how America can “find its way back to rule of law” as though rule of law has been lost in the US. Is this simply an overstatement, understandable for a blog post, or do you really mean that the US has lost rule of law?

Nor can I imagine plausible justification for the claim that Wikileaks (and, more generally, the capacity of the Internet to undermine censorship and secrecy) has done more to promote the cause of freedom than the rhetoric and actions of successive US Administrations.

76

JP Stormcrow 03.10.11 at 1:49 am

FDR designed a universal program that was made so well that even though it has undergone attacks in every generation, it has lasted.

This is not really the way it happened. I will grant that the initial program was an edifice that could be (and was) expanded to what you describe, but anything approaching universality was some time in coming. However, there is a good argument that the ACA as currently designed is not capable of being incrementally enhanced towards a similar end.

77

Consumatopia 03.10.11 at 1:56 am

One thing I’d put out there–tying Obama’s continuation and even extension of Bush anti-terror policies together with disappointments on health care or gay rights is a huge mistake. Obama’s betrayals on war powers issues are so great that former Bush administration people actually defend Obama. They rub their hands with glee “see, Bush was right all along, hippies!” There’s no equivalent on Obamacare, DOMA, DADT, financial regulation or…really, anything else I can think of.

Any explanation of this imbalance that centers on general Democratic weakness or corruption misses the mark–it has something specific to do with the issue of civil liberties. We do a much crappier job on this issue than any other. I think you could even make a reasonable argument that our detainee policy would be saner under a McCain administration. (Possibly energy policy as well.) At the very least, our terrible policies would not have become bipartisan consensus.

78

Scott 03.10.11 at 2:06 am

Prof. Quiggin,

I was going to ask this on your own blog, but it is not working very well, so I’ll ask here for now and maybe you can reply there….

In view of all this, it is pretty obvious that nations like Australia should be backing away from its security reliance on the US as fast as is decent, but sadly we’ve instead seen our Prime Minister make a terribly submissive speech to Congress. Is there any way forward for Australia to avoid the coming meltdown and how should Australians respond? I fear that just like Americans, Australians fit into hypothesis 2, (the reaction to the David Hicks case suggests this.) and can not see the train wreck ahead.

79

Tony Lynch 03.10.11 at 2:07 am

Here is the problem in a (Platonic) nutshell.

i) Democratic (in the generic, not party sense) politics – and especially since the demise of labour/capital mass parties, the end of the Cold War, and the success of Keynesian liberalism dimming/obliterating our memories of what it was responding to – is, like any other politics, a matter of elites.

And ii) our elites are pretty much no good, period.

So the challenge is iii) to ensure that our elites are not no damn good!

A good start? Re-read The Republic.

80

Doctor Slack 03.10.11 at 2:08 am

Rich: Sure, the GOP made lots of noise about how they were spending all the resources at their disposal to stop it. It was all kabuki, designed to fool people like you.

Ummm… it dominated their entire noise machine from end to end for months on end. You didn’t notice that? You don’t remember it? And I’m pretty sure it was kabuki designed to kill the legislation and hobble Obama’s presidency. The Republicans didn’t make a bunch of noise and then vote in favor; in the House they voted in a united bloc against the reform. The legislation in fact passed only because the Democrats managed some unusual solidarity… which in turn came about because concessions in the legislation were made to conservative Democrats.

(It was not, therefore, a betrayal of “everyone in the Democratic Party.” It was “betrayal” of progressive Democrats, whom the so-called “centrist” Democrats have always been quite comfortable betraying on account of knowing they have nobody else to vote for or work with who isn’t a thousand times worse. The Dems have always been more vulnerable on their right flank. I’m not saying that doesn’t suck donkey balls, obviously; like I said, you have a broken political system or at the least a broken party system.)

Yes, I remember the push for reform that preceded all that and all the work activists did. But that was not the be-all end-all to the actual passing of the legislation. And the thing is, the passing of the legislation was a very real political victory for all that it was a shite policy outcome. That’s the fundamental paradox of the Obama era, the marker of just how far American politics has drifted from being able to actually talk about and deliver real solutions to its very real problems.

81

Chris Warren 03.10.11 at 2:17 am

Yea

Quiggin’s blog is broke.

82

Straightwood 03.10.11 at 2:26 am

It’s certainly possible that the forced nudity was in fact vindictive, but we have no good reason for concluding that at present.

Manning has repeatedly been evaluated by military psychiatrists as not being a suicide risk. His captors are obviously abusing him psychologically to break him. Standing naked for inspection and getting one hour a day of exercise (walking figure eights in a room while shackled) are NOT normal procedures. Putting an accused man in solitary confinement for NINE MONTHS without a trial is NOT normal procedure. But as long as Americans continue to worship the military, they will accept even the most ridiculous excuses for the shameful treatment of Manning.

The law in America now serves mainly as a weapon wielded by the strong against the weak. Malefactors of great wealth and power go unpunished. Confessed torturers and thieves are showered with book deals and bonuses, while whistleblowers and the poor are demonized.

83

Down and Out of Sài Gòn 03.10.11 at 2:46 am

Scott: Australia has military links to the US. That does not imply that their domestic policies are linked.

The biggest political issue down here is a carbon tax, not universal healthcare (which we have), nor unemployment (half that of official US figures, and possibly a third or a quarter of unofficial figures). We are vulnerable to petrol shortages like the US , but we are self-sufficient in natural gas (I think the US gets a lot of theirs from Canada).

The biggest differences are: that we still have a bit of a property bubble going on (while the US’s has deflated), and we don’t have an empire to run.

84

Scott 03.10.11 at 3:00 am

@downandout,

It’s the military links that concern me, of course. Mussolini had military links to Hitler, and look where that got him.

That might be a technical foul regarding Godwin’s Law, but the US really does appear to have a a political class and especially the Republicans that are insane. We could get dragged into a ‘Coalition’ that invades Iran, or wherever the next Republican President wants to go.

I’m just an ordinary Australian that cares about his country and being allied to the US these days seems to be like driving in a car with someone who is drunk.

85

Charles Peterson 03.10.11 at 3:27 am

A friend of mine (and onetime political science major and Intelligence staffer) says that the Presidential system almost always leads to failure, typically seizure of the state by the executive or military. The US is the first and among the few left standing. Parliamentary systems fare much better (and he believes this is not a matter of proportional representation…he believes proportional representation is de-centrifying and therefore destabilizing…I think it a step forward). He also believes that the separation of head of state and head of government is a useful device, and achieved most effectively in constitutional monarchies. We must not let the top pols wrap themselves in the flag, their just the janitorial staff.

86

Andrew 03.10.11 at 3:29 am

@82: He is under a “prevention-of-injury” order currently and has been on suicide watch multiple times during his imprisonment. I do not know the precise delineation between the two statuses, but I don’t find it particularly surprising that Manning would be at risk at injuring himself. His lawyer claims otherwise, as his lawyer should, but that’s almost as persuasive as a character reference from his mother.

As to a 23 hour confinement, that is quite normal for a prisoner in maximum security – normal given the charges he faces – who is segregated from the general population and is likely considered as someone who requires protective custody. It occurs in prisons and jails across the United States. He’s permitted one hour of exercise outside his cell, and is able to communicate with other prisoners and guards. Manning isn’t particularly special in that regard, and conditions such as this – and worse – have been upheld by the Supreme Court as within the confines of the Constitution.

As to American law, “the weak” find its protections every day, whether when they sit with their court-appointed lawyer, or file a suit against an enormous company, or fund government agencies and departments whose sole purpose is to identify, investigate, and prosecute those who really are abusing the power of the law as a weapon with which to oppress the weak.

I am, proudly, an American attorney, and I would stand up this system – as ugly, inefficient, and sometimes horribly wrong in some of its results it is – against any other.

87

Down and Out of Sài Gòn 03.10.11 at 3:47 am

I am, proudly, an American attorney, and I would stand up this system – as ugly, inefficient, and sometimes horribly wrong in some of its results it is – against any other.

Even against the legal systems of the Canucks, the Aussies, the Kiwis or the Scandinavians [*], Andrew? There’s less people behind bars per capita and their murder rate is lower. They must be doing something right.

[*] Sweden excepted.

88

Andrew 03.10.11 at 3:51 am

Yes, their legal systems face less challenges than does the United States. And, lest I be misunderstood, there’s a great deal that the US can learn from the way civil disputes are handled in Europe, and in other areas. I don’t certainly don’t intend to claim perfection.

89

Straightwood 03.10.11 at 4:00 am

I am, proudly, an American attorney, and I would stand up this system – as ugly, inefficient, and sometimes horribly wrong in some of its results it is – against any other.

For an American attorney, the duty of making a case takes precedence over any duty to the truth. That is why the defense of the obviously punitive conditions of Manning’s confinement omits inconvenient facts, such as the shackles on his feet and the nine months of his solitary confinement without trial.

American attorneys believe that the mercenary combat model of justice is an excellent system, and thus they heartily approve of the courtroom victories of the powerful over the weak, because the powerful can afford to pay for better representation. That’s the American way!

American attorneys also believe in the healthy rotation of lawyers through the revolving door of government and private sector work. This accounts for the remarkable effectiveness of the SEC and many other regulatory agencies, whose lawyers can look forward to considerable increases in compensation when they move to the private sector and represent the clients they were once carefully regulating.

Military justice is to justice as military music is to music, but in the case of Bradley Manning, American attorney Andrew hears nothing but the grand music of military authority drowning out the sound of Manning’s chains.

A chest thumping American exceptionalist is invulnerable to contrary evidence, so I expect that attorney Andrew has excellent lawyerly explanations for why American torture, rendition, targeted assassination, indefinite detention without trial, wrongful executions, and “free speech zones” make us the envy of the civilized world.

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TGGP 03.10.11 at 4:00 am

The general public doesn’t care as much about foreign policy, national security etc, so the small group who do have a lot of leeway. I suspect there is a lot of support for doing our worst to “terrorists”, who merit all the fear of a wartime enemy and none of the honor of a uniformed combatant.

There is public support for the death penalty in Europe, but public opinion may have less sway there.

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Straightwood 03.10.11 at 4:10 am

there is a lot of support for doing our worst to “terrorists”, who merit all the fear of a wartime enemy and none of the honor of a uniformed combatant.

Ah yes, terrorists are easy to hate, and you can call just about any inconvenient person a terrorist: Julian Assange, for example. And if Assange is a terrorist, how about all those dangerous journalists who do similar things?

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Scott 03.10.11 at 4:18 am

Just because something has the support of public opinion doesn’t mean it is right, or should be done.

If opinion polls revealed that a majority of Americans (or whoever) were in favour of re-introducing slavery, would that make it okay?

Appealing to public opinion is an incredibly weak argument.

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Donald Johnson 03.10.11 at 4:18 am

“As to a 23 hour confinement, that is quite normal for a prisoner in maximum security – normal given the charges he faces – who is segregated from the general population and is likely considered as someone who requires protective custody. It occurs in prisons and jails across the United States. He’s permitted one hour of exercise outside his cell, and is able to communicate with other prisoners and guards. Manning isn’t particularly special in that regard, and conditions such as this – and worse – have been upheld by the Supreme Court as within the confines of the Constitution.”

” am, proudly, an American attorney, and I would stand up this system – as ugly, inefficient, and sometimes horribly wrong in some of its results it is – against any other.”

If I’m ever in any trouble, I sure don’t want you as my lawyer.

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Down and Out of Sài Gòn 03.10.11 at 4:35 am

Yes, their legal systems face less challenges than does the United States.

Your answer, if you don’t mind me saying so, is a bit of a copout. What challenges are those, Andrew? What causes the United States to have both higher incarceration and homicide rates than (say) New Zealand?

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Donald Johnson 03.10.11 at 4:51 am

I apologize for my overly personal remark, Andrew, but your post was disturbing. You seem to dismiss the significance of Manning’s treatment on the grounds that it’s perfectly normal in the US, and then you say that you are proud to be an American lawyer, and I find it rather difficult to understand this. I hope most lawyers are horrified by Manning’s treatment, and if it’s as common as you say (and I’ve heard elsewhere that it is), it’s not something to be proud of.

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Consumatopia 03.10.11 at 4:55 am

Manning’s treatment is common–shamefully, shamefully common, shameful enough that I’d ask anyone proud of this system to kindly crawl back into their hole–among maximum security prisoners.

But is that common among those not yet convicted? Among those awaiting charges?

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bt 03.10.11 at 6:31 am

What causes the United States to have both higher incarceration and homicide rates than (say) New Zealand?

There is one quite good reason that America is a little messier than some countries: The population is very heterogeneous, and always has been. And there has always been a lot of physical mobility in America, and few ingrained traditions. All of these things lead to loose social bonds.

And loose social bonds lead to a lot of social pathologies, among them crime and low support for social spending (because it’ll all be wasted on those fill-in-the-blank’s / people who don’t look/talk/pray like us).

I can’t really speak to NZ, but culturally homogenous countries have a much easier time setting up governments and social support systems. Sometimes when I look around Los Angeles, where I live, and I see all the different shapes, colors, and varieties of people, I think it’s a wonder that people get along as well as the do. It’s not Scandinavia that’s for sure. And I’ve read that Scandinavian support for social spending is starting to decline, in proportion with the fact that they have been assimilating a lot of immigrants of late.

The assimilation engines in America aren’t working as well as the used to, and I think that shows in some of the nuttiest behaviors that are seen on the right fringe.

I’m not a big of fan of immigrants holding on to their customs, it really does lead to conflicts and potential rejection. But I have faith, the global culture is in the unprecedented process of assimilating everything at this point. A good thing for sure, in my opinion.

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McSnack 03.10.11 at 6:34 am

Well there is another option that he has been ‘captured’ by a group of war mongering neo-liberal democrats. So he is like Kennedy in that way. In part, fears that the right would capture the anti-Communist high ground led JFK and LBJ into Vietnam. Something very similar has happened to Obama–and we see that he is drawn towards these neoliberal best and brightest (often Harvard based) advisers in other areas of governance. I certainly heard JFK-school based blathering about how important it is for the democrats to not appear soft on security around the time of Obama’s election.

The question is how sympathy or weakness about a terrorist Muslim threat could ever be pinned on anyone. You can sort of see welfare statists looking over their shoulder to avoid being seen as soft on communism–but then Obama comes along and he somehow can get the tag of pro-Muslim! It’s utterly amazing. The historical parallels boggle my mind–there is even a fear of a Muslim conspiracy and infiltration in the wingnutty realms (and a number of crackpot books to that effect). I almost think you have to consider the psychology of war or deeper elements of human psychology to fully explain how a US leader has to beat off the tag of being somehow a foreign agent.

So there’s no where to go but down, unfortunately. I don’t think that it is a genuine desire to weaken the rule of law but instead a fear of appearing weak oneself.

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Down and Out of Sài Gòn 03.10.11 at 6:53 am

bt: “The population is very heterogeneous”, by itself, does not explain the high incarceration and murder rates of the US. Take New Zealand:

In the 2006 census, 67.6 percent identified ethnically as European and 14.6 percent as Māori.[213] Other major ethnic groups include Asian (9.2 percent) and Pacific peoples (6.9 percent), while 11.1 percent identified themselves simply as a “New Zealander” (or similar) and 1 percent identified with other ethnicities.

Nor can you use high mobility as an argument. 20% of the inhabitants were born overseas, and NZ is a lot younger than the US.

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sg 03.10.11 at 8:51 am

nor young culture with few traditions – NZ is much younger than the US. And don’t take the “tradition of violence” angle either until you’ve played rugby.

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novakant 03.10.11 at 8:59 am

There is one quite good reason that America is a little messier than some countries: The population is very heterogeneous, and always has been. And there has always been a lot of physical mobility in America, and few ingrained traditions.

If this were true, then there would be bloody mayhem on the streets of London every day, as it rates extraordinarily high in all these aspects – yet it is actually very peaceful comparatively.

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Emma in Sydney 03.10.11 at 11:32 am

The old ‘culturally homogeneous’ line. Sigh. Sydney’s population is 30% overseas-born, and much much higher in many areas. Incarceration rates, assault rates, homicide rates are fractions of the US equivalents. This argument is just another form of American exceptionalism, and equally impervious to evidence.

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dsquared 03.10.11 at 11:38 am

New Zealand is the best comparison I think, because it has a substantial ethnic minority population who aren’t immigrants.

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Jerry Vinokurov 03.10.11 at 1:29 pm

You don’t need some sort of extraordinary legal acumen to be horrified by what’s being done to Manning; you just need to be a thinking, feeling human being with the capacity for empathy. The focus on what is or is not “legal” obscures the fact that the government of the United States is openly torturing a person it is holding in custody. That should be more than enough to disturb anyone.

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Andrew 03.10.11 at 1:36 pm

@Donald: No worries, and I appreciate that you thought to apologize.

The argument was about whether Manning was being singled out and treated differently out of vindictiveness. Now, there are some very fair arguments to make about whether only an hour a day for exercise, and 23 hours in a cell otherwise, is humane treatment, especially for someone still not convicted of a crime.

But my point is that such maximum security detention – where opportunities to escape are minimized, where contact with the general prisoner population is minimized, and where opportunity to harm oneself is minimized – is not by itself persuasive that he is being treated differently than anyone else in similar circumstances. In other words, based on what I’ve heard so far, he’s being treated according to the law. If we want to have a broader argument about that treatment – great – but the issue here, again, is whether Manning is being vindictively and NOT according to the law.

Down and Out @94: I’d imagine the explanation lies in a variety of factors, including firearms ownership and drug laws – but that’s a problem in part with American laws (leaving aside cultural and economic factors), not the American legal system. The criminology discussion here is very interesting, and maybe I’ll toss in my two cents later (I already feel like this comment is too long), but it has little to do with the merits or (admitted problems) with the American legal system.

Straightwood @89: Well, attorneys in the US generally have what’s called a “duty of candor” to the court, meaning that they cannot lie, among other things, to make their case. They can make bad arguments certainly, but the best cure for that is another attorney across the room who has every incentive to point out those bad arguments. As to your revolving door thesis, to the extent attorneys for the SEC move to private practice, their marketability will depend in part on how good they were at the SEC; so they actually have every incentive to be as excellent as possible there. They WANT to be known as the people who can take on the very best defense teams, and win. If someone does a very poor job at the SEC, losing cases, approving or asking for silly plea agreements, etc., no law firm is going to say, “great job taking care of us; we’d like to make you a partner.”

