Sunday, December 14, 2014

Just a Little Bit of Torture?

Via Charles Pierce, I found Jonah Goldberg's unimpressive defense of the use of torture. Goldberg opens,
For a long time I resisted the word “torture” when discussing the “enhanced interrogation techniques” used against high-value captives in the War on Terror. I don’t think I can do that anymore.
Let's be blunt, here. There's only one reason somebody like Goldberg would shy away from the use of the word "torture" and it's because he's a coward. The facts were out there. The Senate report adds some shocking details, but if you weren't willing to call "torture" by its name until you learned that it may have involved hummus, you were either choosing not to look at the facts or you were scared of alienating your patrons and followers. In his new defense of torture, Goldberg makes clear that he believes the techniques we knew to be involved in "enhanced interrogation" were torture:
What some of these detainees went through pretty obviously amounted to torture. You can call it “psychological torture” or something to that effect, but such qualifiers don’t get you all that far.
So, then, he's a coward.

Goldberg immediately walks back from his concession of the obvious:
It’s true that torture is to some extent in the eye of the beholder. Everyone can agree that hot pokers, the rack, and the iron maiden qualify. But loud music, sleep deprivation, and even waterboarding? At first, maybe not. But over time, yes. Torture can be a lot like poison: The dosage matters.
To me, that paragraph seems internally inconsistent. The initial argument is that there can be sincere disagreement over whether certain practices constitute torture. But rather than advancing that argument, Goldberg switches to one of degree -- that certain techniques only become torture if they're applied in a repeated or prolonged manner. Goldberg's on the record here. If he has scruples, they're newly discovered:
Within this broad range, arguments over what is or is not torturous are to be had. The most debated technique is “waterboarding,” which terrifies its recipient into believing he is drowning. Apparently, Khalid Sheikh Mohammed was waterboarded until he gave us a bounty of information. Technically, the McCain amendment would ban such treatment.
Goldberg knew at that time that Mohammed was waterboarded repeatedly, yet he had no problem suggesting that waterboarding might not actually be torture and that it should not be prohibited. Goldberg also displayed an inability to comprehend the moral and legal issues behind torture:
But, as Charles Krauthammer notes in the current issue of The Weekly Standard, there’s reason to believe even McCain would endorse a “sliding scale” that would allow the Khalid Mohammeds to get roughed up under certain circumstances. In other words, McCain makes the sorts of distinctions mentioned above–he just doesn’t want them written into law. Indeed, under the “ticking time bomb” scenario, McCain believes the president should willfully break the law McCain has authored. That’s a pretty Kerryesque position: He’s for it, except when he’s against it. So much for absolutism.
Krauthammer proposed banning torture but with exceptions that would subsume the rule -- he would allow for torture in the "ticking time bomb" scenario, and for what he calls "slow fuse" suspects such as Mohammed. Even if you don't follow Krauthammer's definition of "ticking time bomb" so broadly as to include a situation where the enemy has captured a soldier, the difficulty of its implementation should be obvious: If you don't know what information a suspect has until after you torture him, you're going to end up torturing people who have no information, who may have been deliberately fed misinformation for you to elicit, and who you presuppose are going to lie to you. You, as a torturer, also don't know either if or when the lie becomes the truth.

You risk getting an avalanche of information that buries the truth. You risk getting several versions of the truth, with amendment or new "details" added at every turn simply to get the torture to stop. In a non-ticking time bomb scenario, such as a soldier's being held hostage, you may have the luxury of repeatedly returning to your suspects to torture them again and again, until they give you better information... assuming they have it. But in an actual ticking time bomb scenario, you won't know if you have the right person, you won't know if you're getting accurate information, and you may in fact end up chasing red herrings of your own creation rather than following valid leads.

It's not clear that Goldberg accepted, or even understood, Krauthammer's distinction between the "ticking time bomb" and the "slow fuse". Krauthammer endorsed torturing somebody like Mohammed on the assumption that he's going to have useful information that he won't otherwise provide to interrogators -- and because he doesn't believe that suspected terrorists are deserving of basic human rights or dignity. Krauthammer's exceptions are so broad that his proposed limited prohibition of torture would not prevent any torture. His conception of the "ticking time bomb" is so broad as to encompass pretty much any possible, future terrorist attack or the location of a captures soldier. It's difficult to believe that he would object to the use of torture to find arms stashes, or to find people higher on the food chain, all in the name of preventing imminent terrorist attacks -- because terrorists are always plotting the next attack. Any detainee is thus reasonably treated as a "ticking time bomb" -- and if, for some reason, you can't make that case, you can simply apply the subjective measure that you think the person is "high value" and can be tortured to obtain whatever information he holds.

Although it seems obvious, Goldberg was completely unable to grasp the distinction between the positions of people like McCain and Kerry, and the unprincipled arguments of somebody like Krauthammer. Kerry and McCain were prepared for the possibility that the mythic "ticking time bomb" might actually be found, with the President being called upon to authorize torture in violation of the law. A President who could not make the case would be subject to impeachment, and he and those following his orders could face criminal charges. Such an approach should all-but-eliminate the possibility of a Bush-Cheney torture regime, as their programs would be plainly unlawful. Krauthammer, on the other hand, would have been perfectly happy to give that regime the full blessings of the law.

Goldberg is upset with the idea that once something is identified as torture, it should be deemed off-limits:
One of the great problems with the word “torture” is that it tolerates no ambiguity. It is a taboo word, like racism or incest. Once you call something torture, the conversation is supposed to end. It’s a line no one may cross. As a result, if you think the enhanced interrogation techniques are necessary, or simply justified, you have to call them something else. Similarly, many sincere opponents of these techniques think that if they can simply call them “torture,” their work is done.
Pierce points out the stupidity of Goldberg's points of comparison:
This is a guy who has made a comfortable career out of the notion that liberal fascists use "racism" as a club to bludgeon conservatives into silence when those conservatives are only trying to have a discussion about values and the public schools. Is he implying here that people use the words "incest" and "torture" in the same way? Do liberals cry "incest" when conservatives are only trying to talk about the gene pool out of which have emerged their hot cousins?
But more than that, Goldberg again displays the same sort of cowardice that plagues not just his musings on torture, but most of his work. He just told us that he was tremulous of using the word "torture" to describe torture, yet he's now suggesting that all it takes to get us back to where we were a few years ago is a properly applied euphemism. There is no similarity between suggesting that torture should be illegal, and using a euphemism to describe acts you know to fall under the definition of torture in order to try to sidestep legal and moral issues. Beyond that, Goldberg knows that torture opponents are not simply articulating a definition and declaring their job to be done:
The problem is that the issue isn’t nearly so binary. Even John McCain — a vocal opponent of any kind of torture — has conceded that in some hypothetical nuclear ticking-time-bomb scenario, torture might be a necessary evil. His threshold might be very high, but the principle is there nonetheless.
As previously explained, McCain would have the torturer and those who authorized his acts face possible prosecution, defending his breach of a torture prohibition based upon a strong argument of necessity. McCain would have the torturer clearly demonstrate courage in his convictions, a concept that appears to be outside of Goldberg's comprehension.
And nearly everyone understands the point: When a greater evil is looming in the imminent future, the lesser evil becomes more tolerable. This is why opponents of the interrogation program are obsessed with claiming that it never worked, at all.
Here, again, Goldberg is unable to maintain internal consistency. He cannot simultaneously hold up John McCain as the iconic opponent of the torture program, while pretending that McCain is "obsessed with claiming that it never worked." While some do take the position that torture "never" works, most opponents of torture recognize that you may be able to gain useful information from torture -- but with much of that information subject to being elicited through rapport-based interrogation without the moral issues of torture, or the confounding problem of useful facts being buried in an avalanche of lies and misinformation pouring out of a suspect who will say anything to make the torture stop.

Goldberg also steps right past the obvious, that proponents of the torture program have a very long history of lying about the program and the intelligence they gathered. They lied about the scope of the program. They lied about its effectiveness. They lied about the utility of information they gathered. Knowing that their actions would shock the conscience of the nation, they systematically destroyed the evidence. You would not expect that level of deceit, exaggeration and cover-up from people who sincerely believed in their program.