@ Consumatopia: Well, the physical isolation is justified by security concerns. I completely agree with you that the conditions should NOT be punitive, since he has not been convicted. I do not know what kind of access he has to books or other media, but I’d guess he does have access. The daily nudity could be justified by security or safety concerns, or not. We don’t know yet definitively, but the circumstances certainly make it a plausible possibility. And we have a process for looking at whether it is an abuse. Rule of law doesn’t mean that abuses never occur, after all. It does mean that they are abuses in the eyes of the law, and that there is an effective process for dealing with them.

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Rich Puchalsky 03.10.11 at 1:47 pm

Throughout American history, we’ve tortured people, and throughout American history, there have been lawyers saying that it’s legal. Not that that is uniquely American. I’m sure that right now there is some Libyan lawyer defending their system as right and good.

And the high U.S. incarceration rates are obviously racial. Andrew above mentions drug laws as if they are just there, just something that the legal system needs to deal with. But the reason they are there is so that a substantial fraction of the black population can be locked up, and everyone knows it.

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Walt 03.10.11 at 2:07 pm

The SEC doesn’t work the way you think it does, Andrew.

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Straightwood 03.10.11 at 2:18 pm

Lawyers like Andrew excel at creating “reasonable doubt.” He would like us to doubt that Manning is being abused, but what he really wants is to defend reasonable lies, i.e., falsehoods that cannot be immediately disproved (e.g., Manning could kill himself with his underwear). Much of American society is built on these lies.

Andrew would have us believe that the more aggressively an SEC attorney has prosecuted powerful corporations, the better chance that attorney has of being hired to defend the same corporations. Of course, this does not explain the remarkable diminution of SEC enforcement in recent years, but it is a very reasonable lie. Andrew would have us believe that the chief counsel of the SEC advocated policies in the Madoff affair that would directly benefit his family’s Madoff investments because of sound legal reasoning. That would be an affront to common sense, but it is a very reasonable lie.

The torture memos of Yoo and Bybee were egregious legally sanctioned lies that enabled Bush and Cheney to torture captives, but lawyers defend countless lesser lies every day as America sinks into plutocratic corruption. The coin-operated American legal system works diligently to concentrate power in the hands of the wealthy, and manufacturing reasonable lies is its main contribution to our nation’s decline.

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chris 03.10.11 at 2:26 pm

There’s less people behind bars per capita and their murder rate is lower. They must be doing something right.

Sure, but why assume that the something is related to their legal system? All of those countries have less poverty, a stronger safety net, and less racial divisiveness than the US. And I think their educational systems are less likely to give poor education to poor children.

To some extent, the US legal system furthers and perpetuates poverty and racial divisiveness, but it’s far from the only US institution to do so.

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Doctor Slack 03.10.11 at 2:40 pm

Here’s a good rule of thumb. If you are uttering this sentence:

105: The daily nudity could be justified by security or safety concerns, or not.

… about anyone in your prison system, let alone a person who has not been convicted of any crime, something is seriously wrong, and your chief concern should not be indulging bravado about how you’d stack your legal system up against anyone else’s.

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Rich Puchalsky 03.10.11 at 3:30 pm

Arguments like Andrew’s are just the kind of reason why people should give up on the law altogether. Torture is a particular set of acts, “legal” or not. All that Andrew is doing is saying that torture is legal. In that case, why bother with rule of law? The only reason to have rule of law in the first place is because it’s supposed to do things like prevent people from being tortured, and instead it’s having the exact opposite effect of justifying thug behavior as normal.

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Straightwood 03.10.11 at 4:17 pm

justifying thug behavior as normal.

As Glenn Greenwald and others have pointed out, the American legal system has established a culture of impunity for wealthy and powerful miscreants (e.g. Angelo Mozillo and Joseph Cassano), while the poor are punished mercilessly for petty crimes. Ferguson’s documentary, “Inside Job,” describes a breathtaking panorama of legalized theft by Wall Street which has resulted in next to zero prosecutions while the US Treasury has been looted to make good Wall Street losses.

As the realization spreads that the law no longer serves justice in America, our politics will become unstable. The unrest in Madison is the harbinger of nationwide strife. The culture of greed has sown the wind in America, and no army of lawyers can avert the whirlwind.

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Bruce Baugh 03.10.11 at 4:46 pm

What’s that, Lassie? Raymond Chandler wants to comment in this thread but can’t post from by the grave all by himself? Golly, girl, we’d better cut and paste from “The Simple Art of Murder”, then!

The realist in murder writes of a world in which gangsters can rule nations and almost rule cities, in which hotels and apartment houses and celebrated restaurants are owned by men who made their money out of brothels, in which a screen star can be the fingerman for a mob, and the nice man down the hall is a boss of the numbers racket; a world where a judge with a cellar full of bootleg liquor can send a man to jail for having a pint in his pocket, where the mayor of your town may have condoned murder as an instrument of moneymaking, where no man can walk down a dark street in safety because law and order are things we talk about but refrain from practising; a world where you may witness a hold-up in broad daylight and see who did it, but you will fade quickly back into the crowd rather than tell anyone, because the hold-up men may have friends with long guns, or the police may not like your testimony, and in any case the shyster for the defense will be allowed to abuse and vilify you in open court, before a jury of selected morons, without any but the most perfunctory interference from a political judge.

It is not a very fragrant world, but it is the world you live in, and certain writers with tough minds and a cool spirit of detachment can make very interesting and even amusing patterns out of it. It is not funny that a man should be killed, but it is sometimes funny that he should be killed for so little, and that his death should be the coin of what we call civilization.

I was born in 1965, into the professional class, my father an aerospace engineer, my mother a retired teacher who later went back to college for advanced education degree work. They were products of the Great Depression, and Mom in particular knew what life with real hardship was like and what a profund difference government effort on behalf of the common good could make. I knew that there was still a lot of wholly unnecessary misery and need in the world – heck, within easy walking distance of my family home, since we weren’t that far from the Northwest Pasadena ghetto. But it seemed to me that the big arc of American history was toward greater inclusion, making it possible for more and more of Them to join Us in the benefits and privileges of genuine first-class citizenship.

I knew that there were people serious about fighting that expansion. I was too young to remember Reagan as governor, but I knew about his reign and the harm it had done, and I was vividly aware of Howard Jarvis, Proposition 13, and the subsequent permanent screwing-over of my home state. And, growing up around Caltech and JPL, I knew about the strong technocratic strain of thought that found it very easy to make alliances with Orange County-style reactionary groups in the belief that their kind of next-generation repression would make the whole nation so much tidier and easier to manage.

What I didn’t know then was how much they were already winning the war, and how much stronger their victory would become. I learned only gradually how hard we’d have to fight to hold onto gains made, how really committed those forces were to taking back every concession they’d had to make when I was younger. And it took me another whole stage of life to realize that to the people who really matter in setting political and economic terms, Mom and Dad and my siblings and I are – and always were – Them just as much as the kids from Watts staying with relatives in Pasadena, the Nicaraguan and Colombian refugees, the Vietnamese boat people, and everyone else. It’s not just all of those folks that the conservative movement wants to see suffer. It’s me and mine too.

I was born into the top quintile in terms of America wealth, but to the people driving current practice, I’m scarcely more tolerable than any randomly designated dreg. And the real window of opportunity for changing the basic setup was closed long before I arrived. Maybe when racism imposed such sharp limits on the New Deal’s scope. Maybe when Reconstruction got scuttled. Or maybe back when chattel slavery first became important – sometimes I think that was like those congenital birth defects that simply cannot be removed or fixed later.

Now, each new administration teaches me new lessons about what won’t actually work to do anything constructive on the large scale about any of this.

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Bruce Baugh 03.10.11 at 5:02 pm

The paragraph beginning “It is not a fragrant world” should also have been in italics. Preview lied to me. So typical. :)

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Jerry Vinokurov 03.10.11 at 5:18 pm

Now, there are some very fair arguments to make about whether only an hour a day for exercise, and 23 hours in a cell otherwise, is humane treatment, especially for someone still not convicted of a crime.

No, there are no fair arguments to be made about this. It is inhumane, plain and simple, regardless of what Manning is accused of. He could be a serial murderer or Hitler himself, and it would still be inhumane. Because that’s a human being in there suffering, not some legal fiction.

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Rich Puchalsky 03.10.11 at 5:40 pm

Bruce Baugh: “They were products of the Great Depression, and Mom in particular knew what life with real hardship was like and what a profound difference government effort on behalf of the common good could make. “

The problem with advocating giving up on the rule of law is that you’d lose the good with the bad. Perhaps the advances that people have won outweigh the fact that we still torture people.

The problem is that that conversation can only happen with a radically more honest population than the one we have. Someone like Andrew could well make an argument that plutocracy is better for people than the alternatives. “So what if the rich get off scot free and use the law to punish the poor,” imaginary Andrew might say, “it’s still better for the poor than many other systems. You just have to keep your head down, and the system is fairly predictable. As long as you aren’t black, you’re unlikely to run foul of the law unless you set out to annoy a rich person. And there are many benefits that have been won for poor people.” I could see some people preferring that to junking the whole thing. But as a first step, we’d have to give up the baleful nonsense about rule of law and treating rich and poor alike that always gets trotted out.

The bigger problem, of course, is that it doesn’t matter what we advocate: we have no control over what actually happens. But in that case we might as well advocate what we really believe in, not be restricted by practicality. When Obama demonstrated that actual rule of law was not available in the U.S. state no matter what party was in office, he freed us from the perceived necessity of being good Democrats. At least our children will not grow up hearing the propaganda from us.

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One Party State 03.10.11 at 5:41 pm

“In the short run, and within US politics, there is little choice but to support Obama and the Dems as the lesser evil, at least as regards domestic policy.” Why does anyone maintain that the USA is a two party state. That is one of the fictions that has been maintained for decades now. It is a fundamental part of the overall strategy by the corporate/elite/money sector. Let’s all pretend that there really is a difference between the parties. Then the poor voters can struggle to identify which one best fits their interests and prejudices. And as a result the issue that there is only one party never gets addressed. A great way to maintain control of the political agenda. And the write falls for the scam by claiming the the Democrats are the lesser evil. Instead of railing against the whole process.

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ajay 03.10.11 at 5:51 pm

How long is it since any other OECD nation has run a war hero for president? Or, upping the ante, anyone who’s actually fought in a war, at least since the days of universal conscription?

It’s been quite a long time since the US had someone as president who had actually fought in a war – almost 20 years in fact. The war heroes – even the combat veterans – tend to lose most of the time. (McCain, Kerry, Gore, Dole, Bush Sr, Mondale, Ford, McGovern…)

As for other OECD nations that tend to have war heroes as leaders: Israel’s in the OECD. Other than that, true, not many come to mind. Mitterand in France (Resistance) was probably the most recent in Europe.

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Bruce Baugh 03.10.11 at 6:27 pm

Rich: The bigger problem, of course, is that it doesn’t matter what we advocate: we have no control over what actually happens. But in that case we might as well advocate what we really believe in, not be restricted by practicality. When Obama demonstrated that actual rule of law was not available in the U.S. state no matter what party was in office, he freed us from the perceived necessity of being good Democrats. At least our children will not grow up hearing the propaganda from us.

Yes! Precisely this. It’s freeing to finally think “The burden of compromising, trimming, and adjustment rests on someone else.” I’ve done my part in that effort, for a long time, and don’t have a damn thing to show for it. I may not get anywhere simply advocating for what I think is true and just and peaceful and otherwise desirable, but at least I won’t be selling myself out on the cheap anymore.

And while the Wisconsin protests couldn’t stop rotten law from getting made, it was really refreshing to see a bunch of people speaking really plainly about the needs of the day. I like that. I’m happy to contribute to it.

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chris 03.10.11 at 6:59 pm

I may not get anywhere simply advocating for what I think is true and just and peaceful and otherwise desirable, but at least I won’t be selling myself out on the cheap anymore.

I’m happy for you that your life is in a comfortable and secure enough position that you can afford to value your sense of self-righteousness and moral clarity above actual policy outcomes on any of the issues on which the parties *do* differ.

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Rich Puchalsky 03.10.11 at 7:53 pm

Chris at 120 apparently believes that if I and Bruce don’t vote Democratic next election, it’s all over. The party is finished and will henceforth always lose.

If only it were so.

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Straightwood 03.10.11 at 7:54 pm

issues on which the parties do differ

The only practical difference seems to be in the rate of aggrandizement of the American plutocracy. The Republicans are proceeding more rapidly than the Democrats, but the Democrats are not far behind. Both parties are committed to endless war, rule by the rich, and a national security state. Both parties employ propaganda technicians to persuade the common people that they are on their side while shamelessly selling influence to their wealthy campaign contributors.

This false two-party system is corrupt to the core, and nothing will change for the better in America until it is replaced with a functioning democracy.

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Bruce Baugh 03.10.11 at 8:19 pm

Chris: I’m on SSI. Washington state cut off Medicaid funding for non-emergency dentistry at the end of this year, so very necessary work is going to cost me $2000 I can very ill afford this year. I’m fortunate to have some opportunities to make a little money, and relatives able to loan me some with the expectation of long slow repayment. Others I see at the UW dental school clinic aren’t so lucky, and some of them are having to choose to let problems become emergencies, at which point they’ll be able to get payment help.

So my personal threshold of “too far” was Obama’s choices for his budget cutting panel. There are Democrats who are really good about preserving and even extending our safety net, but the administration has set itself in opposition to them, and it looks to me like I’m pretty much just a bargaining chip to be used in deciding how big the next batch of concessions for the hegemons will be, or how big the next batch after that will be. I’m pretty depressed about this – as in, the prospects here plus all the other things where my life is getting worse because of the culture of catering to the richest are taking a toll that requires larger doses of antidepressants than I’d like. And since I have cognitive problems stemming from underlying autoimmune dysfunction, the worry over what cuts are coming next and how on earth I’ll be able to ever pay for them eat into my already limited ability to do what little I can right now.

It’s in this context that I approved of Rich’s comment, because at least I can shed the burden of shaping my thoughts to pander to people I have no more wish to pander to, and can focus on developing genuinely good goals compatible with my deepest values and finding the best opportunities to advance them, wherever any may exist. Losing the effort wasted on pretending to find existing Democratic practice any more desirable, moral, or effective than I actually do for sake of contributing to some mythical unity is a distinct gain for me.

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Bruce Baugh 03.10.11 at 8:29 pm

Side note: One of the things that fucker Hayek went on about in The Road to Serfdom was how governments acting on behalf of any actual person’s good would mess up the stability that corporate bosses so need to make their beloved plans. Well, the kind of chaos that’s become the norm in this conservative movement era is really damned hard on the ability of people like me to plan. Those dental cuts in Medicaid came out of the blue, and the only surety I have right now is that there’ll be more in both state and national aid, because budgets are still fucked up and there’s no relief in sight in current practice and no effective pressure for meaningful changes. So I have to be thinking how much more of my current tiny pool of discretionary funds I can lose, what sources of happiness I’ll have to give up, what alternatives that cost less I should be cultivating so as not to have too much rotten miserable loss all at once, and like that.

In such a moment, it would be a great comfort to know that there was a president resolutely committed to protecting the safety net so many of us depend on for the duration of this economic crisis and into something that could seriously be called recovery. Failing that, it would be a great comfort to know that there was a president who wasn’t especially committed to cutting the safety net, but would at least not favor it over cuts elsewhere in the budget, and who’d make some token effort at really sharing around the burden of our times.

Instead, we have a president who chose Simpson and Bowles and continues to defend their priorities as his own. I think that matters a lot more to our nation’s prospects than whether Rich or I is happy about the realities of that.

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shah8 03.10.11 at 8:41 pm

We’re all pretty much forced into the Leninist “the worst the better” crazy mode until the system melts down to the extent that the elites start actually fighting one another over, you know, the extensive use of griefers in politics among others. The earlier the system is destroyed, the more units are available for rebuilding. Ideally, we’d like the spread of MiniMussolinis to stop, but they exist for a reason. Those reasons have to end first.

Threads like this one, I view as rather pathetic, and demostrative of why head of state functions and exec functions aren’t compatible in one leader. People spend far too much effort yelling at the top, especially people who have things they can lose.

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Straightwood 03.10.11 at 8:53 pm

the elites start actually fighting one another

We are seeing the first signs of this in the dwindling enthusiasm of some “conservatives” for the forever war. I expect that the banksters and the MIC faction will be among the first to fight over the remains of our once-vibrant economy.

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Stuart 03.10.11 at 8:53 pm

As Glenn Greenwald and others have pointed out, the American legal system has established a culture of impunity for wealthy and powerful miscreants (e.g. Angelo Mozillo and Joseph Cassano), while the poor are punished mercilessly for petty crimes.

Australians should recognize this I think, as after all it is a key part of the creation myth of their country – minor criminals, poor people with tiny debts, no doubt lots of innocents shipped from the East End and similar areas to Australia to work as virtual slaves for years. The modern US equivalent is mass incarceration of racial minorities and the poor in general to privatized prisons where they effectively can undercut the minimum wage using forced labour (on threat of solitary confinement and sometimes more), and where there is every incentive for the prison authorities to keep as many criminals behind bars as long as they can.

This system is of course fairly safe from the politicians – a large chunk of the population positively revel in the idea of locking up more and more people (particularly because so many are black), and celebrate things like commonplace rape and other abuse as being entirely deserved and appropriate, so opposition to the prison industry is dangerous, and it is an easy attack vector for political opposition (soft on crime and all that). At least in other countries politicians are disincentivised from going too far with incarceration because they have to cough up more and more taxes to pay for it, now that it is a profit center in the US it is all too easy for it to spiral upwards as quickly as politicians can find excuses to incarcerate more people.

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Rich Puchalsky 03.10.11 at 9:08 pm

Bruce is almost undoubtedly a nicer person than I am, so I’ll add a nastier answer: I was willing to value policy outcomes over moral clarity until it became clear that torture was a bipartisan U.S. consensus. That’s when I bailed. But, more than that, if there are any people out there who are really saying “All right, we torture people, but I’m going to soldier on anyways because the Democratic Party gives actually better policy outcomes in some areas,” screw them. They’d better work extra hard if they were depending on my help, because they’re not getting it.

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Barry 03.10.11 at 9:09 pm

Brett: “So I voted third party, and, while I still got somebody evil, at least I’m not complicit. Which is more than you can say today, sucker.”

Considering what a right-winger you are, and how much you hate liberals, I’ll judge this accordingly. Although you probably *did* vote for some (extreme right-wing) third party in 2008, once you realized that Obama would win – for president at least; I’m not stupid enough to think for a second that you didn’t pull (R) all the way below that..

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chris 03.10.11 at 9:34 pm

If I can’t change torture in the short term, I’ll change what I *can* in the short term, and see if anything can be done about torture in the long term. At least *part* of one party is anti-torture, even if that part doesn’t currently control the party. That shows a need for both inter- and intra-party struggles, but it’s a start.

Don’t let the door hit you in the butt on the way out, but you could at least have the decency to acknowledge that your disengagement is a form of enabling whatever outcome is decided in your absence.

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Straightwood 03.10.11 at 9:50 pm

your disengagement is a form of enabling whatever outcome is decided in your absence

By your logic, as long as there is a hair’s breadth of difference between the two parties, you will work optimistically for the preferable one. Good luck with that. The political outcomes are being decided by the wealthy. America is now a plutocracy, and until the people take back their government, squabbles between Republicans and Democrats are just a theatrical side show.

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Bruce Baugh 03.10.11 at 10:01 pm

Chris, we’re always abandoning an almost infinite variety of worthy causes for lack of time, energy, enthusiasm, courage, awareness, whatever. This very day there have been avoidable deaths and misery near you, that you could have influenced for the better if you hadn’t been here trying to browbeat Rich. So kindly take that attitude and shove it, unless you have an actual technique for apotheosis to share with us.

It’s true that there are national-scene Democrats who actually do wish to discourage torture in practical ways, and no Republicans that are. But the president is not in favor of seriously acting against torture. His administration isn’t. Congressional leadership isn’t. Those who are face opposition from their own party, often including funded challenges in primaries. The official stance of the Democratic Party is that neither those who ordered torture nor those who carried it out are to face systematic investigation and punishment, while those who reveal anything connected to the facts of torture past and present are to forfeit all rights immediately, at the discretion of the authorities.

I’m done trying to make myself act as though I find that tolerable, let alone okay.

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Salient 03.10.11 at 10:04 pm

Hey, that comment at 11 was one of the best things I can remember reading from Brett Bellmore. Credit.

you could at least have the decency to acknowledge that your disengagement is a form of enabling whatever outcome is decided in your absence

Pretty sure that Rich remains engaged in non-electoral politics, and surely part of the productive inter- and intra-party struggles you’d like to engage in involves being a bit kinder and more agreeable with people you’d like to have come back ’round into the likely-voters fold. Human beings are quite emotional creatures, and one sour experience engaging with you might kill off their desire to re-enter the fray by your side, or to donate money to a politician you are organizing for.

if there are any people out there who are really saying “All right, we torture people, but I’m going to soldier on anyways because the Democratic Party gives actually better policy outcomes in some areas,” screw them.

I suppose it depends on what you mean by soldier on. I’m torn on this one. Would love to say, screw it. Can’t bring myself to say it, especially not with what’s going on in Wisconsin, where I’m seeing a stark difference. It’s not like any state Senators there authorized torture or condone it. And if their party ID alone implies endorsement, then citizenship alone implies some level of endorsement, and I’m not giving up my citizenship, etc. And I figure, in some alternate universe somewhere, McCain just authorized the invasion of Tunisia, or signed a revised arms agreement with Mubarak, with maybe tens of thousands of people newly directly affected by the again-expanded hyper-extended U.S. security state.

I’m rather stuck thinking that Democratic presidents tinker with the lower bound for what’s despicable, and Republican presidents just roll on over the bound and find new, unanticipated lows. But I know how you feel and identify completely. And when it comes to achieving successes, let’s face it, they probably will have your help, indirectly. It’s not like you’d refuse to stand with the protesters in Madison just because a lot of them voted ticket D.

So I think what you mean to say isn’t screw them; it’s they can go shove off.

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chris 03.10.11 at 10:23 pm

Human beings are quite emotional creatures, and one sour experience engaging with you might kill off their desire to re-enter the fray by your side

He’s been quite clear that he has no desire to reenter the fray as long as both sides are imperfect in his eyes. It’s so much more satisfying to proclaim himself above it and look down on those of us with dirty hands.

You’re right, though, human beings are emotional creatures. I’m having a little difficulty not expressing my emotions toward that kind of sanctimoniousness more vehemently than I already am.

And I figure, in some alternate universe somewhere, McCain just authorized the invasion of Tunisia, or signed a revised arms agreement with Mubarak, with maybe tens of thousands of people newly directly affected by the again-expanded hyper-extended U.S. security state.

I figure that in that universe we’ve been bombing Iran for two years (McCain was quite explicit on the campaign trail about his desire to do so — maybe he would have backed away in a similar way to how Obama backed away from his opposition to the individual mandate, but do you want to bet on that?), which means the ones who weren’t killed by our bombs probably rallied behind their government instead of rising against it (they may be sons of bitches but at least they’re *Iranian* sons of bitches, which would count for a lot in circumstances like that), which means there’s pretty good odds the whole Tunisia-Egypt-etc. sequence of events never started in that universe.

The ones who *were* killed by our bombs, of course, are dead in that universe and alive in this one.

But hey, someone is being tortured in this universe too, so clearly there’s no basis on which to choose between them.

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Rich Puchalsky 03.10.11 at 10:41 pm

I’m really admiring the way in which chris is denouncing sanctimony here, really modeling a non-sanctimonious approach in fact.

I voted for Obama. If chris wants me to vote for any future Democratic politician, he’d better start telling the pols that he has contact with that they’d better stop supporting torture. It’s up to him. If he doesn’t want to do the work, then he has only himself to blame for the failure of everything imaginable.

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Stuart 03.10.11 at 10:42 pm

The thing that I would disagree with is the Republicans and Democrats being a side show – government is the only realistic break on plutocracy without losing stability (sure you can have a violent revolution to overturn things, but most people suffer far more, and the resulting power structure can all too often end up just as bad or worse anyway). The problem is that good government is very hard to get, and even harder to keep – those with power/money will always tend to try to subvert the system to protect themselves and expand their wealth and power even further (and those that don’t will be overtaken by those that do). And getting the general populace to be vigilant against abuses by their government is virtually impossible until someone they know is all too obviously affected. “First they came for the Jews” and all that.

I think there are several reasons why the US is leading the curve on this (in no particular order):

- an old written constitution, which allows virtually anything to be justified by playing with the language and interpretation, while all too easily diverting the discussion on whether a law is right or wrong to whether it is constitutional or not – the most notable example being systematic political bribery being “free speech”
– the race war allows a divide and conquer tactic much more effective than is possible in most countries
– the size and wealth of the country, this has several effects such as the size of bribes and kickbacks is that much larger than that in smaller countries, but there are about the same amount of influential politicians to accept the bribes, and they control larger budgets on average making bribes to politicians more lucrative
-the failure to institute a proper comprehensive national health care system back before the health insurance industry was too entrenched to be taken on by politicians, which leaves the majority of people far too dependent on their employers
-the US has been particularly bad for undermining unions. While it is entirely natural and expected for union participation to decline in modern economies as a large portion of the population has better mobility and transferable skills in industries that are less dominated by a few big players and therefore they are in a better bargaining position, however this has allowed the industries where unions are still absolutely necessary to become more isolated and demonized, particularly by the right wing press
-Obviously you have various other things – the US media, the US military/economic empire, massive reliance on imported oil, etc.

Going back to the original point, the reason I say the R vs D is not a sideshow is that on every key issue the Democrats are much closer to helping solve it than the Republicans. As with Wisconsin though, the US public needs to ride them much harder to do the right thing, and then reward them for doing so (and have patience with them when they can’t solve various intractable problems handed off to them by the outgoing Republican incumbents). Even the worst case with Democrats in power tends to be more or less the status quo, rather than actually making it worse.

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Bruce Baugh 03.10.11 at 10:57 pm

Chris, a practical question. Since torture is not too high a price to pay…what would be? Since it seems very unlikely that the Democratic Party as a whole will ever become precisely as bad as the Republican Party, do you think that they’ll always be worth supporting? If Obama decides that we need a war with Iran after all, would that dissuade you? Would the full-bore privatization of Social Security do it? Is there any point at which you’d say “Wait, that’s intolerable”?

Please note that I’m not asking you to assess the likelihood of any such truly awful situation, and for a simple reason I think is a good one. I believe I’m not alone in feeling that if in 2000 someone told me that by 2008 both parties would be openly defending the practice of torture, I wouldn’t have believed it. Likewise with the blanket immunity for telcoms in wiretapping, the rush to accept 9% unemployment and 20% underemployment as structural, and a lot else. Crises change things. I don’t so much expect either of the above as I do expect more weird and horrific things in response to calamities I’m not expecting yet. If you would like to drop in other really improbable-sounding disastrous policies, please feel free. This is about boundaries and not where you think you are with relation to them right now.

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Andrew 03.11.11 at 2:19 am

Rich @111: You seem to be asking what good is rule of law if some of the laws are wrong. The short answer is that rule of law is not sufficient for society to have a basically just set of rules or a just governance; but it is necessary for that. And the issue here – again – has been whether America has rule of law, not whether you think the long-held opinions that such treatment CAN BE constitutional are correct or not.

I don’t consider being forced to sleep naked at night “torture” under all circumstances, incidentally. I also don’t think such a practice respects a person’s rights under all circumstances, of course. If you think otherwise, then obviously your opinion of Manning’s treatment will differ regardless of whether such measures are prudent to safeguard his well-being.

And I would think it slightly ridiculous to decide the Democrats no longer merit my support because one prisoner may have been treated – CONTRARY to the rule of law – vindictively.

Straightwood @108: We learned of the SEC lawyer’s conflict of interest (which he disclosed to the SEC) because of a lawsuit seeking to recover funds from that lawyer – and the policy that lawyer recommended, incidentally, will be ultimately decided by a judge. This is an excellent example of how the distribution of power in America’s legal system – impartial courts and multiple levels of review, and broadly distributed powers to sue – helps to counteract possible abuses by those in a position of authority (I say possible because despite the clamoring from the GOP, it’s not clear there was any). Today saw the second day of the trial of Raj Rajaratnam, who managed one of the largest hedge funds in the world. Numerous executives have been prosecuted, and imprisoned. We can trade anecdotes endlessly.

Rich generally: It is unfortunate that the wealthy are able to afford great lawyers and legal advice, and so derive more benefit from the system, in some ways, than those with less resources. This is largely because, though, the wealthy are able to make better use of the rights they receive under law. A poor defendant receives the same set of rights, but his lawyer may not be as skilled in using them. Should we do more to achieve equality, by increasing the resources available to poorer clients? Yes. But you seem to believe that unless the law achieves perfect equality of access, and perfect equality of judgment, then we cannot talk about rule of law. That’s nonsense. We do achieve a rough equality, where the billionaire hedge-fund manager and the indigent accused terrorist both get access to counsel, and to the same set of legal rights, and to the same presumption of innocence.

Doctor Slack @110: I defer to your more considered and expert judgment on the number of hours a person may be confined to one space, and the limits of a prisoner’s ingenuity in devising ways to harm himself, if that is his considered goal.

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Doctor Slack 03.11.11 at 3:06 am

I defer to your more considered and expert judgment

Why, thank you for noticing, Andrew. I’m dreadfully handsome too, incidentally.

Forced nudity is of course well-established as a torture and humiliation technique from at least the Second World War until the present day. I’m sure you can mount an excellent argument as to why the psychological stresses imposed thereby are less of a risk for self-harm than letting a prisoner wear clothing. (Actually, I’m not sure you can, but in the interests of reciprocating the kind compliment you paid me I will at least hold on to some hope.)

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Andrew 03.11.11 at 3:19 am

Sure Doctor, and body-cavity searches were also used to humiliate and degrade. But they also have a proper purpose, of ensuring that no contraband is being smuggled into a prison. As to forced nudity, at hospitals across the country forced nudity occurs every day. It’s not torture of course.

Context matters. The question of why he was naked matters. The issue doesn’t resolve as easily as you seem to believe.

As to the many ways a desperate person can devise to harm himself, I think it, if the risk is there, prudent to ask that no boxers be worn at night while sleeping.

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logern 03.11.11 at 4:33 am

I refuse to believe that the conversations in the White House between Bush, Cheney, Rumsfeld, Rice, etc., sound much like the conversations there today with Obama and Company.

Even if the results in some of these areas may not look much different. There’s a difference between happily going forth into the quagmires, and… (whatever they’re doing there these days.)

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Rich Puchalsky 03.11.11 at 5:00 am

Oh no, Andrew is being wrong on the Internet. Am I supposed to Google Bagram for him?

But here’s what really boggles me:
“And I would think it slightly ridiculous to decide the Democrats no longer merit my support because one prisoner may have been treated – CONTRARY to the rule of law – vindictively.”

The President knows and presumably approves of this one case, since it’s a cause celebre. So what is the rule of law, if it can be suspended whenever powerful people want it to be? The sometimes rule of law? The rule of law for non-powerful people? And what is the magical number of people? Let’s say the President orders one American citizen to be rubbed out without trial. Oops, he did. And actually, it was legal under current rules, because current rules are that what the President says goes. All right, let’s say that he somehow found a way to do it illegally. How many people does it take for us to be no longer living under rule of law? Does it have to get up to a really big number? Or can it be, say, just one family? Does it matter if you know who the family was, or see their picture in the media?

logern’s thing is weird too. Does it matter whether Obama and Co have a Darth Vader breathing sound going on when they talk, as Cheney presumably did? I guess they are the nicer, more considerate warlords. Isn’t what really matters is that they protected past torturers and are continuing to torture?

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Salient 03.11.11 at 5:00 am

Andrew, it’s like you’re saying that Manning is potentially suicidal. You do agree that they’re obviously lying about that, right? I guess I could go on about how he hasn’t been evaluated by an independently chosen psychiatrist and they’re not letting the Red Cross visit with him and so on and so forth, but …. I mean, what’s the point? If you are assigning any credibility to their claims, that kind of shuts down communication between us, because I can’t even conceive of how someone could believe their claims in good faith. Mayhap that’s my failing.

Manning is not suicidal. He has shown no evidence of suicidal thoughts or behavior. I take these things as reliable facts. If you don’t, well, that’s kind of the problem right there. Walking by a playground and seeing a bully grab some frail kid’s arm and start hitting him with it while yelling “stop hitting yourself,” would you think, aww, I wonder why that poor frail kid has such self-harm issues, and isn’t it nice of that big muscular boy to try and save the poor frail kid from himself?

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maidhc 03.11.11 at 7:20 am

Andrew: A poor defendant receives the same set of rights, but his lawyer may not be as skilled in using them.

This reminds me of the 1997 Australian film The Castle, in which a working class family triumphs in court when through happenstance their incompetent lawyer is replaced by an eminent QC who makes essentially the same argument. And other amusing things happen.

Question for non-Americans. Would you consider the following joke peculiarly American, and not very appropriate in your own country?

“Some jerk in a BMW cut me off in traffic, and I was about to honk at him. Then I saw it was my lawyer, so I felt good about it.”

I forget which comedian I heard tell it, but it seemed to go over pretty well with an American audience.

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novakant 03.11.11 at 9:04 am

#133

Party membership and citizenship are in no way comparable – party membership (and voting) is an active choice, citizenship is not, party policy defines a party, a government doesn’t define a country.

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Salient 03.11.11 at 9:45 am

Party membership and citizenship are in no way comparable

My sentence got mangled there in an edit, the bit about party ID in particular. To try again: if participating in an election to elect one person as a Democrat makes you complicit in everything any Democrat is doing, then that definition of ‘complicit’ is quite broad, and it seems reasonable to infer that paying your taxes makes you complicit in what your government is doing. Instead of citizenship, I should’ve said that I pay my taxes.

party policy defines a party

No it doesn’t, we’re not anywhere close to a parliamentary democracy. There is little to no coherence between state, local, and federal party platforms, there’s little adherence to them, and there’s stark intra-party discrepancies between the stated policy of different branches of government. Granted, the Republicans seem to be doing this and unifying around the same policy platform at all levels of government, but it’s certainly not true that party policy defines the Democratic party. So I don’t really feel that the party ID of a politician makes them all that complicit in the evils perpetrated by others who carry that party ID. The fact that a Dem is a Dem doesn’t tell you hardly anything about their policy pursuits.

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logern 03.11.11 at 11:09 am

@142 —logern’s thing is weird too. Does it matter whether Obama and Co have a Darth Vader breathing sound going on when they talk, as Cheney presumably did? I guess they are the nicer, more considerate warlords. Isn’t what really matters is that they protected past torturers and are continuing to torture

Perhaps it is weird. At the moment I feel this Bush/Obama comparison may warrant the commentary of watching two drivers careening at high speed through traffic. Are they both maniacs, or does one have a stuck accelerator, or some issue I’m not yet considering? I don’t feel I have enough information – and my criteria for really getting worked up on torture may run a bit higher than the bare minimum needed even though this may indeed meet a minimum standard of torture (if there is such a thing as a minimum). I would like to think that reasonable people don’t consider all forms of torture equal with Manning’s torture, and if they do, it is to their discredit, so it is indeed important to control your hysteria to the appropriate degree, lest you degrade it for the even more unfortunate.

Unfortunatly, perhaps, Manning matters more than the average American prisoner because he is currently a political tool of opposing sides.

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chris y 03.11.11 at 12:15 pm

Would you consider the following joke peculiarly American, and not very appropriate in your own country?

I don’t think it would get a laugh in Britain. 95% of the audience wouldn’t have anybody they thought of as ‘their lawyer’, nor would those who did assume that unprovoked aggression was a good technique in pursuing a case.

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Andrew 03.11.11 at 12:28 pm

Rich @143: I don’t think President Obama has ANYTHING to do with the determination that Manning needed to sleep nude in his cell. Do you? And so I find this attempt to leverage Obama and Cheney into the same box a bit weak, at least if Manning’s treatment is the evidence for the proposition.

Salient: My understanding is that Manning is under a “prevention of injury” order, and not suicide watch. I’ve heard it reported that when Manning found out on Wednesday that his request to be removed from prevention of injury status had been denied, he apparently claimed that if he really wanted to hurt himself he could do so with his flip-flops or the elastic of his boxers. At that point, the decision was made to have him sleep without the boxers and flip-flops.

Now, it’s also been reported that the brig psychiatrist thereafter deemed him a “low suicide risk,” but that doesn’t answer the question of whether the removal of boxers and flip-flops at night is justified. From the perspective of someone who is fully responsible for Manning’s health and safety, a threat, even if sarcastic, against Manning’s life might be treated, reasonably, with the same sense of caution with which a sarcastic threat of physical violence against a guard would be treated. Given Manning’s circumstances, and history, I’d say sensitivity to such remarks is reasonable.