Lt. Col. Douglas A. Pryer, U.S. Army, wrote an essay for Foreign Policy, entitled, I don’t believe a word of what torture advocates say—and neither should you.
Predictably, torture’s acolytes are already responding: The report was a Republican witch hunt led by Democratic Senator Dianne Feinstein. Facts were selectively culled by partisan staffers in order to paint the program in the worst possible light. Other staffers could’ve selected different facts and reached completely opposite conclusions. Sure, there were problems with the program, but these techniques really did “work.” They saved lives. Someday, the truth will be revealed, and the men and women who performed this “hard, dirty work” for good ends will be lauded as the true heroes they are. In the mean time, trust us regarding this program’s success. WE KNOW.

Hogwash. I’ve never believed a word of what torture’s advocates say, and neither should you.
The author, who managed interrogation operations for the 1st Armored Division (1AD) in Baghdad from Jul-Nov 2003, asked that several of his prisoners be "re-interrogated" at Abu Ghraib,
Now, this is important: not once during this period did my Division receive any useful intelligence from Abu Ghraib. We received a few reports that Abu Ghraib interrogators seemed to think contained useful intelligence, but they contained nothing of substance that wasn’t contained in earlier reports. It was a mystery to me then why our interrogators in Baghdad produced actionable intelligence nearly every day but those at Abu Ghraib produced nothing of value—not little of value, NOTHING of value.
He opines,
But while trying to make sense of my own experiences, I’ve also read extensively on the subject, and all that I’ve read reinforces the same conclusion: torture is an immensely impractical intelligence-gathering tool. Professional interrogators who have become truly expert at employing rapport-based approaches decry torture’s effectiveness as an intelligence-gathering tool. Yes, you sometimes get the truth, but this truth is rarely substantial and is typically buried in what I’ve heard professional interrogators call “the longest list of lies in the world.”

Those who claim that torture has more chance of success than rapport-based approaches have limited (if any) direct experience with these approaches. They’re rarely real interrogators....

When the 9/11 attacks took place, nearly 3000 Americans lost their lives, and so many Americans lost their minds, U.S. Army interrogation doctrine (as expressed in the 1987 Intelligence Interrogation manual) had it right: “Experience indicates that . . . the use of force is a poor technique, as it yields unreliable results, may damage subsequent collection efforts, and can induce the source to say whatever he thinks the interrogator wants to hear.” Unfortunately, this doctrine—which reflected the practical experience of generations of interrogators—was thrown away by arrogant amateurs who thought they knew more than the professionals.
He points out that there's more to the debate than "does it work",
The question of "does it work" aside, there are HUGE strategic drawbacks to torture, such as how it undermines the rule of law, corrupts those who use it, undercuts military training, cedes moral high ground to our nation’s enemies, creates distrust among allies, sows dissension at home, serves as a source of recruits and donations for our nation’s enemies, creates irreconcilable enemies, and makes the ultimate goal of any conflict—its peaceful resolution—increasingly difficult.

Quite simply, for a mature democracy in the information age, there may be no surer tool for prolonging conflicts and shaping defeat than employing torture.
By pretending that opponents of torture begin and end their argument with, "It's wrong", Goldberg conveniently avoids addressing any of the more difficult arguments against torture.

Goldberg then brings in the false analogy:
And this suggests why the talking point about drone strikes has such power. Killing is worse than torture. Life in prison might be called torture for some people, and yet we consider the death penalty a more severe punishment....

It’s odd: Even though killing is a graver moral act, there’s more flexibility to it. America killed hundreds of thousands of innocent people in World War II, but few would call that murder because such actions as the firebombing of Dresden were deemed necessary to win the war.

In other words, we have the moral vocabulary to talk about kinds of killing — from euthanasia and abortion to capital punishment, involuntary manslaughter and, of course, murder — but we don’t have a similar lexicon when it comes to kinds of torture.
It would be interesting to hear Jonah Goldberg's description of the military justification of the firebombing of Dresden, which I expect would be about as deep as his understanding of Mussolini's connection to fascism -- "Oops, I forgot Mussolini was a fascist".1

Goldberg is obviously no student of history, but if he were he might have learned that the allied commanders who ordered such acts as the firebombing of cities in Japan knew that their acts were legally dubious and knew that they would likely result in war crimes charges if the Allies lost the war. That is the very sort of accountability that John McCain wishes to bring to torture -- to have the person making the order do so in contemplation that his decision could result in his spending many years in prison (or, in the case of war crimes, the hangman's noose), something that also likely plays into the public acceptance of the necessity defense.

Also, in war the question is almost never going to be, "Should we fire a missile or should we conduct a precision raid to kill or extract an enemy leader or terrorist". While it may be true that, in hindsight, a terrorist might prefer to be tortured and imprisoned over being blown up by a drone, perhaps along with members of his family, that only becomes relevant if the putative target of a drone strike decides to turn himself over to U.S. forces.

Goldberg is essentially arguing that, having accepted that torture is wrong, we need a new euphemism for torture, or at least for the modest amount of torture that Goldberg would have us see as something other than torture. Actually, the issue of whether or not an act constitutes torture can be made reasonably clear, using a definition such as Lt. Col. Pryer's, "Today, I judge any tactic designed to inflict physical or mental pain severe enough to 'break' someone to be 'torture.'". Goldberg might want us to believe that offering a criminal suspect a cup of coffee during an interrogation is an insidious form of sleep deprivation, tantamount to making him stand without sleep and forcibly waking him every time he dozes off, but I suspect that most others can see the difference between an interrogation that goes on arguably past the point when a suspect should be allowed to sleep and intentional sleep deprivation.2

Moreover, in the former case the suspect can argue in court that the circumstances of the interrogation became unduly coercive -- and that is made easier if it's clear that interrogating officers were intentionally depriving the suspect of sleep in order to continue the interrogation of a suspect whose mental faculties were breaking down. There is no point to trying to use Goldberg's "little bit of torture" approach, as torture is only useful if the suspect breaks. Once you make the decision to torture, there's no level at which your actions do not constitute torture.

I don't want to overstate things here. Sometimes a suspect can be inspired to provide self-incriminating information based upon threats or statements that are coercive, but are not deemed to be torture. The federal government has a reputation for threatening to bring charges against a primary suspect's spouse, or possibly other family members, when pressuring a suspect to confess to a crime or to accept a plea bargain. Suspects detained for interrogation may be told that a co-defendant is making a confession that implicates them, and that if they don't confess they'll get a more severe penalty. I don't think that Pryer is referring to causing a suspect to break his silence, or break from a prior narrative, when he speaks of "mental pain severe enough to 'break' someone" -- but I would not be surprised if he argued that you would be much more likely to get reliable information from criminal suspects if you successfully use rapport-based techniques, particularly if he's familiar with false confession cases.

Goldberg then presents the argument, "Our torture is different, because our motives are pure,"
When John McCain was brutally tortured — far, far more severely than anything we’ve done to the 9/11 plotters — it was done to elicit false confessions and other statements for purposes of propaganda. When we tortured Khalid Sheikh Mohammed, it was to get actionable intelligence on ongoing plots. It seems to me that’s an important moral distinction. If I torture a fiend to find out where he left a child to suffocate or starve in some dungeon, that’s a less evil act than torturing someone just to hear them renounce their god or country. Also, KSM was not some innocent subjected to torture to satisfy the grotesque desires of some sadists. He is an unlawful combatant responsible for murdering thousands of innocent Americans.

This may sound like nothing more than a rationalization. But that is to be expected when you try to reason through a morally fraught problem.
What it sounds like is both an oversimplification and a rationalization. While it is true that torture states use torture in order to obtain statements useful for propaganda purposes, as well as to generally intimidate the public, it is not true that they thus never use torture to gain intelligence about criminal, dissident, or terrorist activity, or to try to obtain useful intelligence from enemy soldiers. I suspect, also, that their torturers are every bit as good at rationalizing their conduct as is Goldberg when it comes to his insistence that when Americans torture they have only the purest of motives.