My understanding of Manning’s current conditions is: no boxers or flip-flops at night. During the day he is permitted only one book or magazine in the cell at a time, and is limited to one hour of television time and one hour of exercise.

As to the credibility of Manning’s lawyer… Manning’s lawyer is doing what any good lawyer should do. But this includes claiming that the military visited “essential blindness” on Manning when his prescription eyeglasses were removed – except apparently when Manning was reading or watching tv – when he was placed on suicide watch a couple of months ago.

So, if something more comes out that shows the removal of the boxers to have been vindictive, and not motivated by reasonable safety concerns, then I’ll change my mind. But at present, I don’t see enough to be convinced – and I certainly don’t see enough to elevate this to a case of torture.

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Salient 03.11.11 at 2:15 pm

he apparently claimed that if he really wanted to hurt himself he could do so with his flip-flops or the elastic of his boxers. At that point, the decision was made to have him sleep without the boxers and flip-flops … Given Manning’s circumstances, and history, I’d say sensitivity to such remarks is reasonable.

I think the meaning of his statement is perfectly unambiguous (he is asserting that their stated justifications for their mistreatment of him are self-evidently bullshit), and it takes remarkable insensitivity to his remarks to interpret them literally, but that’s just me I guess.

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Bruce Baugh 03.11.11 at 2:15 pm

In a footnote-y sort of way, I’d like to note that I’m not much of a single-issue voter. But when the presidential champion of torture also puts the guys responsible for global economic disaster in charge of the economy, it’s that much easier to say “This is not anything I can support anymore.” The decision to stop endorsing Democrats just because would be harder if the party, as a party, were actually committed to a bunch of really good things alongside being committed to torture.

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Straightwood 03.11.11 at 2:33 pm

So, if something more comes out that shows the removal of the boxers to have been vindictive, and not motivated by reasonable safety concerns, then I’ll change my mind. But at present, I don’t see enough to be convinced – and I certainly don’t see enough to elevate this to a case of torture.

I believe that being placed in Manning’s circumstances would change your mind very quickly. But, of course, that could never happen to a proud American attorney.

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chris 03.11.11 at 2:42 pm

This is about boundaries and not where you think you are with relation to them right now.

Boundaries have to be drawn based on the space of possible outcomes. Drawing them a priori leaves you vulnerable to having your entire boundary-drawing system become irrelevant because you can’t distinguish between anything that might actually be achievable.

If you draw a boundary around “pulling a switch that starts a machine that will kill someone”, then you’ll be kind of stuck when you encounter a trolleycar problem. (Actually, modern American politics bears quite a lot of resemblance to a trolleycar problem. The track with less death and suffering on it still has *some* death and suffering on it… but you have to choose it anyway, and even put effort into it if effort is necessary, because the alternative is worse. Throwing up your hands and saying “both tracks are unacceptable” only prevents you from doing anything to stop the worse outcome.)

The decision to stop endorsing Democrats just because would be harder if the party, as a party, were actually committed to a bunch of really good things alongside being committed to torture.

Like, say, equal pay for women, more human rights for gays, the right to form unions, improved access to health care for the poor, putting most of the tax burden on the people most able to afford it, and making some attempt to bring the economy out of recession? For a non-single-issue voter, you have an amazing ability to ignore all other issues while focusing on one single issue in order to claim that the parties aren’t really that different.

Heck, even on the one other issue you do mention, the financial industry, there’s a world of difference between “The financial industry should be subject to regulation to reduce the danger it poses to the economy” and “Government should butt out of the financial industry because business knows best”.

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Straightwood 03.11.11 at 3:13 pm

Heck, even on the one other issue you do mention, the financial industry, there’s a world of difference between “The financial industry should be subject to regulation to reduce the danger it poses to the economy” and “Government should butt out of the financial industry because business knows best”.

Declarations are irrelevant; it is action that determines character, both of individuals and political parties. The record shows the Democrats and Republicans to have been equally culpable in enabling the Wall Street fiasco. Obama’s #1 contributor was Goldman Sachs, and his current chief of staff is an ex-JP Morgan executive.

Americans seem to have become persuaded that reality exists only on the surface of things, and that the posturing of a political party is equivalent to its actions. This is a dangerous delusion. Under a Democratic President, next to nothing has been done to punish criminal mischief on Wall Street, and the regulatory “reforms” enacted are so feeble as to guarantee another, even larger, collapse in the near future.

The facts condemning the Democratic party are plain: financial regulation is a joke; Wall Street bonuses are soaring; and the middle class, so beloved of the Democratic Party, is sinking further into misery.

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Consumatopia 03.11.11 at 3:36 pm

If forced nudity of Manning is permissible, I don’t see how forced nudity of any prisoner could be forbidden. If the argument is that Manning is not being singled out for mistreatment, that implies that we are mistreating all of our prisoners.

In any event, I would agree that tying Obama to Manning is a distraction. Obama’s greatest abuses of power are not w.r.t. to Manning, they are the continued indefinite detention system (though I’m not sure that the failure to close Guantanamo actually makes this worse–Obama’s been talking about a “fifth category” of detainee receiving no hearings at all for “preventative detention” since mid-2009), assassination by executive order of American citizens, torture-by-proxy–by handing our prisoners over to countries that practice torture, and a complete lack of accountability for past abuses.

And on the horizon, people are talking about starting the crypto-wars from last decade over again–requiring internet services to build backdoors into their systems. I’d say that’s actually a much bigger deal than any of the wiretapping abuses that occurred during the Bush administration

I can understand someone claiming that these abuses are not, in utilitarian terms, sources of great amounts of aggregate suffering, compared to the abuse of prisoners going on in the ordinary penal system, or even compared to the suffering of uninsured sick people. In fact, I’m coming to that view myself. Perhaps I was only so enraged by these abuses before because I was stupid enough to take pride in the American rule of law–to think that we don’t do that kind of thing here. In that perspective, when abuses occurred, they weren’t just bad things that happened, they were bad things that were done in my name. My perspective became more rational once I abandoned that pride. Is our system worth being proud of it? No. But is American abuse of detainees the world’s greatest problem, or even America’s greatest ongoing sin? Probably not.

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chris 03.11.11 at 3:57 pm

The record shows the Democrats and Republicans to have been equally culpable in enabling the Wall Street fiasco.

No, it shows them to have been both culpable. The inequality of their culpability is blatantly obvious to anyone paying the least bit of attention.

Perhaps I was only so enraged by these abuses before because I was stupid enough to take pride in the American rule of law—to think that we don’t do that kind of thing here.

But that was always a lie. We had hardly abandoned slavery, massacres of Native Americans, and the capture of local governments by the KKK when we started locking up Japanese-Americans for being Japanese-Americans and dropping nuclear weapons on cities. The idea that America had a golden age of high moral standards can only be founded on massive ignorance or a very strong determination to reach that result regardless of what the evidence says.

There aren’t any countries with completely clean hands and there probably never will be. Relative degrees of harm are the only game in town.

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Straightwood 03.11.11 at 4:09 pm

The inequality of their culpability is blatantly obvious to anyone paying the least bit of attention.

The Clinton administration presided over major deregulation and globalization initiatives that set the stage for the Wall Street meltdown. Distinctions that don’t make a difference are distractions. The ability of the Democratic party to capture and neutralize reformist energy is a great aid to the American plutocracy, and the plutocracy takes good care of those who serve it. Ex-Senator Dodd’s new job as chief lobbyist of the MPAA (salary: $1.5 million) is a perfect example of how such loyal service is rewarded.

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sg 03.11.11 at 4:43 pm

wow andrew, you’re a shining beacon of humanitarian compassion. Keep those observations on human rights coming!

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Rich Puchalsky 03.11.11 at 5:12 pm

“In any event, I would agree that tying Obama to Manning is a distraction. Obama’s greatest abuses of power are not w.r.t. to Manning, they are the continued indefinite detention system (though I’m not sure that the failure to close Guantanamo actually makes this worse—Obama’s been talking about a “fifth category” of detainee receiving no hearings at all for “preventative detention” since mid-2009), assassination by executive order of American citizens, torture-by-proxy—by handing our prisoners over to countries that practice torture, and a complete lack of accountability for past abuses.”

The reason that people want to go on about Manning here is because they can pretend it’s one case. I mentioned Bagram earlier, but I don’t have the energy to Google for people. Lack of accountability for past abuses is, by the way, not just choosing not to look back, as Obama puts it — it’s against the law, since it’s against treaties we’ve signed. But who cares.

Consumatopia’s utilitarian argument gets back to the question I raised before — can we honestly defend our system? Surely we can, but we’d have to give up on the “rule of law”, which doesn’t exist. Once it’s acknowledged that it doesn’t exist, a whole lot of the reason for having a state goes away. Sure, without the state protecting poor people insofar as it does, they may be worse off. But they are also preyed on by rich people who use the state’s legal system against them. Which is worse? It then becomes a utilitarian question with arguments on each side.

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Bruce Baugh 03.11.11 at 5:52 pm

Rich: Agreed, a lot, about the implications of deciding to accept the reality that there is no rule of law except at the whim of the rulers, which is of course not the rule of law at all.

There is this about the Manning case, btw – it’s wholly and entirely the current administration. I don’t much respect arguments that it’s just too complex to shut down inherited evils like the Bagram detentions, but I grant that practice can be messy. I don’t think that anything involved amounts to justification for inaction, but I can believe that a sincere effort to do the right thing would nonetheless take some time to do right. Manning, however, isn’t inherited business, and so all the legacy arguments drop off. This is kind of handy in illuminating just what it is that our current rulers are up to.

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chris 03.11.11 at 6:07 pm

Bruce Baugh: Manning, however, isn’t inherited business, and so all the legacy arguments drop off.

Misleading, at best — Manning is new, but the people, practices, and institutions involved with him are not (let alone the wars and the wartime mentality that created those practices and institutions and trained those people to follow them). In theory you grant that practice can be messy, but in practice, practice never seems to be good enough for you, so your protestations of not applying an impossible standard ring rather hollow.

I don’t expect much morality out of any wartime government, and history backs this up pretty damn thoroughly. This corrosive effect of wartime mentalities on the behavior of belligerents is a major reason to oppose war, of course, and I think Obama *is* trying to end the wars, in a way that won’t recoil too obviously on the nation and therefore on him, and that that will probably take some time but he may eventually succeed at it.

Straightwood: The ability of the Democratic party to capture and neutralize reformist energy is a great aid to the American plutocracy, and the plutocracy takes good care of those who serve it.

If that’s the worldview you’re committed to, I doubt any evidence could possibly dent it. Even the plutocracy employing every weapon in its possession to destroy the selfsame Democratic Party and any organization, institution, or even demographic group believed to support it. I suppose you think that’s all a charade to give them street cred?

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Helper 03.11.11 at 7:28 pm

“It then becomes a utilitarian question with arguments on each side.”

If I understand you correctly, I’m weeping with you.

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Bloix 03.11.11 at 7:34 pm

#23 – “There is no real difference between Obama and Bush in terms of security / civil liberties, despite all the promises that Obama made during the primary.”

This is completely wrong. Bush headed up a government that was intent on imposing a corrupt one-party state that would use the criminal to steal elections and suppress dissent.

Obama is a stunning disappointment in his lack of respect for civil liberties but he does not head a political organization that is intent on turning the United States into a fascist regime.

Those who think that “there’s no difference” is deluding themselves. There is an enormous gulf between bad and intolerable.

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Henri Vieuxtemps 03.11.11 at 7:58 pm

Obama is a stunning disappointment in his lack of respect for civil liberties but he does not head a political organization that is intent on turning the United States into a fascist regime.

Well, there is an alternative view: that the organization is exactly the same, and neither Bush nor Obama heads it; they are just PR guys, figureheads. Like in that cartoon someone linked to recently here: ‘the “change” button? ha-ha-ha, a good one.’

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Rich Puchalsky 03.11.11 at 8:12 pm

Obama is actually more harsh on whistleblowers than Bush was, and has gone farther in terms of justifying Presidential authority to order assassinations than Bush did. Was Bush really intent on turning the U.S. into a fascist regime? One could have certainly resulted from the consequences of what Bush did, but I don’t think that that was really what he was aiming for. He was aiming for plutocracy. Obama is doing even better in that way, because people don’t imagine the Darth Vader breathing noise when they think of him and his cronies, evidently.

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Consumatopia 03.11.11 at 8:50 pm

@159 “Surely we can, but we’d have to give up on the ‘rule of law’, which doesn’t exist. Once it’s acknowledged that it doesn’t exist, a whole lot of the reason for having a state goes away. Sure, without the state protecting poor people insofar as it does, they may be worse off. But they are also preyed on by rich people who use the state’s legal system against them.”

The system as a whole has some predictable properties, even if adherence to its own stated rules is no longer one of them. One way to look at a set of abuses is “Does the fact that people like this can be abused increase the likelihood that I would be abused?” People may have judged that they are unlikely to ever be suspected of terrorism, therefore anything we do to suspected terrorists is unlikely to affect them. OTOH, if the government were ever unrestrained enough to abuse the wealthy, then that would prove that anyone, even the most powerful, could be subject to abuse. Therefore, they might ignore the abuse of suspected terrorists while watching carefully the abuse of the wealthy, even if they are not wealthy themselves. I guess the standard is “do not abuse anyone with at least as much political capital as me”.

This way of thinking assumes that “people like us”, typical voters, will always have as much power within the system as they do now. Which I don’t think is a safe assumption at all, in particular, if whistle-blowers can be put in the “suspected terrorist” category, then that weakens the ability of People Like Us to monitor how the government treats them–in a worst case scenario, any officials who object to a coup would be “suspected terrorists”, and then People Like Us would be shut out of the loop entirely. It’s not likely that this will happen this year. But, picking a random year in the past decade, it’s not likely that that was the year housing prices stop going up. Supporting a Rule of Law For Me But Not Thee is like betting housing prices will always go up–most of the time you’ll be right, but, oh man, someday we’re all going to be painfully wrong.

It also means that our law enforcement and military systems aren’t standing up for national principle, they’re just providing a transactional service. They aren’t serving the nation or the “free world” as a whole, they’re the equivalent of mall security, just protecting what they’re paid to protect and hurting whoever they have to in the process. In which case it doesn’t seem right to ask for the level of sacrifice that we expect from them–we’re still asking them to die for the cause of freedom and law as if we still believed in it, but we clearly don’t. “My nation” is like “my landlord”–I owe them taxes and rent, not allegiance and sacrifice.

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Henri Vieuxtemps 03.11.11 at 8:55 pm

@166 I guess the standard is “do not abuse anyone with at least as much political capital as me”.

“What the Gospels actually said was: don’t kill anyone until you are absolutely sure they aren’t well connected.” Slaughterhouse 5

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ScentOfViolets 03.11.11 at 9:07 pm

#23 – “There is no real difference between Obama and Bush in terms of security / civil liberties, despite all the promises that Obama made during the primary.”

This is completely wrong. Bush headed up a government that was intent on imposing a corrupt one-party state that would use the criminal to steal elections and suppress dissent.

You say that “this is completely wrong”, but then you don’t address what was said; instead you talk about something else with only a tenuous connection to what was said. Especially since most people don’t particularly care whether there is just one or really two parties that are suppressing dissent yadda yadda.

Those who think that “there’s no difference” is deluding themselves. There is an enormous gulf between bad and intolerable.

There may be a few who think this; their numbers are small as a rule inconsequential in general elections. You’d do well to focus on the much larger group of people who voted for Democrats in 2008 on the strength of certain campaign promises and who won’t bother to show up in 2012 for a bunch of welshers.

And why should they?

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ScentOfViolets 03.11.11 at 9:09 pm

Let’s try that again:

#23 – “There is no real difference between Obama and Bush in terms of security / civil liberties, despite all the promises that Obama made during the primary.”

This is completely wrong. Bush headed up a government that was intent on imposing a corrupt one-party state that would use the criminal to steal elections and suppress dissent.

You say that “this is completely wrong”, but then you don’t address what was said; instead you talk about something else with only a tenuous connection to what was said. Especially since most people don’t particularly care whether there is just one or really two parties that are suppressing dissent yadda yadda.

Those who think that “there’s no difference” is deluding themselves. There is an enormous gulf between bad and intolerable.

There may be a few who think this; their numbers are small as a rule inconsequential in general elections. You’d do well to focus on the much larger group of people who voted for Democrats in 2008 on the strength of certain campaign promises and who won’t bother to show up in 2012 for a bunch of welshers.

And why should they?

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Rich Puchalsky 03.11.11 at 9:46 pm

“The system as a whole has some predictable properties [...]“

That’s the heart of the defense of our current system, I think, and it’s a serious one. The only people who still pretend to believe in rule of law and so on are lawyers like Andrew who make their money off of that pretense. But ordinary people have some sense that they know the risks that apply to them and that they know how the system is likely to react. That’s a real benefit of sticking with a corrupt system, because the worse it is, the more radical a change is needed to get out it, and therefore the more unpredictable the change will be.

“It also means that our law enforcement and military systems aren’t standing up for national principle, they’re just providing a transactional service. They aren’t serving the nation or the “free world” as a whole, they’re the equivalent of mall security, just protecting what they’re paid to protect and hurting whoever they have to in the process.”

Yep.

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Straightwood 03.11.11 at 9:48 pm

Obama was asked about Manning’s treatment at a news conference today and parroted the Pentagon’s line. QED.

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logern 03.11.11 at 10:02 pm

Sure, I note differences between parties once in awhile. But you have to itemize.

” U.S. government drops its defense of Defense of Marriage Act as constitutional”

but then (Darth Vader breathing)

“Boehner and the Republican controlled House Legal Advisory Committee direct the House Counsel to defend DOMA. “

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novakant 03.11.11 at 11:42 pm

#146

I still don’t see how voting for a party or being a party member can be compared to paying taxes as far as complicity is concerned.

Most citizens are forced to pay taxes and there are severe penalties for not doing so – it’s not a choice. I’m pretty sure most Germans who ended up in Nazi death camps had been paying taxes before and you wouldn’t want to call them complicit, would you?

Supporting the Democrats or Republicans, on the other hand is an active, unforced choice, and John was specifically talking about supporting Obama and the Democratic party as the lesser evil and previously on this blog voting for Labour was advertised in a similar manner, despite Iraq etc. This have your cake and eat it approach is fundamentally flawed in my view.

And while I acknowledge your point about the differences between presidential and parliamentary systems, it’s not as if there is no connection between the party and their representatives.