Here, again, Goldberg avoids addressing the actual positions of torture opponents. People like John McCain fully embrace the idea of American exceptionalism, and are going into this debate with the assumption that our motives in using torture will be pure. Unlike Goldberg, however, he has enough understanding of both history and the realities of torture to recognize that the use of torture should nonetheless be extremely rare, and that the legal framework for the use of torture should force decision-makers to consider both the need for torture and all reasonable alternatives before authorizing its use.

--------------------------------
Footnotes:

1. Goldberg's actual statement,
Mussolini was born a socialist, he died a socialist, he never abandoned his love of socialism, he was one of the most important socialist intellectuals in Europe and was one of the most important socialist activists in Italy, and the only reason he got dubbed a fascist and therefore a right-winger is because he supported World War I.
Goldberg's defense of his error is that he "misspoke", a claim that may be true but, if so, is akin to somebody professing to be an expert on the Middle East conflicts while forgetting, even momentarily, about Mohammed's connection to Islam. Actually, given that Mussolini railed against socialism, it would be a bit like such an "expert" arguing that Mohammed unsuccessfully tried to stop Islam.

2. One wonders what distinctions Goldberg would draw that would render the techniques of torture to be, in his view, non-torture. Is there actually a degree of waterboarding that could be deemed anything but torture? Would he defect rectal feeding -- "As long as you don't use any more hummus than you get in one of those airline snack packs" -- or would he concede that some techniques are always torture even if used only to a limited degree?

Thursday, December 11, 2014

Should We Keep the Facts of Torture Secret

An argument I've heard any number of times, in which I find little merit, goes like this:
Some, like U.S. Sen. John McCain (R-Ariz.), argue that the Islamic State and al-Qaeda already have the United States in their cross-hairs, so what’s the difference. That’s true in general, but will this report’s release help these groups find new foot soldiers, followers and funding?

The info in this document, especially with its lurid details, could prove a propaganda bonanza for existing or future terrorist groups — not to mention "lone wolves" who may be incited to violence by it.

This is a serious risk.
The assumption behind the argument is that the people who were on the receiving end of U.S. torture are every bit as in the dark about it as the people of the U.S., who were told about water boarding and not much else. As if, when asked, a suspect who was tortured but eventually released would decline to describe what happened during his detention, lest he make people angry at the U.S.

I recognize that a lot of people here bought into the "They hate us for our freedom" canard, but really.

Tuesday, December 02, 2014

A Republican Punch That Shouldn't Have Landed

With the Republicans making noise about withholding funding from DHS, a rather irresponsible form of brinksmanship, The Guardian describes an exchange between Secretary of Homeland Security, Jeh Johnson and Lou Barletta (R-PA):
Yet Barletta did land one of the Republicans’ few punches when he pressed Johnson over the fact that undocumented migrants granted permits to stay in and work in the country would not qualify for benefits under the Affordable Care Act.

He said that put them at an advantage over US citizens, who he referred to as “American workers”.

“You don’t think an employer will think, ‘Do I keep an American worker and provide health insurance or pay a $3,000 fine, or do I get rid of the American and hire an undocumented worker?’” Barletta asked.

“I don’t think I see it that way,” Johnson said. “You don’t think any American workers would see it that way?” Barletta continued.

“I don’t think I see it that way,” Johnson replied. “No, sir.”
A better response would be, "If in your analysis of the legislation that's even a remote possibility, passing a bill to prevent that problem would provide a quick and easy resolution in favor of the American worker."

Racism: New vs. Old

David Brooks informs us,
But the other reason that the civil-rights era comparisons [to Ferguson] were inapt is because the nature of racism has changed. There has been a migration away from prejudice based on genetics to prejudice based on class.
How might that new class-based racism manifest itself in the real world?
This class prejudice is applied to both the white and black poor, whose demographic traits are converging.
That doesn't seem quite right. Consider, for example, Charles Murray's writings: poor white folk are on the wrong end of a cultural divide; poor black folk are on the wrong end of the bell curve.
But classism combines with latent and historic racism to create a particularly malicious brew.
And what is it that percolates from this brew?
People are now assigned a whole range of supposedly underclass traits based on a single glimpse at skin color.
So... unlike old-fashioned racism, where people might be judged by the color of their skin, we now live in a new era in which people are judged by class, which is merely inferred by the color of their skin?

Having described in some detail the manner in which the elite of "18th- and 19th-century Britain" looked down on the poor, it's pretty clear that there's nothing new in the class divide that Brooks describes. The elite of that era might have been more apt to ascribe their success to class and station, while Brooks is enthralled with the notion that we're in a different sort of "meritocracy", but other than that Brooks is still describing people who perceive themselves as being in an elevated social class looking down on those they regard as their inferiors. Classism is anything but new.

Even if I disregard that history and assume that Brooks has identified an actual change in the thought process behind racism, why would it matter? Is the distinction supposedly that the "new" racist will set aside his assumptions based on skin color if the person he assumes to be of an inferior class somehow demonstrates that he's part of the "respectable' meritocracy"? While certainly there are some people, past and present, who see skin color and reach the unyielding conclusion that the person they are looking at is inferior in every way, it seems to me that even in far more overtly racist times, racism has worked in pretty much the way Brooks describes -- an assumption is drawn based on skin color, but with some room for somebody to prove that they're exceptional -- that they're not like the majority of their race, people who can be discounted based on that glimpse of pigmentation. The change Brooks describes is one of degree, not one of kind.

Monday, November 24, 2014

Moving Past the Cosby (Side) Show.....

A few weeks ago I read an article in which a journalist was questioning why rape criticisms against Bill Cosby didn't get much media attention. The accusations have been percolating since the mid-1980's and many people were aware of the accusations, although not necessarily the full details. Now they charges have broken through into mainstream public consciousness, and they're all over the media.

The media deserves no award for bravery, coming to the story this late in the game. Whatever excuses may have existed in the past, it is difficult to see the story as anything but the media's siding with the rich and powerful up to the point that the story penetrated the public consciousness -- by virtue of a comedian's accusations against Cosby going viral. While some in the media are offering some introspection, and you'll find an occasional mea culpa, the intensity of the present coverage seems to me to reflect another failure of the media, its tendency to shine a spotlight on an issue of current controversy or debate in order to try to grab as many viewers or readers as possible, even if that means tending toward the salacious or missing the forest for the trees.

Dare I suggest, I think there is a very big forest out there, covering the same time period as the accusations against Cosby, and that the media is continuing to protect the wealthy and powerful.

A few years ago in the U.K., a series of stories broke about a deceased entertainer who, as it turned out, was a serial child molester. If you even scrape the surface of the story, you hit the same sort of issue you encountered in the Jerry Sandusky case -- acts that were sufficiently brazen and careless that they ended up being witnessed by others, but with the decision made not to involve the police. Not to kill the golden goose, or tarnish the image of his employer, but to cover up. The accusations against Cosby are similar to those made against Roman Polanski, except Cosby is alleged to have targeted adults.

Corey Feldman has indicated that, as teen stars, he and Corey Haim were targeted by predatory adults. You don't have to look very hard to find "casting couch" stories in which young actresses, and some young actors, found themselves in awkward situations with people -- usually unnamed -- who were trying to obtain sexual favors in exchange for a part, or other help advancing their careers. Sometimes when a story breaks about a predatory individual it's immediately apparent that his predilections were widely known, and widely ignored. Australian entertainer Rolf Harris, accused of sexually assaulting teenaged girls, earned himself the nickname "the Octopus". An Australian news journalist recounts,
Rolf Harris was known as “the Octopus”. But he wasn’t the only one.

During 25 years in television, I was warned by colleagues about dozens of stars who would grope, molest or harass anyone who took their fancy.

These include a presenter who is a household name.
An example is given of how that nationally famous news presenter sexually groped a female employee as recently as two years ago, but his identity is withheld. The article identifies only two sexual offenders, both of whom had already been publicly identified by others and one of whom had been criminally convicted.

I stumbled across a letter written in response to a Richard Cohen column,
Richard Cohen wrote in his Nov. 18 op-ed column, “None of our business,” that the sexual misbehavior of a “great man” should go unpublished. I disagree.

A man who believes in his own greatness may feel he is exempt from rules of honorable behavior that apply to others. That belief reveals a possibly dangerous arrogance in his character.