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piglet 03.12.11 at 1:57 am

Andrew 140: “As to forced nudity, at hospitals across the country forced nudity occurs every day.”

Is that true? I had no idea things were that bad. Never been in a US hospital.

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newspeak 03.12.11 at 2:01 am

What’s fascinating about this thread is the Dem apologists’ exclusive focus on the permissible electoral alternatives. Any other form of public participation is implicitly inconceivable, and that makes failing to vote for the least-worst an immoral, even treacherous act. One of the things that has brought us to this pass is the state’s success in driving all civil society down two party cattle chutes. In people indoctrinated to this world view, the parties’ monopoly on civic participation goes unquestioned. That way state-sanctioned parties can stop reforms that might impede an overreaching state. Coercive official repression of the Greens shows that parties are not authorised to improvise reforms. NGOs and other forms of free association have no role.

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Rich Puchalsky 03.12.11 at 12:42 pm

Andrew: “I don’t think President Obama has ANYTHING to do with the determination that Manning needed to sleep nude in his cell.”

Wrong. At a press conference, Obama was asked about this. He said that he’d asked the DOD about Manning’s treatment specifically. He hadn’t told them to change it, which he could have as commander in chief.

If the U.N. investigator finds that Manning is being tortured, then Obama is responsible.

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Andrew 03.12.11 at 2:54 pm

Consum @155: If forced nudity of Manning is permissible, I don’t see how forced nudity of any prisoner could be forbidden. If the argument is that Manning is not being singled out for mistreatment, that implies that we are mistreating all of our prisoners.

Again, this depends on circumstances. Under some circumstances, forced medication of prisoners is not forbidden. If a prisoner poses some danger of hurting himself, nudity at night may be indicated. I understand the skepticism that Manning really does pose such a danger.

Sg claimed that I simply lack compassion. But it is precisely my sensitivity to Manning’s circumstances that incline me to find it plausible that there is a danger of him hurting himself. And, again, if further evidence becomes available, I’ll change my view.

Remember that the commander of that brig is completely responsible for Manning’s safety and well-being. Caution on his part wrt to that safety and well-being is understandable.

Rich @175: Yes, after my comment Obama held a conference and mentioned that he asked about Manning’s treatment – after the fact. And he said the decisions were being made in the interest of Manning’s safety.

Rich @142: So what is the rule of law, if it can be suspended whenever powerful people want it to be? The sometimes rule of law?

It can’t be suspended whenever powerful people want it to be. Powerful people can break the law, of course, by abusing their power; but the system does a decent, albeit imperfect, job of holding them accountable.

The rule of law for non-powerful people? And what is the magical number of people? Let’s say the President orders one American citizen to be rubbed out without trial. Oops, he did. And actually, it was legal under current rules, because current rules are that what the President says goes.

That’s a highly tendentious reading, to put it politely. It’s not “what the President says goes.” The President cannot legally order that Michael Moore be assassinated, for example. If Michael Moore were to move overseas, and become a combatant in a hostile military, the situation would be quite different. The status of one’s citizenship is not the only factor in determining whether one is a legitimate military target on a field of battle.

The sense I get from your comments Rich is that you don’t like certain laws; that’s fine, and neither do I. But that has nothing to do with whether we have rule of law.

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Rich Puchalsky 03.12.11 at 3:11 pm

“The sense I get from your comments Rich is that you don’t like certain laws; that’s fine, and neither do I. But that has nothing to do with whether we have rule of law.”

There is no law that says that the President gets to have people assassinated. In fact, there are laws that say the opposite. This is not a matter of not liking certain laws, it’s a matter of the law being defined as whatever the President can get away with.

At some point, if you care at all about whether you’re just ignorantly defending torture, you’re going to have to actually find out about these things. Anwar al-Awlaki did not “become a combatant in a hostile military.” He was marked for assassination because:

“American counterterrorism officials say Mr. Awlaki is an operative of Al Qaeda in the Arabian Peninsula, the affiliate of the terror network in Yemen and Saudi Arabia. They say they believe that he has become a recruiter for the terrorist network, feeding prospects into plots aimed at the United States and at Americans abroad, the officials said.”

Is he guilty as charged? Who knows? The people who have seen the secret evidence say that they are sure, so we’re killing him without trial.

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Andrew 03.12.11 at 3:51 pm

Rich, I used Michael Moore as an example in two different circumstances to illustrate that factors other than citizenship are important. I said nothing as to whether AQAP is a “hostile military.” As always I appreciate the advice to better educate myself.

Now, as to Awlaki, the asserted justification is that he has become an active combatant in an organization against which Congress has authorized military action – he is no different than an American citizen that elected to travel to Germany in 1943 and take up an operational role in the German military. “American counterterrorism officials” have released numerous quotes about Awlaki – not simply the one you post above – but that is what the justification comes down to.

The President is acting pursuant to Congress’s authorization of military force, and presumably pursuant to certain other statutory requirements that may or may not apply to actions such as this.

The question is not whether Awlaki is guilty; Awlaki isn’t being charged with a crime, and his identification as a target is a separate matter from whether he has committed any crimes.

You may prefer that we have some form of judicial oversight of such identifications when they involve American citizens in a war that is more amorphous than nation-state conflicts. There are plausible arguments for and against the wisdom of having such oversight, but at present, in our law, for Awlaki’s circumstances, they do not exist.

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Rich Puchalsky 03.12.11 at 4:02 pm

Well, I think that your comment is what defense of the rule of law comes down to. One starts out with a simple principle of long standing: that the executive is not a King who can simply order people to be killed. Then a lawyer gives a long explanation of why although a particular instance *looks* like that, it really isn’t — Awlaki isn’t being charged with a crime, he an active combatant in an organization (not a nation) which we are at war with (?) so his taking up an operational role (?) is no different than if he fought for Germany in WW II (??). So at the end, although a person exists — or rather, doesn’t; he’s probably been killed — and killers exist, the law in all of its majesty is untouched, because it doesn’t apply.

That is exactly why we should give up on rule of law. It doesn’t do anything except excuse.

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ScentOfViolets 03.12.11 at 4:34 pm

You may prefer that we have some form of judicial oversight of such identifications when they involve American citizens in a war that is more amorphous than nation-state conflicts. There are plausible arguments for and against the wisdom of having such oversight, but at present, in our law, for Awlaki’s circumstances, they do not exist.

You may prefer that people in positions of power may give “legal” justifications for their behaviour without challenge by a countervailing body (say, a court of law.)

But that’s not how the system works.

Really.

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Andrew 03.12.11 at 5:32 pm

Rich: You begin with a “simple principle” of law that doesn’t exist. Of course the President actually can sometimes give orders to kill. The law differentiates between circumstances where such orders are lawful, and where such orders are unlawful.

And so your argument – which rests upon the idea that there is a simple principle of law which the President is violating and which I am excusing – doesn’t quite work.

Scent: Well, okay, that’s a reasonable position. I don’t see it in this set of circumstances, and neither did the federal court which dismissed the attempt.

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ScentOfViolets 03.12.11 at 6:10 pm

Saying “You don’t see it” in no way switches the burden of proof around (I do like the evidentiary requirements imposed by the scientific method.)

You want to claim that Michael Moore is conspiring with the Enemy or that Manning really is suicidal?

Fine.

But the burden of proof is on you and those who want to claim this. Not on anyone else to show that this isn’t the case. That’s just how the burden of proof works.

So let’s see what you got. If all you’ve got is bupkas, then really, I could care less whether or not you’re “convinced”, and your opinion is worth very little. Such are the dictates of employing the method scientific.

And this I find to be extremely troubling:

I don’t see it in this set of circumstances, and neither did the federal court which dismissed the attempt.

This is a decidedly, shall we say, “operational” view of the law. It’s as if you’re insisting that’s it’s a half hour past midnight because that’s what your clock says, despite the fact the sun is directly overhead.

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Andrew 03.12.11 at 7:06 pm

Scent: What I’ve said repeatedly about Manning is that I find it plausible that the nudity was undertaken out of concern for his safety, and that we do not have sufficient evidence to be persuaded that he is being treated vindictively. He may be in fact be being treated vindictively.

I don’t think Moore is working for any enemy.

As to the targeting of Awlaki, I said that I agree that your position is reasonable, but that a federal court which actually decided on the issue disagreed. I don’t see any law that would require Obama obtain some type of judicial permission here. The targeting of combatants is a normal part of a military action against an organization, and I think such action has been authorized by the AUMF. That’s the legal justification for the action. What is the legal justification for requiring judicial permission?

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ScentOfViolets 03.12.11 at 7:31 pm

But you keep on dismissing burden of proof standards. When people say that there has to be rule of law instead of a rule of men, saying that the law requires these men to give a reason for their actions, but the reasons don’t have to be verified beyond their say-so is not what is generally meant by “rule of law”. For that matter, why not just cut to the chase and say that if the law said a sitting president could target any citizen for assassination with impunity, well, that’s still “the rule of law”. This next bit confuses “necessary” with “sufficient”:

As to the targeting of Awlaki, I said that I agree that your position is reasonable, but that a federal court which actually decided on the issue disagreed. I don’t see any law that would require Obama obtain some type of judicial permission here.

And IIRC, this and similar rulings were based upon the withholding of evidence because to do otherwise would be to reveal “state secrets”. So no, these rulings weren’t based on any sort of evidence, just the governments say-so. And no, a court rubber-stamping government actions is not what is meant by “rule of law” either.

Notice that in my above post, I used the word “countervailing”. It’s there for a reason. This could have been an interesting discursion, btw, but you’ve lessened the tone of the conversation by being what I would call definitionally-impaired. Once again, a clock is an indicator of the time; it is not – in and of itself – an arbiter of time. Saying that a court ruled thus-and-so, therefore X must be legal falls into this category of fallacy (else we would never worry about “show trials”, indeed, wouldn’t even be able to formulate the concept.)

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Rich Puchalsky 03.12.11 at 7:39 pm

“You begin with a “simple principle” of law that doesn’t exist. Of course the President actually can sometimes give orders to kill. The law differentiates between circumstances where such orders are lawful, and where such orders are unlawful.”

Oh really? Why don’t you tell me what those lawful legal circumstances are, then. Note that the President can not declare war, and does not normally tell the military to kill people (as opposed to telling them to carry out military operations which will of course result in killing people).

“The targeting of combatants is a normal part of a military action against an organization [...]“

Also note that until just a few years ago, when the executive decided that we needed a new legal reason to kill people, the whole idea of “military action against an organization” (that was not a nation state) was pretty much unheard of, even silly. Wars were between states, except rhetorically, and criminal organizations that were not states were dealt with by police. You can’t refer to this as a normal part of military action without doing exactly what I’ve been saying you’re doing: redefining words in order to excuse whatever the executive might do whether it was formerly considered to be legal or not.

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ScentOfViolets 03.12.11 at 7:57 pm

Testing.

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Andrew 03.12.11 at 8:50 pm

Rich, such as in the course of an authorized military action, within the confines of laws regulating the conduct of such action. Your distinction between ordering military operations and ordering people killed is a stretch since the purpose of many military operations is to kill. Death frequently is not an unintentional side-effect. If your distinction is between the ordering of military operations and the naming of specific targets of those operations, then I’d simply note that you’re incorrect; targeting key combatants is a normal part of military campaigns.

Military actions against non-state actors are nothing new. They have included, historically, military actions against pirates, rebels, and assorted terrorist organizations.

The authorization for the President to use military force explicitly includes “nations, organizations, and persons.” In other words, the law quite clearly refuses to the draw the limitation that you do. Nor, obviously, was the notion of using military force against non-state actors a new invention of the executive.

So I think we end up in the same place: with a result that you, understandably, don’t like, but which is consistent with the law.

Is it really so surprising that the laws authorizing and regulating military action include acts that you think should be forbidden or more tightly controlled?

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Bruce Baugh 03.12.11 at 9:06 pm

Andrew, it would perhaps be useful to explain why you find rhetoric about Manning’s safety plausible when no psychiatric or medical appraisal has offered any support for such concerns, and why psychiatric appraisers have been locked out of recent decision-making. I mean, it’s understandable if you (say) share Scientology’s or Szasz’s skepticism about the field, but if in general you think that professional examination is a good basis for decision-making about such things, then why would you make an exception in this case? Does the refusal to heed specialized counsel generally reassure you, like the conservative thing for elevating gut impulse over knowledge? And if not, again, why endorse here as anything but evidence of bad decision-making?

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Straightwood 03.12.11 at 9:13 pm

Andrew clearly enjoys stretching the rubber band of “the law” to cover any position that flies in the face of common sense, because this is what he does for a living, making plausible arguments that raise reasonable doubts. His commitment is to winning, not to the truth. He delights in winning points here through sophistry and fuzzy logic. Thus, anybody could be a “combatant” according to Andrew, because the law gives our President broad discretion. In his view, all the President needs to execute someone like Andrew summarily is a rickety chain of association linking him to a terrorist threat – especially if a judge approves.

The legalistic argumentation employed by Andrew and his colleagues is not grounded in logic and a quest for truth; it is based on rhetorical tricks and manipulation of juries and judges. It is the same kind of elevated nonsense used by Yoo and Bybee to “legalize” torture at Guantanamo. Andrew would have fit right in with the Bush administration, serving up clever “legalizations” of whatever the torturers called for.

The most annoying thing about Andrew is not that he is a sophist; it’s that he enjoys sophistry.

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ScentOfViolets 03.12.11 at 9:15 pm

Andrew, it would perhaps be useful to explain why you find rhetoric about Manning’s safety plausible when no psychiatric or medical appraisal has offered any support for such concerns, and why psychiatric appraisers have been locked out of recent decision-making.

I think it would be more instructive to ask Andrew why he’s got the burden of proof standards arsey-versey. I don’t have to prove that Manning isn’t a danger to himself.

The people making that claim most definitely do.

That’s why I can’t take any of Andrew’s little verbal sallies seriously – and won’t until he actually provides a concrete and plausible explanation. Something he’s been ducking for at least three posts now, and which indicates he’s aware of the weakness of his position.

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ScentOfViolets 03.12.11 at 9:20 pm

Andrew clearly enjoys stretching the rubber band of “the law” to cover any position that flies in the face of common sense, because this is what he does for a living, making plausible arguments that raise reasonable doubts. His commitment is to winning, not to the truth.

Well, I’d say he’s losing – and losing rather badly – if that’s the case. If you look at what he’s doing throughout these posts, he’s been working very hard to get other people to accept the notion that the burden of proof is on them to prove he (or by extension, the Administration) is wrong.

Uh, no, he – and the administration – have to prove that they’re right; otherwise this all devolves into yet another wearisome game of “If you can’t make me say I’m wrong I win”.

Uh, no thanks. Despite the lovely invitation, I’ll stick with the usual game. The one in which Andrew happens to be (coincidentally, I’m sure) losing. And losing very badly.

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Straightwood 03.12.11 at 9:39 pm

What Andrew’s endless sophistry conceals is the age-old process of abuse of discretion. An arresting officer can tighten handcuffs to the point that they cause bleeding and numbness. Yet it is perfectly plausible and legal for the officer to handcuff the prisoner. Similarly, the brig commander is abusing discretion in using every opportunity to harm Manning psychologically, while staying withing the letter of the law. Andrew knows perfectly well how this is done, but there is never a mention of it in his scrupulous defense of what is “legal.”

In Manning’s case, the abuse of discretion has become so obvious and egregious that a senior State Department official denounced it yesterday at a conference. Evidently not everyone finds the correctness of Manning’s treatment “plausible.”

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Consumatopia 03.12.11 at 9:46 pm

Under some circumstances, forced medication of prisoners is not forbidden. If a prisoner poses some danger of hurting himself, nudity at night may be indicated.

Exactly. It’s okay for us to abuse Manning because we abuse lots and lots of people.

Safety is no excuse here–if you think some prisoners are going to hurt themselves, put them on camera and monitor them through the night.

It can’t be suspended whenever powerful people want it to be. Powerful people can break the law, of course, by abusing their power; but the system does a decent, albeit imperfect, job of holding them accountable.

Even assuming that “law” means “what a judge says”, this is clearly false. We’ve done an absolutely terrible job holding anyone accountable. The extent of remaining controversy on this point is between whether we’ll let everyone off the hook for Bush administration abuses or everyone except those who’s crimes went even beyond Bush’s orders. So, at present, a system in which only the president had the de facto power to ignore laws, rather than any member of the executive branch, would be an improvement.

Re: targeted killings, note that the extension of AUMF beyond entities involved with 9/11 should be illegal (note the rest of the sentence you took “nations, organization, and persons” from), as is the legality of assassination by drone strike in the laws of war. Even assuming both of those issues away, the AUMF doesn’t overrule the constitution will requires due process before taking a citizen’s life.

Note that the recent ruling on Awlaki didn’t consider any of this–it just ruled Awlaki’s father didn’t have standing to sue. Apparently Awlaki himself was supposed to show up in court to contest the government’s secret decision to assassinate him.

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Consumatopia 03.12.11 at 9:47 pm

the extension of AUMF beyond entities involved with 9/11 should be illegal (note the rest of the sentence you took “nations, organization, and persons” from), as is the legality of assassination by drone strike in the laws of war

I didn’t phrase this right–I meant that targeted killing by drone was only of dubious legality.

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Andrew 03.12.11 at 10:16 pm

Bruce: I find it plausible because Manning is in a situation of extraordinary stress, and has been on suicide watch previously. Manning’s lawyer is in the odd position of claiming both that Manning is in excellent health and perfectly stable, and also that his conditions are inhumane and akin to psychological torture. Now, I think psychiatric examinations are very useful. But they’re one piece of evidence which would have to be weighed along with everything else, including the commander’s own familiarity with and observations of Manning, and the observations and opinions of others – and we have no idea what those are. Could there be bad decision-making here? Sure. Am I personally persuaded one way or the other? No. Your opinion may vary.

Scent: Let me be clear: I don’t think there is sufficient evidence for us to form any conclusion as to whether Manning is in fact being treated vindictively. My point – which I’ll state for the last time – is precisely that neither side has given persuasive evidence. It is NOT that we know Manning is not being treated vindictively, or that Manning’s should not be able to pursue complaints to that effect. Both sides have a burden of a proof.

Scent @185: If I’m reading you correctly, your view is that for rule of law to obtain, the judiciary must be able to examine the President’s evidence and reasoning for supposing that al-Awlaki is an enemy combatant in a foreign theater who cannot be apprehended and whose targeting is a necessary part of the military campaign against AQAP – and then that the judiciary must be able to approve or disapprove of this evidence and reasoning. Imho, every relevant system of law grants the executive a certain sphere of discretion; so long as the President’s actions appear to fall within that sphere, the judiciary will not intervene. I don’t think anyone is arguing that the President can assassinate whomever he pleases, and I don’t think such a conclusion is implied by anything I said.

As to the courts, I said that the federal court which heard the case disagreed with your position. The technical holding of the case is, I believe, simply that Awlaki’s father lacked standing to bring the suit, but the court went on to discuss alternative grounds, including whether the courts should intervene here at all, or whether this is the kind of question best left to Congress and the President. The court settled on the latter. This may not be the holding, but it certainly indicates exactly what I said: that the court disagreed with your position.

I am not saying that because the court disagreed, you are wrong.

Straightwood: Yes, abuses do occur. But I don’t claim to know whether they have or haven’t before seeing enough evidence.

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Henri Vieuxtemps 03.12.11 at 10:17 pm

But the burden of proof is on you and those who want to claim this. Not on anyone else to show that this isn’t the case. That’s just how the burden of proof works.

I don’t think “the burden of proof” is to be interpreted as “the burden of proof is never on the commenter ScentOfViolets”.

Regardless of the merits of this particular case, in general, if a jailer claims that, in his judgment, one of his prisoners is suicidal, and ScentOfViolets believes that the prisoner in question is not suicidal, then the burden of proof is on ScentOfViolets.

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ScentOfViolets 03.12.11 at 10:31 pm

Scent: Let me be clear: I don’t think there is sufficient evidence for us to form any conclusion as to whether Manning is in fact being treated vindictively. My point – which I’ll state for the last time – is precisely that neither side has given persuasive evidence. It is NOT that we know Manning is not being treated vindictively, or that Manning’s should not be able to pursue complaints to that effect. Both sides have a burden of a proof.

Andrew, let me be clear: Both sides do not have an equal burden of proof. In fact, the burden in the case of Manning lies with the Administration. So whether you find their reasoning “plausible” or not is completely beside the point.

And in fact, I don’t have any burden of proof at all, since in fact I’m not taking a position as to whether or not Manning is suicidal. This is yet another attempt of yours to try to claim otherwise.

No. And I will keep this front and center.

The fact that you keep evading and squirming and refusing to explain point blank why it would be otherwise – and that you’ve been doing this for many postings now – is proof enough for me that you know very well your argument falls flat right at this exact point.

So, unless you can come up with a convincing reason as to why the burden of proof gets arranged in this very strange fashion, I’ll take it that you’ve conceded the argument and that you know you are in fact in the wrong here.

Since this is your last chance – no more stalling – I’d get busy if I were you ;-)

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ScentOfViolets 03.12.11 at 10:33 pm

Regardless of the merits of this particular case, in general, if a jailer claims that, in his judgment, one of his prisoners is suicidal, and ScentOfViolets believes that the prisoner in question is not suicidal, then the burden of proof is on ScentOfViolets.

Sigh. I claimed that Manning was not suicidal? Where did I do that? Either quote precisely where I did so, or admit that I have exactly zero obligation in this regard.

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Henri Vieuxtemps 03.12.11 at 11:06 pm

I guess I am confused about this whole scientific burden of proof thing.

The jailer says that his treatment of Manning is justified because Manning is suicidal. We strongly suspect that the jailer is lying. Andrew thinks that he may not be lying. This far I understand. But how is this all linked to science?

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Consumatopia 03.12.11 at 11:07 pm

As to the courts, I said that the federal court which heard the case disagreed with your position. The technical holding of the case is, I believe, simply that Awlaki’s father lacked standing to bring the suit, but the court went on to discuss alternative grounds, including whether the courts should intervene here at all, or whether this is the kind of question best left to Congress and the President. The court settled on the latter. This may not be the holding, but it certainly indicates exactly what I said: that the court disagreed with your position.

That particular judge’s “discussion” doesn’t count for much–the court didn’t rule on that, so it couldn’t be appealed and ruled upon by higher judges.

I discourage other posters from continuing a discussion of this particular case with you–you don’t seem particularly well-informed on the matter, and interested readers can find lots of discussion on the matter elsewhere. We’ll just have to agree to disagree whether a president’s secret call for a targeted killing, presumably by remote drone, of an American unconnected to 9/11 in the absence of an imminent threat or plot without needing judicial permission can be reconciled with any reasonable notion of “rule of law”.

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Andrew 03.12.11 at 11:46 pm

Scent: Can you explain why you think the default position is that Manning is being treated vindictively? My approach has been that the proposition that Manning is being treated vindictively is (1) true or (2) false, but that the state of our knowledge concerning the truth or falsity of the proposition is insufficient to allow for a conclusion.

Consum: Actually the alternative grounds can be used by an appellate court to affirm the ruling, and an extensive discussion like that can have persuasive impact. I’ve said all along that the court in that case disagreed with Scent’s position – not that their disagreement constitutes the holding of the case.

And we can agree to disagree on whether military action against AQAP is legal.

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ScentOfViolets 03.13.11 at 12:21 am

Scent: Can you explain why you think the default position is that Manning is being treated vindictively? My approach has been that the proposition that Manning is being treated vindictively is (1) true or (2) false, but that the state of our knowledge concerning the truth or falsity of the proposition is insufficient to allow for a conclusion.

What?!?!?! I where did I say that this was the default position?

In any event, since you refuse to explain your odd notions of the burden of proof, I’ll take it that you concede that you got nothin’.

That is, in your parlance, I win ;-) Sorry, but the choice was yours. You have no one to blame but yourself.

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Consumatopia 03.13.11 at 12:21 am

If you knew that the court didn’t rule against Scent’s position, then it was misleading to say “the court disagreed” rather than “a judge disagreed”, which itself would only be a half-truth.

And that is not at all what we’re disagreeing on. Assuming that you aren’t a complete monster, you would presumably rule out some kinds of military action against AQAP. You would not accept nuclear or biological attacks against them. You would accept some military actions while finding other unacceptable.

The disagreement hinges on whether a military action which has ALL of the red flags I mentioned is still acceptable.

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ScentOfViolets 03.13.11 at 12:31 am

I guess I am confused about this whole scientific burden of proof thing.

The jailer says that his treatment of Manning is justified because Manning is suicidal. We strongly suspect that the jailer is lying. Andrew thinks that he may not be lying. This far I understand. But how is this all linked to science?

Let me clear this up; briefly, it is an error to take skepticism of a claim with holding to that claim’s inverse. It’s just skepticism, and accordingly, no burden of proof is associated with it.

An easy example would be a devout Theist who claims in no uncertain terms that their version of God exists. To which I would reply, “Oh yeah? Prove it.” That certainly does not imply that I don’t believe their assertions: If an equally fervent atheist then informs me that no God or Gods exist, my response is the same. “Oh, yeah? Prove it.”

Did I go from being a hard-core atheist to being an equally hard-core theist? Of course not. I’m merely registering skepticism that either claim is backed by any evidence. Not that the level of skepticism necessarily has to be the same in both directions, of course, or that because I question the claim that I necessarily disbelieve it. To name one famous example relevant to an earlier thread, no one knows if P equals NP or not. The smart money says that in all likelihood, P!=NP; nevertheless this has not been proven, and anybody who asserts the truth of that statement will be met with the skeptical “Oh yeah? Prove it.”

I hope that clears things up.

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Henri Vieuxtemps 03.13.11 at 8:15 am

An easy example would be a devout Theist who claims in no uncertain terms that their version of God exists. To which I would reply, “Oh yeah? Prove it.”

But this seems to be, more or less, Andrew’s shtick in this thread, vis-a-vis Manning’s treatment. For which he is accused (reasonably, IMO) of defying common sense.

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Henri Vieuxtemps 03.13.11 at 9:22 am

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Bruce Baugh 03.13.11 at 10:35 am

Andrew: It’s true, the commander says that about Manning. 16 psychologists, if I’ve got the tally right, say not, and now neither they nor Red Cross is being allowed to get fresh data. The oficial story keeps changing in various ways, and does not consistently match prescribed procedure, to put it mildly. So why grant it any sort of credence until we see officials making some minimal effort to comply with a standard larger than “we want it”?

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Andrew 03.13.11 at 12:26 pm

Scent: I’m not sure how much clearer I can make my position. I have never assigned either side a greater burden of proof. Each side has a burden of proof; neither, to my mind, has persuasively presented a case. When I say that I find the explanation plausible that Manning was forced to sleep naked out of concern for his safety, I mean that it is consistent and reasonable given the relevant facets of the circumstances which I described above. Is it conclusively established? No. Does Manning have a plausible case that he was treated vindictively? Yes. Is it conclusively established? No.

My confusion, and Henri’s, as to your position was likely inspired by comments like this: Andrew, let me be clear: Both sides do not have an equal burden of proof. In fact, the burden in the case of Manning lies with the Administration. So whether you find their reasoning “plausible” or not is completely beside the point.

But if I understand your last comment, then we both agree.

Consum: Either formulation is correct, and certainly not a half-truth.

You use the word “acceptable” again, when that is not really the benchmark here. A nuclear attack against AQAP, assuming no acts by them additional to what has occurred thus far, would violate the principle of proportionality. And even then I do not think a court may step in BEFORE the attack to determine whether it is justified.

And the case is even less difficult wrt the targeted killing of a combatant in a foreign theater. There is nothing remarkable about the means selected, or the end sought. The target is not alleged to be some political opponent of Obama, or even someone not serving a terrorist organization, associated with al Qaeda, in armed conflict against the US. The only remarkable feature is the citizenship of the target. And citizenship does not change the analysis that this is an ordinary part of warfare.

Bruce: My understanding, if I’ve read Manning’s attorney’s blog correctly, is that one psychiatrist has examined Manning. Manning’s attorney is trying to get 16 psychologists access to examine Manning? As to the official story, I think – and I could be wrong – that it’s been consistent and very skimpy on details, with the justification being that they cannot simply release the details of their thoughts on the prisoner’s psychological state to the public, as this would violate the prisoner’s privacy.

That’s largely correct. They will have to justify their treatment internally, as part of whatever administrative process the military has, and then – if Manning’s attorney wishes to push this, and he well might – to a court.

Look, I think the persons that ARE persuaded one way or the other have one of two narratives in mind. Those who think Manning is being abused think that the commander of the brig hates him, that his guards hate him, and that they will use any small excuse to inflict harm upon Manning in the service of that hatred. Those who think otherwise think that the military knows Manning is a very high-profile prisoner, that the commander knows the treatment of Manning will invite scrutiny, and that therefore the commander will act professionally and with an abundance of caution at every step wrt to Manning’s safety. (I leave aside those who simply say “Manning deserves it” as surely we all agree that such an argument isn’t worth attention.)

I have no idea which one is actually the case. Many of the details we have come from Manning’s lawyer, who has a strategic incentive to make the government as uncomfortable as possible in its continuing prosecution of Manning. We do not know everything that the psychiatrist said to the commander, nor much else concerning Manning’s behavior or disposition.

So, personally, I remain unconvinced. I think those inclined to give more weight, out of a poor general opinion of how the military treats prisoners, or a poor opinion of prison guards generally, to the narrative of abuse will find the “low suicide risk” finding of the psychiatrist (per Manning’s lawyer) sufficient confirmation.

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Consumatopia 03.13.11 at 3:25 pm

Either formulation is correct, and certainly not a half-truth.

Both formulations are half-truth at best, intentional deception at worst.

And even then I do not think a court may step in BEFORE the attack to determine whether it is justified.

If the NY Times publishes that the president has given a secret order that a terrorist may be attacked by nuclear weapons in my town, I would hope that people in my town would be able to petition a court to halt that order. But if you really are under the impression that court has no power to stop any military actions, that is yet another admission that we are correct.

To repeat myself, which is necessary given your repeated dishonest mischaracterizations of the situation, we’re taking about whether a president’s secret call for a targeted killing, by remote drone, of an American, unconnected to 9/11, in the absence of an imminent threat, without needing judicial permission or even, apparently, being subject to judicial review, can be reconciled with any reasonable notion of “rule of law”.

You have not refuted a single point I have made. Every thing I said about the lawless system you take pride in is true. And by your behavior here, you are exactly the kind of person I would expect to take pride in such a system.

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Tim Wilkinson 03.13.11 at 3:48 pm

Those who think Manning is being abused think that the commander of the brig hates him, that his guards hate him, and that they will use any small excuse to inflict harm upon Manning in the service of that hatred.

I don’t think they do think that. They almost certainly don’t think it is an adequate explanation of his treatment. Do you perhaps think that the scurrilous allegations about untoward goings-on at Abu Ghraib business rest on the assertion that Lindy Whassname et al were a bunch of perverts, too?

Also, re: rule of law. Consumatopia is right to imply that there is a substantive element to the concept of the rule of law. Very roughly, I’d suggest that the rule of law is weakened as executive discretion increases, even if that discretion is conferred by a formally valid law.

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Andrew 03.13.11 at 3:57 pm

Consum: It might be helpful if you could make your points without personal insults.

The court’s opinion disagrees with the position that the judiciary should review the executive’s reasoning in this case. No one claimed that this portion of the court’s opinion is the holding. If you felt the original formulation was misleading, my subsequent comments spelled this out explicitly.

I thought we had agreed to disagree on the legality of attacking AQAP. If not, then my reply is that AQAP is a terrorist organization associated and affiliated with AQ, in both purpose and means, both directly and indirectly, which perpetrated the 9/11 attacks. As such all necessary force against AQAP is authorized, including attacks on persons in operational roles within AQAP. This interpretation accords with the obvious policy purpose of the AUMF and with the broad wording used by the AUMF in its authorization.

I’m not sure why you’re highlighting “remote drones” or “targeted killing” as though these are red flags of questionable action. They’re not.

The judiciary generally doesn’t get to weigh in on whether military action in foreign theaters is legally authorized. Such questions are for the most part to be answered by President and Congress. That’s why suits challenging everything from the legality of US military action in Iraq in 1991 to US military action in Iraq in 2003 are dismissed. Now, if the President were authorizing military action within the United States, that would be very different. But that’s not the case here.

If you think this means we lack rule of law, then we can agree to disagree. But NO relevant system of law, as far as I know, grants the judiciary the authority to review an executive’s decision to engage in military action in a foreign theater, and decide on whether that action can go forward – for some pretty obvious reasons.

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Bruce Baugh 03.13.11 at 4:29 pm

No, let’s not just agree to disagree. Some of us think that you, Andrew, like the government, is championing a monstrous evil. Whether you do so politely or rudely is of much less relevance than the fact that you’re doing exactly what Rich, Tim, Consumatopia, and others are pointing at: the right of the president to have is way, including taking the lives of others of his own nation and the rest of the world, on his say-so, not just without external review but increasingly without anyone ever even being able to know it, and the right of the government generally to do whatever it wishes to whoever it can catch, on any excuse or none. Our being nice about your rhetoric doesn’t really bear on the matter.

You do not get bonus points for defending evil in a very nice sort of way.

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Bruce Wilder 03.13.11 at 4:41 pm

“the rule of law is weakened as executive discretion increases”

Very roughly, indeed.

Discretion is not the enemy; arbitariness and naked self-interest is.

The objective is that the power of the state be guided by rational deliberation upon a shared, public interest.

It is not mere accidental correlation that puts arbitrary government in service of stupid.

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Bruce Baugh 03.13.11 at 5:20 pm

Bruce Wilder: That’s a good distinction.

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Consumatopia 03.13.11 at 5:25 pm

It doesn’t make you less misleading if you spell something out only after it’s pointed out to you.

I opposed one particular kind of attack on AQAP, not every kind. They’re a terrorist organization, America should try to stop them. But AUMF doesn’t apply to them. There are lots of terrorist organizations that AUMF does not apply to which America should still try to stop.

Evidence other than their name is required to prove that AQAP is “associated and affiliated with AQ, in both purpose and means, both directly and indirectly”. But even if true, it’s not enough. We do not have evidence that AQAP planned, authorized, committed, or aided the 9/11 attacks. Nor did we have evidence that they harbored those who did.

Remote drone killing orders are in a very gray area in international law.

Regarding the court’s supposed inability to review the scope of legal authorizations for military action, you should consider this.

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Bruce Baugh 03.13.11 at 5:40 pm

A big part of what offends me about this kind of crap is that I do take terrorism seriously. I had friends in school whose parents and family had been the victims of terrorist violence, and I always wanted that to never happen here. And a big part of weakening the spiritual ground for terrorism is both not being tyrannical and not looking tyrannical. In fact, governing in the spirit that Obama campaigned on up to his FISA flip-flop would be a very good start. What he’s doing now isn’t just immoral, and likely illegal and unconstitutional – it increases our vulnerability to terrorism by feeding the resentments that terror violence draws on and handing terrorists propaganda tools that are effective precisely because they’re true.

I always knew I was more serious about terrorism than Cheney and Bush. I am simultaneously sad and furious to learn that I’m a lot more serious about terrorism than Obama, too.

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Andrew 03.13.11 at 6:02 pm

Bruce Baugh: Ad hominem driven by a self-righteous moral indignation can be very satisfying, I’m sure. Rarely does it further what I at least view to be the goals of an authentic conversation: a sharing of perspectives, information, preferences and beliefs, and an arrival at a mutual understanding even if not an agreement.

No one has claimed that the President can do whatever he likes, without limit or restraint. The argument has been much narrower: whether the President can target an American citizen, in a foreign theater, that the President determines to be a combatant in the serve of an organization in armed conflict with the United States, without the concurring opinion of a court.

An answer of “yes” to that question does not imply the President can deploy the military anywhere and kill anyone, without limit and in complete secrecy. Such an implication, no doubt, would make all of this much easier, and certainly would allow the easy satisfaction of opposing a monstrous evil online and upbraiding those who defend it. That’s not the case here.

Consum: The evidence tying AQAP to al-Qaeda isn’t limited to their name. The fact of the affiliation is well-reported, includes AQAP’s own statements and statements from AQ, and all of this is easily susceptible to a google search.

But this is the type of judgment that is generally reserved to the President and Congress. That there is not judicial review of these judgments in circumstances like this does not mean that there are NO circumstances in which judicial review would apply, or that there are no limits to the President’s discretion.

The hard part of the argument here is that you need to show that the President’s discretion, in these circumstances, requires judicial review, else his discretion will be so untrammeled as to make false the notion that the US has rule of law. Imho, that’s a very difficult argument to make.

I’ve read Louis Fisher before, and I appreciate his viewpoint, as well as the link. I obviously disagree with much of it.