Sure, the press can go overboard with scandal, and as a former reporter and journalism teacher, I deplore that. But as a woman, I’d like to know if a so-called great man lies to his wife and uses women as sex objects. I may vote for him anyway when weighing that knowledge against his other attributes, but I’ll see him more clearly as imperfect and flawed, and most certainly avoid calling him “great.”
The column is about Martin Luther King, Jr., and the FBI smear campaign against him,
I did not know at the time [in 1964] about King’s affairs. I learned about them later, once the FBI bugs of King’s home and hotel rooms had become common knowledge in newsrooms around the country. But here’s the thing: No one printed a word of it. I know of no item in a gossip column and, since celebrity TV junk was still in the future, nothing on the air either. Lots of people knew the secret, but the press in those days respected the privacy of public figures: King was saved from ignominy. He was preserved for greatness.
Cohen also mentions Gary Hart, FDR, JFK, Clinton, Thomas Jefferson, James Madison, Lyndon Johnson, Anthony Weiner.... For the most part, examples that involve consensual extramarital relationships. Jefferson's case is particularly discomfiting -- you can't have a consensual relationship with a slave, although contemporary knowledge of the affair might have offended more people based upon her race than upon the fact that it was an extramarital affair or involved a profoundly coercive power dynamic.

Cohen's complaint also is of another time. Gary Hart brought to an end the era in which you could be an unapologetic skirt chaser and still aspire to national office. Senator Bob Packwood helped end the era in which powerful politicians could do whatever they wanted to their employees behind closed doors -- and, if you recall, he threatened to take down other politicians who he claimed had committed acts comparable to his own, before choosing instead to exit politics and enrich himself by becoming a lobbyist.

I find it difficult to be wistful for an era in which the powerful could easily abuse the weak, even in a nominally consensual adult-to-adult relationship. It may be that media coverage of politicians' sexual peccadilloes has the unfortunate effect of causing somebody with non-abusive tendencies to either stay out of politics or to lose an election, but I think there is nonetheless a significant net benefit. We have enough sociopaths and narcissists at the head of government and industry without also giving them -- restoring to them -- free reign to sexually abuse their underlings. In the current era, MLK would know that if he didn't control himself with women he would almost certainly be held accountable in the court of public opinion. It would be up to him to decide if it was worth the risk. It should not be the media's job to protect him from himself, let alone to "protect" us from knowing the truth.

We have had an evolution in our society over the past fifty years, relating to how we treat sexual abusive conduct and how we respond to sexual harassment in the workplace. The improvement has come not only through improved legal remedies for victims of abuse, but through the publicity surrounding abuse cases. There is a valuable social lesson to be learned from stories about abusers being held accountable for their conduct, both in terms of helping other victims of abuse feel less isolated and in letting them know that legal remedies are available.

It's really easy, alarmingly easy, to rally to the defense of the rich and powerful with little risk to your professional reputation. There's certainly a lot more risk in taking on the rich and powerful, and more difficulty in convincing your publication's lawyers to let you push a story into the public consciousness. I find it difficult to give a reporter or commentator credit for ignoring an open secret for years or decades, only to jump onto the story when it is finally broken by others, even if they admit that they should have addressed the story earlier or that the media failed to properly handle the allegations.

If journalists or commentators want to convince me that they're actually sorry to have not covered the story at an earlier time, or that they want to improve their profession, I suggest that they start covering some of the other "open secrets" about our business, entertainment and political figures and celebrities, rather than again waiting until they can safely and easily jump onto the bandwagon.

Friday, November 21, 2014

Before Charles Lane Accuses Others of Hypocrisy, Perhaps He Should Look Up the Definition

I've commented in the past about accusations of hypocrisy, and how they are often misplaced. It's not hypocritical for Warren Buffett to pay only the taxes required by current law, while simultaneously arguing that taxes on the wealthy should be raised. Even assuming that the material facts are identical, it's not necessarily hypocritical for somebody to take a different position than the one they took years or decades earlier, as sometimes people change their minds. It's not hypocritical to stop protesting an action or issue that once drew you out to the streets, every time that issue comes up -- you can continue to feel strongly about the issue while succumbing to issue fatigue, recognizing that your protests are not having any effect, or moving onto other issues or priorities that get in the way of organizing protests and rallies.

Still, accusations of hypocrisy abound. Certainly there are times that they are warranted, but often they're the hallmark of a lazy columnist. Falling into that latter category, Charles Lane is waving his finger at "liberals".
Building the Keystone XL pipeline, to speed the flow of crude from Canada’s oil sands to refineries in Texas, would be “game over for the climate,” says NASA-scientist-turned-climate-activist James E. Hansen. Heeding Hansen’s words, environmentalists have sworn to stop the project, which requires U.S. government approval.
Perhaps we should note, up front, that not all environmentalists are liberals, and not all liberals are environmentalists.
Yet large, bipartisan majorities of the House and Senate support Keystone XL, as does 60 percent of the American public, according to the latest USA Today poll.
And... that has absolutely nothing to do with whether the project is environmentally wise.
Today, it is still on hold, because Tuesday night 41 Senate Democrats voted against ending debate on a bill to green-light Keystone XL, thus thwarting what might have been a disastrous exercise of democracy.
Perhaps it escaped Lane's notice, but that is not the first-ever use of a filibuster in the Senate. As Lane himself noted in a prior screed,
Republican opposition to Obamacare may be hypocritical, irrational and opportunistic — especially GOP opposition to the exchanges, which the party previously favored in various forms. And, yes, the modern filibuster takes counter-majoritarianism to an extreme even the Framers probably didn’t contemplate.

But the Constitution lets the Senate write its own rules.
The fact that Senators who are part of an institution that has created and upheld the filibuster actually employ a filibuster is in no way hypocritical. Even if we assume (in defiance of the facts) that each and every one of those Senators would vote for straight majority rule in the Senate, it would not be hypocritical of them to employ the actual rules of the Senate when voting on legislation.
In short, the filibuster may have just saved the planet, at least for now.

Or so it must be believed by Keystone XL’s opponents — even though they include some of the same people who decried the filibuster, not unreasonably, as an obstructionist, anti-majoritarian evil when Republicans employed it against President Obama’s health-care reform, cap-and-trade and other progressive legislation.
Here, through his link, Lane suggests that Markos Moulitsas is a hypocrite for opposing the filibuster and... he doesn't offer a link, but perhaps Moulitsas praised the Senate vote somewhere? As with Warren Buffett and his taxes, even if Moulitsas is overjoyed that the pipeline bill was filibustered, it's not hypocritical for him to advocate changing the Senate's rules while nonetheless encouraging Senators to use those rules to advance policy positions he favors. The concept isn't even slightly difficult to grasp -- it is possible to believe that something is bad on the whole such that it should be eliminated, even when recognizing that it has potential value under certain circumstances.

When I saw the film, Shattered Glass, I had some sympathy for the Charles Lane played by Peter Sarsgaard, a well-meaning guy who got duped by one of his employees. But the Charles Lane who writes for the Washington Post seems to have a different problem -- he seems to be lazy and indifferent to the facts, the sort of approach to journalism that can allow somebody like Stephen Glass to get away with feeding him the most absurd fabrications as long as they don't conflict with his preconceptions. When you click through the link to the actual statement by Markos Moulitsas, Lane's exemplar of a hypocrite, you hear this:
There's a huge movement, and I think it's going to happen, to change the filibuster rules from requiring sixty votes to requiring forty "no" votes. Right now if you want to filibuster you don't even have to show up, you know, the onus is on the "pro" side to round up the sixty votes. So when you turn it to forty votes you gotta have those forty people there, and if one of them has to go to the bathroom, boom, you call cloture, and that's that.
Moulitsas was not calling for the elimination of the filibuster -- he was calling for the perpetuation of the filibuster, but with a change in how you vote for cloture. Given that Lane knows that forty-one Democrats voted to filibuster, and he should know that Moulitsas favors a filibuster rule that would sustain a filibuster based on those forty-one votes, his insinuation of hypocrisy has no basis in reality. It's instead an example of Lane getting his facts wrong. And with that example having been dredged up from September 10, 2010, either Lane couldn't find an actual example of a statement from a liberal that would support his thesis, or he got lazy.
Majority rule is not the only progressive principle some progressives seem ready to sacrifice on the anti-Keystone altar.
First, are we talking about "liberals", are we talking about "progressives", or does Lane view the term as interchangeable? Either way, I am not aware of any consensus among either group that we should eliminate representative democracy in favor of direct democracy.