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Tim Wilkinson 03.13.11 at 6:03 pm

Yes, very roughly.

But: Discretion is not the enemy; is.
This seems to be suggesting ‘arbitariness and naked self-interest is the enemy, so discretion isn’t.’ Not only does that not follow, but I should have thought the opposite: ‘arbitariness and naked self-interest is the enemy, so discretion is too’ would do passably well as an informal way of explaining the importance of the rule of law.

Since a benevolent dictator may entirely avoid arbitariness and naked self-interest, I’m pretty sure that a criterion for the rule of law lies elsewhere – somewhere a bit more meta, like, very roughly, executive discretion, regarded as an enabler of corruption.

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Tim Wilkinson 03.13.11 at 6:03 pm

That quote should be Discretion is not the enemy; arbitariness and naked self-interest is.

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Tim Wilkinson 03.13.11 at 6:09 pm

-The- evidence tying AQAP to al-Qaeda isn’t -limited to- their name. The -fact of the- affiliation is -well- reported, includes -AQAP’s own- statements and statements -from AQ-, and all of this is easily susceptible to a google search.

fixed

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Consumatopia 03.13.11 at 6:29 pm

Given the number of your statements explainable only by either ignorance or intent to deceive, it’s rather rich seeing you call on anyone else to look to Google. If you’ve got evidence that AQAP planned, authorized, committed, or aided the 9/11 attacks, or harbored those who did, show me. Your personal credibility is near zero. Stop making assertions without external evidence–nothing you say is to be believed.

The meaning or applicability of laws is not generally reserved to the President or Congress. Such a situation is exactly what an absence of the rule of law means.

Note that when you say “No one has claimed that the President can do whatever he likes, without limit or restraint.”, that goes double for me. It’s just that constraint is entirely political at this point, not legal. It’s not that the law never applies, it’s that it only applies when the politics forces it to apply. It would apply to Michael Moore, it does not apply to all American citizens. We could argue that it’s a workable system, we can’t argue that it qualifies as the rule of law.

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Consumatopia 03.13.11 at 6:42 pm

The argument has been much narrower: whether the President can target an American citizen, in a foreign theater, that the President determines to be a combatant in the serve of an organization in armed conflict with the United States, without the concurring opinion of a court.

Note that what’s actually happening is worse in several respects. That the President can do this targetting in secret, and not only in the absence of concurring opinion but without the targeted being able to challenge this determination.

But even if the system were exactly as you described and nothing more, it would still be a shameful, dangerous evil. And regarding “upbraiding”, you yourself asked for that by claiming pride in the system. That’s taking pride in evil.

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ScentOfViolets 03.13.11 at 6:54 pm

An easy example would be a devout Theist who claims in no uncertain terms that their version of God exists. To which I would reply, “Oh yeah? Prove it.”

But this seems to be, more or less, Andrew’s shtick in this thread, vis-a-vis Manning’s treatment. For which he is accused (reasonably, IMO) of defying common sense.

Well, no, that’s my schtick. Andrew is only saying that it is and then from that jumping to some absurd burden-of-proof standard which is just the opposite of real life.

We observe that the military is mistreating Manning. The military claims that this is for Manning’s own good and that he is suicidal.

Prove it.

Since they won’t allow anyone in to independently confirm their assertion, their excuse is not proven, and we are left with the bare fact that they are deliberately maltreating Manning.

Case closed.

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Andrew 03.13.11 at 7:14 pm

Consum: No one said that the question of the applicability of laws is generally reserved to the President and Congress.

What I did say is that the type of judgment in this instance, i.e. whether AQAP is sufficiently affiliated with AQ to be considered part of authorized military action against AQ, is generally reserved to the President and Congress.

As to AQAP, I didn’t ask that you take my word for it. You’ll have to continue to suffer the fact that in comments on blogs, most people will make claims that do not have footnotes. I noted that the evidence which I mentioned is widely reported on and easily found via an internet search. You’re welcome to disbelieve me; this is not an question central to the issue of rule of law.

As to the idea that the restraints on the President are “entirely political,” you’ve merely re-asserted your view on the very issue we disagree upon. I think this view fails to recognize that the courts are an independent institution, which will respond and act as claims are brought before it. I think this view fails to recognize the extent to which the President’s actions are shaped and constrained by the mere expectation of what a court might do. In short I think this view is simply at odds with reality, and the struggle to fit Awlaki into an argument as evidence – the repeated leaps of logic from the question of judicial review in Awlaki’s case to a conclusion that we have no rule of law – to say nothing of the weakness of Manning’s treatment as evidence even as the matter is still being pursued by his attorney – are indicative of that.

Now we’ve both re-asserted our initial claims. The circle is complete.

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ScentOfViolets 03.13.11 at 7:17 pm

Scent: I’m not sure how much clearer I can make my position. I have never assigned either side a greater burden of proof. Each side has a burden of proof; neither, to my mind, has persuasively presented a case. When I say that I find the explanation plausible that Manning was forced to sleep naked out of concern for his safety, I mean that it is consistent and reasonable given the relevant facets of the circumstances which I described above. Is it conclusively established? No. Does Manning have a plausible case that he was treated vindictively? Yes. Is it conclusively established? No.

Chuckle. One side doesn’t have any burden of proof. We both know this. We also know that the side that does isn’t making any effort to prove their case, such as calling in independent experts.

It’s like someone being caught red-handed standing over a body with a smoking gun. The accused can claim all they like that there’s a good reason for that configuration, that it’s not what it looks like, they’re not murderers etc.

But they (and you) are claiming that this is a sufficient defense, and it’s up to the other side to prove that they’re lying. You’re also claiming that the scenario doesn’t lead to “reasonable doubt”. Well, maybe, if you’re the mother of the accused (good to know that you finally admit that the military haven’t proven their case.)[1]

All you’re doing at this point is saying that if we can’t make you say you’re wrong you win (which is one of the reasons we have burden of proof standards, to put an end to the shenanigans people like you engage in rather than admit they’re wrong.) Well, no, you’ve lost, and lost badly. In my class, you would have been assigned an “F” for such shoddy procedure.

And nobody cares whether you’re “convinced” or not, anymore than anyone cares that a global warming “skeptic” remains “unconvinced”.

[1]This is precisely the sort of stratagem the Right uses on any of a number of issues, such as health care reform. It’s an observed fact that costs in the U.S. are much higher than they are in other comparable countries. The “conservatives” respond by saying that’s because Americans have “the best” health care in the world. Point out that by any of a number of measures they don’t, and they brush this off by saying they are the result of lifestyle differences or differences of measurement, and in event it’s not been proved that health care in the U.S. is actually worse than elsewhere . . . and won’t be until this, that, and the other have been accounted for. Should that ever happen, they’ll come back with “But what about X, Y, and Z? Because if you didn’t, it’s still not been proven that health care is worse in the United States.”

See the switcheroo? We’ve gone from an observable fact to a situation where “conservatives” are laboring mightily to create the perception that the burden of proof is other than what it is – they want to claim that this observation about cost is because “America has the best health care in the world”? It’s up to them to prove it. It’s not their place to claim that they’re “not convinced” that Americans don’t enjoy the best health care in the world.

Iow, Andrew’s schtick is an old one. One that burden of proof protocols are designed to screen out. But he knows that ;-)

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Rich Puchalsky 03.13.11 at 7:19 pm

“Look, I think the persons that ARE persuaded one way or the other have one of two narratives in mind. Those who think Manning is being abused think that the commander of the brig hates him, that his guards hate him, and that they will use any small excuse to inflict harm upon Manning in the service of that hatred.”

I’ve taken Consumatopia’s advice and stopped arguing with Andrew on this thread, but had to highlight this. Quoted above is Andrew’s description of the two narratives in mind. It’s a sterling example of deception, because it doesn’t include the narrative that almost everyone has in mind.

If Manning is being abused, it isn’t because the commander of the brig hates him. That’s the “a few bad apples” excuse that Bush used to such good effect. If Manning is being abused, it’s because his captors want to break him and cause him to give false evidence against Assange so they can destroy Wikileaks. Producing false confessions is what torture is *for*.

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Andrew 03.13.11 at 7:22 pm

Scent: The agreed upon fact is that Manning was forced to be naked at night. I’m not sure why you assume at the outset that this is mistreatment. That’s the very question at issue.

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Andrew 03.13.11 at 7:29 pm

Rich: Good Lord. If I don’t mention another possibility in my comment, I’m being deceptive? Three narratives then. “Sterling example of deception”? Get real.

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Henri Vieuxtemps 03.13.11 at 7:33 pm

The military claims that this is for Manning’s own good and that he is suicidal.

Prove it.

It’s easy to prove that that’s what they claim. And it’s their judgment call, they are not required to prove anything at this point. Anyway:
http://www.nytimes.com/2011/03/06/world/06manning.html

David Coombs, the lawyer for the analyst, Pfc. Bradley E. Manning, said in a blog post that Private Manning’s clothing was taken away at night in his cell at the Marine brig in Quantico, Va., after he remarked that if he wanted to harm himself he could do so with ”the elastic waistband of his underwear or with his flip-flops.” Mr. Coombs called the treatment degrading. Marine Corps officials have cited privacy rules in not disclosing more about the order, which was issued on Wednesday.

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ScentOfViolets 03.13.11 at 7:36 pm

Scent: The agreed upon fact is that Manning was forced to be naked at night. I’m not sure why you assume at the outset that this is mistreatment. That’s the very question at issue.

Chuckle. The agreed-upon facts are a bit more than that – and if you don’t know this, you have no business being here. But in any event: No I am not assuming at the outset that this is mistreatment. I am pointing out that in the absence of any compelling reasons (backed up with evidence) to do otherwise that this is mistreatment.

Now, show me where the Military has given a compelling reason backed up with evidence to treat Manning in this way.

Can’t do it, can you ;-) All you can say is that “you’re not convinced”, which isn’t exactly evidence now, is it?

To sweeten the pot, if you can prove that Manning really is suicidal, or that credible evidence has been presented that he is (which is most definitely not the bare assertions of the military), I’ll cheerfully admit that you were right and I was wrong.

So . . . where’s this evidence?

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Consumatopia 03.13.11 at 7:40 pm

Determining who specific laws apply to and determining the applicability of laws is the same thing.

If you’re claiming that a Google search would reveal evidence that AQAP planned, authorized, committed, or aided the 9/11 attacks, or harbored those who did, then you’re lying. Which is not surprising given the number of misleading and/or ignorant statements you’ve made in this thread. The point is not that statements in blog comments should come with footnotes, but that your statements in particular are a source of misinformation.

. I think this view fails to recognize that the courts are an independent institution, which will respond and act as claims are brought before it. I think this view fails to recognize the extent to which the President’s actions are shaped and constrained by the mere expectation of what a court might do.

Neither of which contradict anything I said. Unless you claim that courts are independent of politics, which is clearly false. In any event, it’s not called the rule of courts, it’s called the rule of law. If the law is being ignored, then the rule of law has failed. Doubly so if I cannot even bring a challenge that it is being ignored,You have utterly failed to establish anything remotely approximating a case otherwise.

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ScentOfViolets 03.13.11 at 7:41 pm

And it’s their judgment call, they are not required to prove anything at this point. Anyway:

Er . . . isn’t that the whole point of this thread? And the quoted material doesn’t rise to the level of proof – that’s like saying someone standing in line at the airport waiting to be porno-scanned who remarks that if he wanted to take down a plane he’d hardly be stupid enough to have the means to do so on his immediate person has just presented sufficient evidence to be treated like a “terrorist”.

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Consumatopia 03.13.11 at 7:43 pm

@229, deceptive or not, you did claim that those possibilities were exhaustive.

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ScentOfViolets 03.13.11 at 7:46 pm

If you’re claiming that a Google search would reveal evidence that AQAP planned, authorized, committed, or aided the 9/11 attacks, or harbored those who did, then you’re lying.

It’s part and parcel with his modus operandi – now that he’s said it’s “out there on google”, you both have “an equal amount of the burden of proof”.

What, you were expecting that he was going to admit that the burden of proof was on him to actually go out and find this material and then link to it?

Andrew don’t (t)roll that way. But it’s getting easier to see that this shifting of the burden of proof is his entire schtick.

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ScentOfViolets 03.13.11 at 7:49 pm

If the law is being ignored, then the rule of law has failed. Doubly so if I cannot even bring a challenge that it is being ignored,You have utterly failed to establish anything remotely approximating a case otherwise.

Yeah, the other side of this schtick has been his constant insistence that he’s “not convinced”. He’s put just about zero effort into trying to convince other people.

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Henri Vieuxtemps 03.13.11 at 7:53 pm

As I understand it, the jailer doesn’t need to prove that a prisoner is suicidal, he only needs to be concerned that the prisoner may be suicidal. Similar with the airport security: if you start making jokes about bombs on planes, they will probably give you the whole treatment. They don’t need a proof, suspicion is enough.

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Consumatopia 03.13.11 at 7:53 pm

Yeah, I’m feeling pretty stupid for not taking my own advice on this.

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ScentOfViolets 03.13.11 at 8:01 pm

As I understand it, the jailer doesn’t need to prove that a prisoner is suicidal, he only needs to be concerned that the prisoner may be suicidal. Similar with the airport security: if you start making jokes about bombs on planes, they will probably give you the whole treatment. They don’t need a proof, suspicion is enough.

I’m coming at it pretty much the same way. And no, a passenger saying “This is !@?$?%! If I really were a terrorist this security theatre wouldn’t be the slightest impediment to my plans” is not “joking”. That’s someone being frustrated and telling the truth. Notice btw that if some customs official asked a returning citizen if he had anything to declare and it was some fourteen-year-old punk who said, “Yeah, two kilos of high-grade cocaine!” then I wouldn’t mind if the security apparatus cut him out of line and gave him a hard time for a few hours.

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Tim Wilkinson 03.13.11 at 8:07 pm

Andrew: presenting a false dichotomy, it’s called, as in ‘you’re either with us or with the terrorists’.

Henri – or you could actually read the blog post itself: A href=”http://www.armycourtmartialdefense.info/2011/03/truth-behind-quantico-brigs-decision-to.html”>http://www.armycourtmartialdefense.info/2011/03/truth-behind-quantico-brigs-decision-to.html

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Rich Puchalsky 03.13.11 at 8:15 pm

And this, because this is a low-level case in which the President can’t be assumed to be responsible at all.

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Andrew 03.13.11 at 8:49 pm

Scent: you don’t assume at the outset that Manning’s nudity means he was mistreated, but absent compelling evidence otherwise you conclude that it is? Oy. Your position is hopelessly confused, and you appear to be far from understanding mine.

I haven’t tried to persuade anyone that Manning was not mistreated b/c I do not know; that is my entire point. If you can’t carry a civil conversation, let’s each assign the other an F and move on.

Consum: This isn’t grade school. Please conclude that I’m lying about AQAP. At this point you’re making yourself appear ridiculous.

You’re not reading carefully. Some questions are reserved for the discretion of the executive, or the judgment of both political branches. Generally, this is not the case. In instances such as this, and a limited number of others, it is. The question is whether the allowed discretion, and the political question doctrine, mean that we lack rule of law. That’s the crux. As I’ve said, I know of no relevant system of law that does not grant some sphere of discretion, and if you want to claim that there is no rule of law anywhere – well, go for it, and we’ll agree to disagree.

You also claimed that the limitations on the President, generally, are “entirely political.” The courts do not need to be “entirely independent of politics” to make this claim false. They’re substantially independent of politics, and that’s enough to disprove the rather breathless “entirely political” limits claim. For the most part, the courts independently apply the law to whatever controversies or cases are before them. This does not mean abuses never occur, or that the courts are perfect in their application of law. It does mean that it’s good enough to qualify as rule of law.

I’ve been about as polite as possible with you – so now speaking bluntly, you can return the courtesy, or you can continue to compound bad arguments and careless misreadings with juvenile manners.

At this point in the conversation – leaving much of the tangential nonsense aside – we are simply trading impressions of law in America. Your disquiet with areas of discretion is not persuasive to me; and my counters that such discretion is limited, and compatible with rule of law, are not persuasive to you.

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Consumatopia 03.13.11 at 9:01 pm

Your lies don’t make me look ridiculous.

If the president decides when law applies, the rule of law is dead. If the courts are only “substantially” free of politics, i.e. except when politics demand that it not be free of politics, then it’s not free of politics.

I don’t care how polite you are. You repeatedly make misleading statements, either through deceit or ignorance, and you refuse to apologize for either. That is not to be treated with politeness.

No one should believe anything you say. And that applies especially to your summary of our points of disagreement. My previous posts all explain where you misstate those. By strange coincidence, both you and the system you give allegiance to are without remaining credibility.

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ScentOfViolets 03.13.11 at 9:03 pm

Scent: you don’t assume at the outset that Manning’s nudity means he was mistreated, but absent compelling evidence otherwise you conclude that it is? Oy. Your position is hopelessly confused, and you appear to be far from understanding mine.

Chuckle. You mean you’re not going to actually go back and quote where I say any such thing? And that you’re behaving exactly as I predicted you would?

Whadda surprise.

I find you extremely rude and uncivil, and I think you owe a number of people an apology for your bad behaviour here.

Andrew reminds me of that Calvin and Hobbes strip where they’re playing Cowboys and Indians; when Calvin shoots Hobbes at point-blank range less than a foot away, Hobbes blandly informs him that he’s a lousy shot.

Yeah, he’s a pretty uncivil and dishonest git. One who tries like crazy to make the wrong people have the burden of proof ;-)

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Straightwood 03.13.11 at 9:18 pm

Andrew either enjoys nonsensical argumentation or is the indefatigable persona of a military psyops practitioner targeting CT. He is prepared to explain any outrage of the Bush/Obama era as a reasonable and lawful action. He earns his living making plausible defenses for bad conduct.

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Consumatopia 03.13.11 at 9:26 pm

I don’t have a problem with the people who make plausible defenses for bad conduct–that’s absolutely vital to the rule of law we all want.

But, damn, nearly every post I’ve made since 194 has been in response to his misstating my position. At some point I just gotta admit that I got trolled. :(

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hartal 03.13.11 at 9:47 pm

Things going bad, feelings of insecurity intensified; traditional authority losing legitimacy. Lynch someone, a n… or a n….lover. Or a sympathizer of any untrustworthy colored person. This is how the world is reset in the American imagination. Being willing to cheer it on is how you prove you are American, whatever the status of your birth certificate.