If we're simply talking about Senate rules, to put it mildly, there is no consensus among liberals or progressives that the filibuster should be abandoned. Some believe that it should be eliminated, but others (as with Lane's exemplar progressive, Markos Moulitsas) favor continuing the filibuster but changing the rules to make it less of a tool for obstruction, and still others would leave well enough alone. Meanwhile, it was not so many years ago that Republicans on the floor of the Senate made frequent calls for a "straight up or down vote" when confronted with the filibuster. Some of that opposition may have been opportunistic, but the fact is that the recognition that the filibuster is anti-democratic and could benefit from reform is not something that is unique to the political left.
Remember the corrupting influence of money on politics? Billionaire Tom Steyer has spent millions on TV ads backing environmentalist Democrats and trashing the pipeline itself, thus purchasing outsize influence in the White House and the Democratic Party.
Although this should go without saying, campaign finance reform has traditionally been a bipartisan issue, once championed by none other than John McCain. As should also go without saying, proponents of campaign finance reform have not proposed that no money be spent on political advertising. But beyond that, we're back to Warren Buffett and his taxes. You can believe that wealthy individuals and corporations gain an outsized voice in politics and government through their direct and indirect contributions, while nonetheless believing that you should take full advantage of the existing laws to advance your causes. There is no hypocrisy in advocating for a change in the law while operating under the existing laws, and it would be extraordinarily foolish to refuse adequate funding for your political goals out of principle when the likely consequence would be that your opponent would win. Heck, Steyer even spoon-fed that reality to those who are a bit slow on the uptake, and Lane quotes the explanation:
“On issues as critical as climate change, we will take action and work within the system that we’ve got until we can change it,” Steyer pragmatically told Forbes magazine.
How can Lane read that statement yet fail to understand that it's not an example of hypocrisy?

Next up, infrastructure,
Most of the time, liberals tout the job-creating potential of critical infrastructure projects, based on the indirect “multiplier effect” that even short-term construction can have on economic growth.
Perhaps lane doesn't realize that with his opening qualifier, he hobbled his argument before it left the starting gate. There is a vast difference between supporting infrastructure projects most of the time, and supporting them all of the time. We should note, also, that many conservative voters recognize the need for and benefit of infrastructure projects -- but that doesn't mean that either side has to embrace every infrastructure project, that they cannot prioritize certain types of project over others, or that they cannot object to an infrastructure project that they deem wasteful or harmful.
For Keystone XL, though, different rules apply.
Apparently, to lane, "different rules" means roughly the same thing as "the same rules".
We are instructed, by Daniel Weiss of the Center for American Progress, among others, that the $8 billion project will create “only” 3,900 “direct” one-year construction jobs and a mere 50 permanent ones. Forget the 42,000 jobs that a State Department analysis said would be “supported” by the project.
Here, rather than pointing to the actual State Department report, Lane links to a post from the Washington Post's Wonkblog. That blog post indicates that "About 3,900 of [the] jobs would be temporary construction jobs", and that once built, "the pipeline would support 50 jobs". In other words, Lane is complaining not that the one person he mentions got the facts wrong, but that he should have provided additional facts.

When you go to the written statement of Daniel Weiss, you find that his reference to the number of jobs that would be created by the Keystone XL pipeline was specifically addressing the number of permanent jobs that would be created. While Lane can certainly argue that a greater discussion of temporary jobs would make the statement more complete, surely he can understand that temporary jobs are not of great significance to an assertion about permanent jobs. After all, if he cannot make that distinction, he is guilty of the same offense he attributes to Weiss -- Lane does not mention that either that the 42,000 indirect jobs would be temporary, continuing only during the construction of the pipeline.

Lane is also engaged in a sleight of hand. The people -- liberal and conservative -- who favor infrastructure projects have done so in no small basis upon the position that although a typical infrastructure project is relatively short-term, we need to invest in our nation's decaying infrastructure and that the short-term boost in employment can help stimulate the economy. As previously stated, this was never an endorsement of any infrastructure project. In fact, the proposed focus has typically been on public infrastructure.

But as Lane knows, those commenting on the very small number of permanent jobs that will result from pipeline construction are addressing a different issue. They were attempting to rebut exaggerated claims by pipeline proponents about the number of jobs the pipeline would generate, and to point out the indisputable fact that the pipeline will create an inconsequential number of long-term jobs. There is absolutely no reason to believe that the people making these observations about Keystone XL would not say exactly the same thing about other major infrastructure projects.
Construction unions understand that employment in their field is inherently temporary in the sense that it ends when the building is built. They strongly favor Keystone XL. Yet this reliably Democratic middle-class constituency is also being thrown under the anti-Keystone bus.
Wow... crocodile tears for union worker.

It's even slightly surprising that unions whose members would benefit from construction jobs favor construction projects. I would not be surprised if there was significant union support to build "the bridge to nowhere". The question of whether a particular faction supports a project does not answer the question of whether the project is wise or appropriate. Further, given that only a few short paragraphs ago Lane was grousing that progressives have forgotten their principle of "majority rule", Lane wants to have it both ways. If it's hypocritical and an affront to progressive principles to not abide by the judgment of the minority, how can it be simultaneously an affront to progressive principles to not allow a vocal minority to impose its will on the majority? Does Lane not find it obvious that it's one or the other?
The least attractive violation of progressive values by Keystone XL opponents’ was their attempt to recast this joint project of Canada and the United States in xenophobic terms.
Oh, this should be good....
One Steyer-financed ad warned that China is “counting on the U.S. to approve TransCanada’s pipeline to ship oil through America’s heartland and out to foreign countries like theirs.”
So... based on one ad that virtually nobody in the nation has seen, Lane has concluded that progressives have embraced xenophobia.... (Has Lane ever noticed the Republican Party's treatment of issues like immigration?)
The only basis for this claim was that state-owned Chinese companies have a modest investment in Canada’s oil sands. The Post’s Fact Checker, Glenn Kessler, awarded the ad four Pinocchios, noting that “it relies on speculation, not facts, to make insinuations and assertions not justified by the reality.”
That's it, then? One ad, financed by one individual, seen by virtually no one? It's difficult to imagine how Lane could build a stronger case.
Speaking of the planet, perhaps the only person on it who still hasn’t made up his mind about Keystone XL is President Obama, though his dithering has recently given way to expressions depressingly reminiscent of those in the Steyer ad.
In reality, President Obama has expressed that he is waiting for private lawsuits over the pipeline's proposed path to be resolved, and for the State Department to complete its analysis of how the pipeline will affect the environment, before taking a position on the pipeline. It's easy to understand why some might want the President to take a firm position, pro- or con-, before all of the facts are in. It's also easy to see why the President would instead choose to remain neutral pending either the outcome of litigation and studies that might prevent the pipeline's construction, or the presentment by Congress of legislation for his signature. Lane chooses the pejorative, "dither", but there is no reason to believe that the President is being even slightly indecisive on the question, as opposed to playing a careful political game on a hot button issue.

And yes, obviously, his suggestion that the President is xenophobic is absurd.
“Understand what this project is,” he said at a news conference in Burma last week. “It is providing the ability of Canada to pump their oil, send it through our land down to the Gulf [Coast], where it will be sold everywhere else.” Their oil. Our land.
Does Lane disagree that the oil belongs to Canada? Does he disagree that a pipeline that will run across the United States is accurately described by the President as crossing "our land"? If Lane actually believes that the President's statement reflects xenophobia or anti-Canadian agitation, he should seek psychiatric help.
Yet his own State Department’s exhaustive review of the project found that re-exports of the oil, either as crude or in refined form, were unlikely.
This time around, Lane links to the actual State Department report. However, he is not being honest about the report's conclusion:
It is likely that increasing amounts of WCSB crudes will reach Gulf Coast refiners whether or not the proposed Project goes forward (products from this processing will be used in both domestic markets and for export). As a result, future refined product export trends are also unlikely to be significantly impacted by the proposed Project.
The report does not suggest that export won't occur. It suggests instead that enough Western Canadian Sedimentary Basin (WCSB) crude will reach the Gulf, with or without the pipeline, that net exports are unlikely to be affected.

Lane's second link is to a Reuter's analysis of the President's statement, which it declares to "ring[] only half true".
"Some of it will stay in Gulf, some of it will leave," said Sarah Emerson, president of Energy Security Analysis, Inc. in Boston. "I don't think anyone would have built if they thought the oil was just going to stay in the Gulf Coast, that is like bringing coal to Newcastle."
It would be fair to accuse the President of overstatement. However, once again Lane is guilty of the very offense he attributes to others -- he is misrepresenting the State Department's report and is implying, in defiance of the facts and his own sources, that export is unlikely to occur.
Hypocrisy and rhetorical flimflam are standard in politics, and liberals are not the only guilty parties in the Keystone XL battle.
At this point, Lane has identified zero examples of hypocrisy. Not a one. It's not even clear that he understands the meaning of the word. As for "rhetorical flimflam", it's a colorful way of describing something that is inherent to politics. To observe, even with colorful language, that politicians are guilty of practicing politics seems somehow banal.
Keystone XL proponents have undoubtedly tapped corporate coffers to fund their share of exaggerations about the project’s benefits.
Lane speaks of this as if it's an assumption, not a fact. It's a fact.
And of course climate change is real and must be addressed.
Which doesn't mean that Lane isn't going to insist that the President state a firm opinion, or insult him for declining to do so, while we await the environmental impact report.
But in this case progressives are not only being intellectually dishonest and traducing their values, they’re doing so pointlessly: This end doesn’t justify these means.
Really, other than waving his hands a lot, all Lane has documented is that one wealthy person produced one TV ad, approved by nobody but himself and seen by virtually no one, that has an element of xenophobia; and that the President has implied that more of the WCSB crude will be exported than is likely to be the case. And in producing that tepid indictment of "liberals", he has misstated the facts, misrepresented the positions of people he has held up as hypocrites, and misunderstood the basic issues under debate.
Far from being “game over” for the planet, Keystone XL would not boost greenhouse gas emissions significantly, according to State Department experts. With or without Keystone XL, Canada’s oil sands will still be turned into crude oil and shipped, often by rail, to markets in the United States and elsewhere. The environmental movement’s energies — not to mention Steyer’s millions — would be far better spent elsewhere.
Lane's implication is that the crude is going to be extracted, shipped and used, so environmentalists may as well shut down and go home. Sometimes, even a fight for a losing cause can bring about results that benefit the losing side -- a better educated, more aware public, the exercise of greater caution when proposing and planning future projects with significant potential environmental impact, and the like. Also, while Lane writes off the possibility, perhaps those environmentalists don't intend to call it quits if the pipeline is not constructed. But, frankly, it's not his place to tell environmentalists how to expend their energies or to tell Steyer how to spend his own money.

In their tendentious effort to deny these realities, progressives risk violating yet another cherished principle that, in their view, distinguishes them from the right: that of letting facts and science, not ideology, determine policy.
And here Lane is back to his earlier trick of conflating the terms "environmentalist" and "progressive" -- as if there are no conservative environmentalists nor any progressives who don't oppose the pipeline. And in relation to letting the facts and science dictate policy, what was it that Lane said only a few sentences ago?
And of course climate change is real and must be addressed.
So which is it -- is this a situation in which climate change is real and must be addressed, or a situation in which that science is already known and weighs in favor of the pipeline? If Lane's theory is that the oil will be extracted and used, rendering the existence of the pipeline irrelevant to the debate, he's missing the actual goal of the environmentalists opposed to this project -- they don't want that oil to be extracted or used at all. That's not because they are ignorant of science and climate change, or because they are refusing to consider the science when forming their positions on WCSB crude -- quite the opposite. Given that Lane is now endorsing making decisions based on science, it also seems odd that he wants the President to get ahead of the environmental impact analysis for the Keystone XL pipeline. It's almost as if Lane is privileging ideology over science.
Campaigning for a symbolic victory over the fossil-fuel industry, they may end up with a pyrrhic one — if any.
It goes without saying that the environmentalists could lose their fight against the pipeline. But it also goes without saying, even with due respect to Lane's accusations of imagined hypocrisy, if the environmentalists who oppose the pipeline prevail they will not view their victory as pyrrhic. More likely, they will be energized for their next battle.

Do you know what would have made Lane's column better? If, rather than launching a poorly reasoned screed about "liberals", "progressives" and "environmentalists", that did little more than reveal his sloppy, lazy fact-checking, he had tried to lay out the case for why the pipeline is a good idea. He might have tried to explain how the pipeline compares to other possible infrastructure projects in terms of need, job creation and long-term benefit. He could have attempted to address environmental concerns, rather than brushing them off. Too much to ask?

Wednesday, November 19, 2014

Executive Orders - What, Me Worry?

On the editorial pages of a newspaper that can scarcely pass up an opportunity to beat the drums for war, Ruth Marcus has taken up the horror of the executive order. She's not employing in the over-the-top rhetoric of Ross Douthat, but she is concerned about the ever-present slippery slope,
Every Democrat should be nervous about President Obama’s plan for unilateral action on immigration reform.

Not because of the impact on an already gridlocked Congress, or because it risks inflaming an increasingly hostile public. Democrats should be nervous about the implications for presidential power, and the ability of a future Republican president to act on his or her own.
Perhaps Democrats have short memories, because it seems to me that we saw ample evidence of what a Republican president can accomplish through executive orders when G.W. Bush signed a huge stack of them while on his way out of the White House. Leaving that aside for the moment, we're speaking specifically of executive orders that are being proposed because Congress cannot or will not do its job. I'm not particularly concerned about setting a precedent, as there's nothing particularly unique or special about what President Obama is proposing. For that matter, were the President to refrain from acting, I have no reason to believe that a future Republican president would exercise similar restraint.

The very first concern Marcus raises is interesting, but not in the way she imagines,
First, is there a limiting principle that would constrain the president’s authority to effectively legalize everyone in the country?
Obviously, when we're speaking of this type of executive action, we're speaking of a context in which the White House wants to address an issue on which Congress refuses to speak. Executive orders must be consistent with existing law, and if Congress is willing to pass legislation it can either avoid the need for an executive order or preempt the president's plan.

Marcus's slippery slope rests on the idea that, in the face of Congressional dysfunction, a President may stake out the most extreme position he can arguably take under existing law. That's possible -- but I'm not sure that it would be a bad thing -- not because I want Presidents to sidestep Congress, but because that type of action may be the only thing that is sufficient to light a fire under Congress's posterior such that it actually does its job. If Congress won't act when faced with the most extreme interpretations of existing law, it's a fair inference that the demagoguery of its members doesn't amount to much and that they find that interpretation to be acceptable. Would it be a bigger threat to democracy for the President to stake out extreme positions, presenting the loudest possible "put up or shut up" to Congress, or for the President to tiptoe up to the edges of what might inspire Congressional action while taking advantage of that institution's unwillingness to do its job?

Marcus also argues,
Second, is there a limiting principle that would constrain future presidents inclined against enforcing other laws with which they don’t agree — and on which they’ve been unable to convince Congress to act accordingly?
As previously noted, we're speaking of executive action taken in the face of congressional inaction. Although it is conceivable that a future president might refuse to enforce the laws favored by his own party, it's far more likely that such a president would be in a position to simply ask his party to amend the law.

If a President refuses to uphold the laws of the United States in a manner that Congress finds unacceptable, Congress has a well-known constitutional remedy: impeachment. If Congress chooses not to pursue a legislative remedy, and chooses not to initiate impeachment proceedings, it again becomes difficult to regard any table-thumping condemnations of a president as anything but noise.