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logern 03.14.11 at 1:58 am

@QuigginOverall, though, it’s hard to avoid a feeling of fatalism when we contrast the hopes aroused by Obama’s inauguration with the reality of his administration.

Oddly enough, it’s not really up to Obama to investigate himself, i.e, his actions.. Nor would it likely be an unbiased or satisfactory examination.

Umm, the failure, let’s point to it then. If Obama is in violation of the law, the real failure right now is Congress. They and the courts are suppose to check each other.

.

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Rich Puchalsky 03.14.11 at 2:11 am

“Oddly enough, it’s not really up to Obama to investigate himself, i.e, his actions.. Nor would it likely be an unbiased or satisfactory examination.”

It is up to Obama to investigate the war crimes of the previous administration, though. In fact, he’s required by treaty to do so. He’s stated that he’s not going to do so. In fact, people can openly admit to war crimes — as when Bush / Cheney state that they authorized waterboarding, i.e. torture — and Obama will not do anything. The failure is not “Congress”, because there is nothing to investigate, the facts are known. All that Congress can do is impeach. Impeachment is a purely partisan affair: a majority of GOPers would impeach Obama for being Kenyan, a majority of Democrats will not impeach Obama for anything, nor can they really be expected to pull that since in the current climate it’s a sucker move that would change nothing substantive, as the next President would continue all the same abuses.

Obama has been very lucky in his enemies. America hasn’t been very lucky at all. At this point, all that America can do is try to more or less gracefully get off the world stage.

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logern 03.14.11 at 3:27 am

You can’t hold someone’s feet to the fire, when no one will hold the feet.

[throws up hands]

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Andrew 03.14.11 at 12:54 pm

Scent: This is you at 226:

Chuckle. One side doesn’t have any burden of proof. We both know this. We also know that the side that does isn’t making any effort to prove their case, such as calling in independent experts.

Here you clearly state that one side does not have any burden of proof, and that one side (the government) does.

This is you at 224:

We observe that the military is mistreating Manning. The military claims that this is for Manning’s own good and that he is suicidal. Prove it. Since they won’t allow anyone in to independently confirm their assertion, their excuse is not proven, and we are left with the bare fact that they are deliberately maltreating Manning.

All of these statements, and another that I’ve quoted previously, imply that you believe we’ve somehow observed Manning being abused, and that the burden of proof is now on the government to explain why. If the government does not do so, then we can only conclude that Manning is being abused.

Let me be clear: knowing that Manning was forced to be naked isn’t the same as knowing that he was abused. Government says “justified!” Manning says “not justified!” Government says “we’re worried about your safety, but can’t discuss the details in public!” Manning says “well the psychiatrist said I’m a low suicide risk!”

And that’s it. To some people, Manning’s lawyer’s report that the psychiatrist deemed Manning a low-suicide risk is enough. I don’t. I’ve said above why I think the government’s account is plausible, but impossible to judge fully until we see more evidence.

Scent, I’ve politely ignored, until the last post, your many musings about my “schtick,” the grades you would assign me, etc. I’ve tried to stay away from making any personal remarks of that nature at all. So if you’re waiting for an apology from me, don’t hold your breath.

Consum: What makes you look foolish is that anyone with the barest familiarity with the history of AQAP will know how ridiculous your accusations of lies are.

If the president decides when law applies, the rule of law is dead.If the courts are only “substantially” free of politics, i.e. except when politics demand that it not be free of politics, then it’s not free of politics.

This once again misstates the facts (gosh Consum, this means you’re lying right? I should get upset here). In a limited set of instances and cases, the executive has discretion. Not ALL instances and cases. And in a limit set of instances and cases, the judiciary lets Congress and the President settle the issue themselves. Not ALL instances and cases. Shall I reflect some of your conduct here, and make a snarky comment about your ignorance of the legal system?

The very hard part of your argument, which you’ve yet to even approach, is that you must show that discretion where it exists, and the political question doctrine where it is applied, etc., render so much choice to the executive and Congress as to when a law applies that we cannot say the US has rule of law at all.

My experience and my knowledge of the rule of law in the US is that, for the most part, the courts act independently and apply the law, even in the face of political pressure to do otherwise. They consider cases when powerful politicians wish they didn’t; they make unpopular rulings and order them followed; they allow would-be Presidential assassins to be declared insane; they throw uncooperative journalists in jail in an effort to get to the truth of who leaked the name of a previously covert operative. It doesn’t always work this way, and it never will always work this way. Human beings are imperfect, their institutions will be imperfect, and we will have abuses of power, and negligence of power. Hell, we will have bad decisions on the law made in good faith. But it is enough to qualify us as having rule of law – even when sometimes it is hard to keep it.

And Consum, I assure you that if I decided to stamp my feet and call you a liar and deceitful, as you and others in this thread have done, whenever you made a statement that I found factually wrong, or incomplete, I would likely need a new pair of shoes at this point. And when we toss in statements by Rich that I’ve found false (e.g. his claim that military action against non-state actors is an invention of the last few years, or his claims as to what “simple principles” of law there are), and others, I’m not sure I’d have time to make much of an argument. I’d be spending too much time stamping my feet and getting angry about the lying. You know how that goes.

I think it would behoove some people to learn to engage with opposing points of view politely. And if you find that you cannot – that your indignation and certainty is such that you cannot engage with civility at all – then I urge you to spend an hour watching a political show on Fox News, so that you might see how such indignant certainty and refusal to engage authentically with opposing arguments actually looks to someone who does not share your indignant certainty.

And with that lecture on something that should incredibly obvious to anyone who wants to take part in an actual discussion, I’ll exit this thread.

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Straightwood 03.14.11 at 1:28 pm

And with that lecture on something that should incredibly obvious to anyone who wants to take part in an actual discussion, I’ll exit this thread.

What a pity. I was very much looking forward to Andrew’s actual discussion of the legal justification of Yoo and Bybee’s torture memos. Andrew’s ringing affirmation that America enjoys the rule of law – most of the time – does not seem to have persuaded anyone on this thread, but perhaps America’s state-sponsored torture needs better legal representation than Andrew can provide.

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Consumatopia 03.14.11 at 2:37 pm

Wow, Andrew is putting a whole lot of energy into this. Yet he can’t be bothered to find any evidence for his claims. What this proves, is that when Andrew claims something but refuses to provide evidence, it’s because he can’t. That is the core lesson to take home here.

If you’re claiming that AQAP planned, authorized, committed, or aided the 9/11 attacks, or harbored those who did, and that “all of this is easily susceptible to a google search”, well, do it. It’s certainly easier than just posting here over and over again! That is, unless you’re wrong, in which case it’s much easier to simply re-assert over and over again what you can’t prove.

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Consumatopia 03.14.11 at 9:49 pm

We observe that the military is mistreating Manning. The military claims that this is for Manning’s own good and that he is suicidal. Prove it. Since they won’t allow anyone in to independently confirm their assertion, their excuse is not proven, and we are left with the bare fact that they are deliberately maltreating Manning.

All of these statements, and another that I’ve quoted previously, imply that you believe we’ve somehow observed Manning being abused, and that the burden of proof is now on the government to explain why.

I haven’t been paying attention to this thread of the argument, but that isn’t correct. Scent does not seem to be claiming that we know Manning is being abused. I believe the claim is that the government’s refusal to allow anyone to independently verify their assertion suggests that their assertion is dubious, or at least should not be taken on faith.

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ScentOfViolets 03.15.11 at 1:20 am

Actually, C, I’m making a distinction between the action and those making it.

Now, the action itself is harmful, just surely as if the brig commander had ordered Manning zapped with 20,000 volts of electricity or cut with small sharp knives, or forced to endure some Nazi-engendered procedure where he’s shot up with chemical poisons and exposed to nasty radiation of all sorts.

But if the voltage is applied with a defibrillator to restart his heart, or he’s being cut open to remove a burst appendix, or radiation and chemotherapy is being used to treat a tumor, those actions are justified. Mind you, all of those things, the electricity, the knives, the poisons are still harmful. It’s just that the alternative is worse. A body abused by electricity, cuts and poisons is a hurt body, but at least it’s a living one. That beats dying any day.

Thus, the question is whether or not the military had good reason to engage in a harmful practice, and the burden of proof is on them to show they had good reason. If they can’t show they had good reason – or refuse to show that they had good reason – for abusing the prisoner in this way, then all we are left with is the fact that they are indeed abusing their prisoner for no good reason.

Pretty open and shut when you put it that way, eh?

In any event, I think it’s pretty clear to all of us that Andrew was trolling. I wouldn’t put it past the bounds of possibility that he was actually doing a job as opposed to just being mischievous in a weird and twisted way.

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Consumatopia 03.15.11 at 1:56 am

SoC, I think I get it. I misunderstood.

Troll or not, something has gone awry here. After all those posts of his, I have no idea whether he thinks Obama is much better than Bush, or Bush wasn’t so bad. That’s a sign that we (or perhaps I) drifted way too far from the OP a long time ago. And it’s something Andrew should think about given his professed interest in “actual discussion”.

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Straightwood 03.15.11 at 12:05 pm

The key question is “Are Bush and Obama fundamentally alike?” I have concluded that they are because they have both:

1. Acted to sustain a state of perpetual armed conflict

2. Steadily increased “defense” expenditures

3. Provided vast government subsidies to private financial institutions

4. Curtailed civil liberties in the name of fighting terrorism

5. Punished whistle-blowers who reveal government misdeeds

6. Refused to punish government officials involved in torture of captives

Many people cannot believe that the charming, intelligent, and good-natured current president is pursuing substantially the same policies as his clumsy, ignorant, and malevolent predecessor.

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ScentOfViolets 03.15.11 at 3:32 pm

Straightwood, it’s hard to argue over something so vague as to whether or not Bush and Obama are “fundamentally alike”. That leaves you open to all sorts of apologetics by the hair-splitters and concern trolls.

But on those six specific points you mentioned? 100% dead-on.

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Consumatopia 03.15.11 at 6:12 pm

I am curious. Is there anyone who finds it convincing when Andrew uses the term “discretion” to refer to illegal acts contrary to law? That seems to be his core point–that you can violate the law and still be consistent with rule of law.

All I can ask, where the hell are my turkish delights?

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yeliabmit 03.15.11 at 6:43 pm

@Consumatopia:

Is there anyone who finds it convincing when Andrew uses the term “discretion” to refer to illegal acts contrary to law? That seems to be his core point—that you can violate the law and still be consistent with rule of law.

Well, it’s quite possible to exercise discretion and still remain safely within the formal confines of the rule of law. Discretion is the concept within the rule of law that allows decision-makers just that power, and the higher the decision-maker, the more discretion they are usually afforded. Discretion is (in my experience as an administrative lawyer) the space where repressive or regressive power is often most freely expressed within politically-liberal governmental structures. And I believe this is intentional.

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bianca steele 03.15.11 at 7:12 pm

Did Andrew really say that? I don’t have time to scroll back up the comments.

There’s a tension within the idea of “discretion.” On the one hand, we give people who have expertise or responsibility “discretion” to make decisions without getting approval from others. So naturally when someone has discretion, others who would have chosen differently will disagree. Sometimes the choose will be wrong and the others will be right. But on the other hand, decision makers may feel they have discretion to weigh one goal against another, and for one of those goals they’re weighing to be the importance of following the law. I’ve only seen strong objections when laws are broken in the service of a goal, i.e., in the latter case, and I think it would be very unusual for an institution to have explicit rules that permitted them to break the law in the service of some goal. (I know Yoo said that’s normal but AFAIK there’s no reason to think he was correct.)

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ScentOfViolets 03.15.11 at 7:27 pm

This is why I find the sort of contortions people like Andrew go through to be so despicable: by that definition, probably most repressive dictatorships could be said to adhere to “the rule of law”, as in “The Constitution clearly gives those powers to our glorious President-for-Life Generalissimo X. How dare you say our that in our country the rule of law does not apply.”

What it comes down to is a third grade third rate taunt of “You’re not saying your words right.”

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bianca steele 03.15.11 at 7:29 pm

Specifically, the only time I saw anything close to someone getting chewed out for breaking the law (“close to getting chewed out” meaning that no secret was made of the fact that the person was wrong and the decision was reversed; I was told and I was a temp at the time) involved a violation of export law that put the person overseas in danger of prosecution from their home government.

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Straightwood 03.15.11 at 7:32 pm

The jailers of Manning are abusing their discretion so as to achieve the goals of (1) compelling him to implicate others (especially Wikileaks) in his alleged crimes; and (2) intimidating other would-be leakers in the government with the prospect of harsh captivity. This abuse of discretion is evident because the excuse provided, protecting the prisoner from harm, is obviously at variance with the psychological damage that is being inflicted.

Our Nobel Peace Prize winning President thinks Manning is being treated properly, just as Bush would. This illustrates the fundamental political equivalence between Obama and Bush. Both are oppressive authoritarian custodians of a national security state. Their respect for individual rights ends as soon as the power elite are challenged.

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Consumatopia 03.15.11 at 7:53 pm

Did Andrew really say that?

I’m honestly not sure. I noted the executive wasn’t following the law. He calls that “discretion”. And the argument isn’t over whether discretion is desirable, or even whether the rule of law is desirable, but some apparent confusion over the simple point that the rule of law requires you to obey the law.

The argument over discretion is, admittedly, a more interesting one, so I suppose we might as well carry on.

I think it would be very unusual for an institution to have explicit rules that permitted them to break the law in the service of some goal.

In films, the weird intersection between reliving your naval commanding officer from duty because he’s unfit and the court-martial process seems close to this. I have no idea what the actual law is or how it works in practice.

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Consumatopia 03.15.11 at 7:58 pm

between reliving your naval

should be relieving. sorry.

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chris 03.15.11 at 9:22 pm

1. Acted to sustain a state of perpetual armed conflict

First, this is an extremely misleading way to describe Bush’s *active initiation* of two shooting wars.

As for “acting to sustain”, anything other than immediate pullout could be described as “acting to sustain” a conflict, but unless you think the consequences of immediate pullout can *never* be worse than the consequences of not immediately pulling out, then you have to engage on the details of whether some winding-down period is reasonable under the circumstances. Clearly you presume that when Obama says he is winding down and intends to exit in the next few years, he is lying (otherwise the conflict he is “sustaining” can’t possibly be “perpetual”), and nobody can prove you wrong without time travel, but if he *does* exit one or both wars in the next few years, you’ll probably just move the goalposts and claim that he “sustained” the conflict for those few years (and sweep under the rug your imprudent use of the awkwardly specific term “perpetual”).

Even the most uncharitable possible interpretation of Obama on this issue still doesn’t come close to Bush’s actions, though. Now, if he invades Libya…

2. Steadily increased “defense” expenditures

IIRC, Obama (or his administration) has in fact proposed some defense cuts… but of course they haven’t gone into effect yet, so you’re free to assume that he’s only proposing them because he knows Boehner will reject them, or that if Congress did pass them he would veto them, or whatever you feel like assuming.

Speaking of Congress, attributing every budgetary action to the President is a common error, but it’s still an error. The President proposes, but Congress disposes, and the veto is very limited leverage, especially if you don’t have a lot of congressional support for your ideas, whatever they are.

Of course, if you measure in nominal dollars, everything looks like it’s increasing all the time. This is great for making the government look scary, regardless of the reality of what is going on.

3. Provided vast government subsidies to private financial institutions

Technically, a loan is not a subsidy. There is some validity to the underlying point, but using areas of bipartisan agreement as the basis of your claim of “fundamental similarity” seems to define similarity down to the point that you may end up not saying much more than “Obama and Bush are both U.S. politicians”. True, certainly, but there’s a lot of variation within that class. (If you were actually looking for differences before concluding “fundamental” similarity, you’d find them pretty fast.)

4. Curtailed civil liberties in the name of fighting terrorism

True, but since nearly all wartime nations do this, I’m not sure it reveals much about the head of government as an individual. At most, you could say that it shows Obama considers the War on Terror sufficiently similar to a regular war to take some wartime-like measures.

Like it or not (and I think we both don’t), the security theater state is pretty solidly entrenched in not only the political class, but public opinion as well.

5. Punished whistle-blowers who reveal government misdeeds

Manning revealed a lot more than misdeeds, which makes it very disputable whether the label “whistleblower” is accurate (i.e. not more misleading than informative) to apply to him. Whistleblowers are worthy of protection because some secrets ought to be revealed — but most would agree that some ought to be kept, too, so revealing everything without attempting to sort one from the other is not so great.

Bush also went out of his way to shelter a person who concealed government misdeeds (Scooter Libby) — is there any corresponding case for Obama?

6. Refused to punish government officials involved in torture of captives

As far as I know, true, and rather disturbing. But a similar analysis to Point 4 holds.

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logern 03.15.11 at 9:44 pm

Yes, specifics as well as specific comparisons are important. Perjury refers to what Bill Clinton did lying about an affair, and it also could refer to a mob boss lying about connections to organized crime. And if you ever argued with someone who wanted to tell you the horrible deed of Clinton, it would come out as something like PERJURY IS A VERY SERIOUS CRIME. Yes, it is thanks.

I suppose that is apologetics though aye, and splitting hairs? I am GUILTY.

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Consumatopia 03.15.11 at 10:01 pm

True, but since nearly all wartime nations do this, I’m not sure it reveals much about the head of government as an individual. At most, you could say that it shows Obama considers the War on Terror sufficiently similar to a regular war to take some wartime-like measures.

I accept this, but if this is how things are, if we’re going to abandon the rule of law for the duration of a probably endless “war” by popular demand, I do wish we would see a bit less sanctimony and self-righteousness from the defenders of the system. If the best defense is “everyone else is doing it too”, I guess that’s a reasonable defense, but it’s also an admission that you’re no better than anybody else.

Like it or not (and I think we both don’t), the security theater state is pretty solidly entrenched in not only the political class, but public opinion as well.

True. But I also believe that, in the future, security will require trans-national governance. “Trust us” will no longer be as palatable, because the same system will govern peoples of different nationalities that don’t necessarily have a lot of trust for each other. Not that we’ll ever give up security theater, but it will probably be more of the TSA kind than the CIA kind.

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Straightwood 03.15.11 at 10:54 pm

Chris throws up the usual deflecting arguments, but the Obama of the campaign is not the Obama in the White House. He has betrayed those who chose him as a peace candidate and a restorer of civil liberties. I challenge Chris to name a date when the United States will no longer be at “war.” I challenge Chris to tell us when torture of captives by the US government will no longer be tolerated. The notion that Obama is better than Bush because he makes better promises does not stand up to the unhappy facts of the Obama administration.

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