The situation in which Marcus's concern might have some weight would be one in which the White House and one chamber of Congress is controlled by one party, and the other chamber of Congress is controlled by another. In such a scenario, the chamber aligned with the White House would have to be sufficiently supportive of the President's actions that it would refuse to support impeachment and conviction, but be unwilling or unable to pass legislation addressing the issue due to the divided government. But legislators have easy access to the media, to make their case against a president. The House of Representatives can slow down or shut down the government, or vote to impeach even if it expects that the Senate will acquit the president. The Senate can similarly slow down the government, not only by impeding the progress of legislation but also by putting the brakes on executive appointments, and can also shut down the government. The tools may not be as precise as would be ideal for the theoretical task at hand, but Congress is anything but powerless.

The fact that I'm not particularly impressed with Marcus's arguments should not be interpreted as my supporting the idea of the executive forming policy through executive orders on matters that are best addressed through legislation. My concern is less about the slippery slope -- a form of argument that can be applied to any action, no matter how trivial -- and is much more about what happens when Congress won't or can't perform its duties. Unlike Marcus or the various members of her employer's editorial board, I find the issue of greater concern to be the fact that we are involved in a new war in the Middle East predicated upon an authorization that cannot reasonably be said to apply to the present circumstances, yet Congress is content to let the war wage on while refusing to pass a new authorization bill that could define its goals or limit its scope. There's not even a hint of concern from the editorial board that we should have congressional authorization for war before we get into yet another armed conflict in the Middle East.

The Washington Post editorial board wants the President to commit ground forces, in the form of special forces, to the front lines of the war with ISIS. It is chomping at the bit for the President to declare direct war on what remains of the Assad regime, without any apparent concern for what would follow the collapse of that regime. But one thing about which the editorial board is conspicuously unconcerned? The absence of Congressional authorization for the present war, let alone the escalated, potentially disastrous war that they propose.

To put it mildly, I'm not thrilled that the President is proposing unilateral action in the face of congressional gridlock. It would be better if Congress would do its job. But at least in the context of executive orders we're speaking not of Marcus's slippery slope, but of the President's following precedents set by prior administrations, and proposing lawful orders that are consistent with existing law. When it comes to war, the Constitution attempts to create a clear framework for the separation of powers, with wars to be initiated by Congress. If you're going to pretend concern about a possible constitutional crisis, can't you give that one more than a shrug and a yawn?

Tuesday, November 18, 2014

Congress Needs to Do Its Job

Daniel Larison is writing about one of his pet peeves:
Virginia Sen. Tim] Kaine’s point [on Congressional abdication and presidential overreach] is well-taken, and this is one more reason why the war against ISIS needs to be debated and voted on in spite of the president’s pretense that he doesn’t need Congressional approval. It is profoundly wrong to commit the U.S. to military action without having first considered the merits of the operation publicly and deliberately, but there is something even worse. It is even worse to commit the U.S. to a war that isn’t necessary for American security whether Congress has gone through the motions of a debate or not.... [Kaine is correct that Congress mustn’t be permitted to keep dodging its responsibilities on matters of war, and presidents mustn’t be allowed to wage wars without Congressional approval, but it’s even more important that members of Congress break the habit of signing off on the latest elective war. It is Congress’ habitual deference to bad presidential judgment on matters of war that is even more appalling than its refusal to debate and vote on the wars presidents choose to start. That can’t be fixed without first reviving Congress’ role in the process, but simply getting Congress to debate and vote on these wars is also woefully insufficient.
When I read Larison's complaint about a Congress that refuses to debate war, or that is excessively deferential to requests for the authorization to start or continue a war, I couldn't help but think of Ross Douthat's complaint that the constitution will be ruined if a Democratic president follows the lead of past Republican presidents and achieves by executive order what Congress has failed to accomplish through legislation. The sort of, "Wars, drones, security state, black hole prisons, torture, whatever.... immigration is serious argument that, to me, represents the worst form of missing the forest for the trees. Congress can pass legislation in response to an executive order, often long before the order takes effect. Congress can't unstart a war.

There is no hypocrisy in Larison's criticism of President Obama. Larison has consistently argued against the type of overreach he describes in Obama's actions. He is an established opponent of military adventurism and wars of choice. He's correct, in my opinion, that the nation would be well-served by Congress doing its job, by not turning a blind eye to unilateral military action by the President or granting its blessing after-the-fact. Larison is unimpressed with past Congressional debates over war authorization, and understandably so, but I'm not sure what the remedy would be short of electing different representatives.

My first reacton to Douthat's over-the-top rhetoric on how immigration reform could destroy our way of life (I exaggerate slightly) was that it was another example of Douthat writing about something that he doesn't understand. The blog posts that follow his editorials sometimes suggest to me that he encounters the basic facts and competing interpretations for the first time only after he publishes an editorial, with his making a strong, subsequent effort to reconcile the facts with his already-established opinion. In relation to unilateral war action, I found this complaint about the President's decision to go to Congress before waging war on Syria:
It would be a good thing for the country if the older constitutional norms regained some force – if we declared war in cases where we now issue so-called authorizations for the use of military force, and issued authorizations in situations where presidents of both parties claim the power to act with no congressional blessing whatsoever. But when a constitutional power atrophies, it’s extremely unlikely to be restored through the kind of last-minute, poorly-thought-out, and self-undermining approach that the White House has taken in this case.
You see, in Douthat's mind the President should have spent months reminding Congress that it has a role in debating the wisdom of involving a nation in a war, and should not have surprised them at the last minute by suggesting that they fulfill their constitutionally defined role. Douthat carries on at some length about legality and morality, bou don't have to spend much time reading between the lines to see what Douthat is actually thinking: He supported intervention in Syria, Congress voted against it, and it was thus wrong for the President to have gone to Congress.
Going to Congress is entirely optional, and it’s what presidents do when they’re pitching wars that they themselves don’t fully believe in, and need to rebuild credibility squandered by their own fumbling and failed alliance management. What future White House would look at that example and see a path worth following?
You see, where the Congress specifically addresses and issue and dictates how wars are to be declared, it is nothing short of weakness for a President to give anything more than lip service to those requirements. That's certainly not what Douthat would want a future president to do. You only destroy the constitution by acting in a legal manner, consistent with its terms, in the face of Congressional inaction, and in a context in which Congress is free to legislate on the issue, not by ignoring its explicit terms and launching wars that cannot be undone.

Douthat also complains,
Ah, you might say, but if Congress actually votes the Syria authorization down, then future presidents will feel constrained by the threat of a similar congressional veto whether they want to emulate Obama or not. Except that it’s actually more likely that future presidents will look at a congressional rejection in the case of Syria and see a case for going to Congress even less frequently than recent chief executives have done.
The problem with that conceit should be obvious: Congress does not have to wait for an invitation before it takes up the issue. Congress can look at a crisis in a nation like Syria and, on its own initiative, take up the question of whether military intervention is appropriate. It can pass resolutions urging the President to act. It can pass authorizations giving the President the power to Act. Or it can do the opposite, using its power of the purse to withhold funding for military action that it deems unwise. The question of whether or not Congress acts is not one that is controlled by the President -- it's controlled by Congress itself.

Douthat closes with the same sort of trademark silliness that he used in his immigration editorial,
It is just possible, I suppose, that if Congress votes “no” on this resolution and then the president unwisely goes ahead with strikes anyway and then the House impeaches the president for violating his oath of office... and then the whole thing spirals out into a wild constitutional crisis that leaves this administration permanently crippled, the end result of that crisis could conceivably reshape the White House/Congress balance of power on foreign policy, and leave future administrations more constrained.
Turning briefly to the Constitution, Article I, Section 8,
The Congress shall have Power... To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
Congress does not need to wait for a president to invite it to participate in a decision to start a war, or to sit on its hands until a president ignores its refusal to authorize war. It can initiate impeachment proceedings any time a president launches a war without its authorization. Congress has done its best to avoid having to take up its constitutional duties, from passing the War Powers Resolution, an ostensible check on presidential power that is effectively treated as a delegation of constitutional responsibility, to allowing the President to declare that pretty much any military action taken by the United States -- even an action explicitly targets a single country for invasion with the purpose of removing and replacing its leadership -- as a "police action".

Whatever temptation might exist to suggest that what we're looking at is a political debate, with Larison supporting a framework that limits international adventurism and Douthat embracing a President's right to unilaterally engage in that sort of adventurism in the role of "world policeman", the text of the Constitution plainly favors Larison. At the same time, it's difficult to avoid seeing Douthat's positions as being driven by anything other than politics. When it comes to war, he doesn't seem to care what the Constitution says, and if anything he is concerned that a president's respect for the Constitution would be too constraining. When it comes to the issuance of executive orders that are consistent with both the law and Constitution, at least when he opposes the outcome, taking action by executive order usurps the authority of Congress and threatens our system of government (never mind that, at all times, Congress remains free to act).

At the end of the debate, though, it boils down to the same fundamental issue: If Congress cannot or will not do its job, the President is likely to look for ways to act unilaterally. In my opinion it's worse in a context like war powers, where Congress has a clear, constitutionally defined role and, instead of fulfilling that role, effectively encourages the President to act unilaterally. Congressional deference to the President on matters that arguably should have required a formal declaration of war did not begin in the 20th Century -- it's a long-standing problem that became particularly glaring when Congress allowed presidents to launch the Korean and Vietnam wars as "police actions". Larison can complain that the President is operating under a pretense that he does not need Congressional approval for military action in Syria, but it's only a pretense if Congress is willing to act. If Congress won't call for a vote, and won't impose any consequence on unilateral action by a President, then (constitutionally or not) Congress has effectively delegated its war-making power to the President. Douthat can whinge that the President should not engage in perfectly lawful action to bypass Congressional gridlock, but again it's only an issue if Congress refuses to act.

Either way, nothing is going to change until Congress decides to start doing its job.

Democracy Will be Ruined if Obama Acts Like... Ronald Reagan

Poor Ross Douthat is in a tizzy over the possibility that President Obama may act through executive order, to address some of the immigration issues that the Republicans refuse to address through legislation. No, of course, Douthat makes no mention of the fact that the Senate passed an immigration reform bill that died in the Republican-controlled House. He instead sees the inevitable death of democracy in the President's following in the footsteps of Ronald Reagan and George H.W. Bush.

Douthat's first resort is to the slippery slope, the idea that if the President is willing to shield some groups from deportation in a manner consistent with his constitutional authority and existing law, he could exempt pretty much every person unlawfully in the U.S. from being subject to deportation. He fantasizes,
So the president could “temporarily” legalize 99.9 percent of illegal immigrants and direct the Border Patrol to hand out work visas to every subsequent border crosser, so long as a few thousand aliens were deported for felonies every year.
Even if we assume that to be the case, as Douthat's fantasy has no chance of actually becoming reality, it makes for a weak argument against the exercise of executive prerogative. If anything, though, Douthat's hyperbolic scare tactics reveal the weakness of the Republican position. Perhaps it is only in the face of such a fantasy scenario that House Republicans could be inspired to do their job and actually pass legislation.

Douthat makes an extraordinarily weak attempt to distinguish the President's proposal from past executive actions, revealing his essential ignorance of the facts.
In past cases, presidents used the powers he’s invoking to grant work permits to modest, clearly defined populations facing some obvious impediment (war, persecution, natural disaster) to returning home.
Obviously, the amnesty that Bush and Reagan granted to the wives and children of prior beneficiaries of legislative amnesty do not even slightly resemble what Douthat describes. Douthat also suggests that the number of potential beneficiaries somehow makes the Obama proposal different from what has come before. However, what the numbers truly reflect is the extent to which Congress has neglected this issue -- immigration reform was supposed to be a priority for George W. Bush, but he was never able to get a bill past his own party. As the previously linked article indicates,
"Bush Sr. went big at the time. He protected about 40 percent of the unauthorized population. Back then that was up to 1.5 million. Today that would be about 5 million."
The same article quotes a former Republican aide to then-Senator Alan Simpson that a difference at that time was that Congress indicated that it was going to pass legislation addressing the issue. That's really a distinction without a difference. Nothing is stopping Congress from passing immigration reform legislation, or a narrowly tailored bill directly addressing the issues on which Obama has proposed executive orders. Instead they talk about trying to tie anti-immigration provisions onto "must pass" legislation, potentially triggering a government shut-down. A mature Congress would debate and legislate. We don't have a mature Congress.

From there, it's back to the slippery slope. A President, Douthat argues, could "rewrite" vast areas of public policy through executive order. Again, Douthat ignores the fact that executive orders must be consistent with the law, and thus that Congress has an easy and obvious remedy to overreach -- namely, doing its job. Douthat adds one of his near-inevitable whinges about how Democrats are supposedly hypocritical,
No liberal has persuasively explained how, after spending the last Republican administration complaining about presidential “signing statements,” it makes sense for the left to begin applying Cheneyite theories of executive power on domestic policy debates.
Perhaps Douthat spent years complaining about executive overreach by Bush and Cheney; I can't say that I've followed him closely enough to know, and can say that I don't care enough about his past writings to try to find out. I could point out the obvious, that executive orders are not the same thing as signing statements. A signing statement declares, in effect, "I don't think that this law (or some provision of this law) is constitutional, so I won't be bound by it". Congress can't do much about a signing statement -- it has already legislated on the issue, so passing another bill saying "We really mean it" isn't going to have an impact.

As Douthat should know, an executive order must be consistent with federal law. With an executive order, Congress is free to express its will, and nothing is stopping Congress from passing an immigration law addressing these issues. A better analogy would be to the objections raised to the stack of executive orders that George W. Bush signed on his way out of the White House, but perhaps Douthat doesn't know that history -- or perhaps he doesn't want to allude to facts that betray how pathetic his argument truly is.

It's also interesting that Douthat floats from accusing "liberals" of being hypocrites to relying on a poll that documents that most Democrats oppose unilateral action.
According to the latest IBD/TIPP poll, 73% of the public say Obama should work with Congress on reforms. Just 22% say he should "sidestep Congress and act on his own using executive orders" — something the president has repeatedly pledged to do.

Among independents, 78% say Obama should work with Congress, with only 19% saying he should go it alone. Even among Democrats, only 39% say Obama should act unilaterally, while 54% say he should work with Congress.
Were Douthat more interested in facts and less interested in attacking "liberals" and the President, he might concede that the President's willingness to act by executive action flows from his own party's refusal to legislate on a wide range of important issues, including immigration. He could even call on his party to preempt the President or to make immigration reform a priority in January. Odds are it will take a year from the time any executive order is finalized to when agencies have new regulations and procedures in place to carry out the new policy -- Douthat should note that if the Republicans who will be in control of both chambers of Congress choose not to pass an immigration law during that year, they have nobody to blame but themselves. If they pass a clean bill and it is vetoed by the President, they will be in a strong position to complain -- but they have no apparent intention of being that responsible.

Douthat next resorts to the notion that the midterm election stands as some sort of informal referendum on the President's agenda, I guess signifying that he's supposed to abandon his agenda in favor of whatever the Republicans want. By now, Douthat should be aware that his depiction of a midterm election as a plebiscite is not, in fact, its role, nor is it how legislators treat the outcome of an election. What the election does do, however, is give the Republican Party control in both chambers of Congress, and tremendous latitude to pass an immigration reform bill of their own design come January 1 -- or, if the House Republicans choose to do so, even during the lame duck session.

Douthat follows up by describing his column as "shrill-but-accurae", which shows, I guess, that he can be half-right. After reiterating his position that the number of people who might benefit from the executive orders is larger that with similar prior actions, percentages apparently being beside the point, Douthat expresses the belief that President Obama hopes that his executive orders create "facts on the ground" that a future President won't easily be able to reverse. Wow, now that's the sort of brilliant insight that makes clear why he got his NYTimes gig. Next column, "I just looked in a mirror and realized that there's a nose on my face."

Douthat believes that the executive orders might not be reversed because a "moral obligation" could arise; it's not clear why Douthat believes that such a "moral obligation" would sway a Republican president or legislators. He argues that the "moral obligation" would result in "a form of political pressure", with its supposedly being harder for government "to retract a benefit than to grant it in the first place". Again, no explanation as to why he believes the Republicans -- their party being dedicated to rolling back Medicare, Medicaid, Social Security, and other aspects of the social safety net -- would not give it a college try. Oh, but then he gets to the real issue -- that we're talking about "a Republican establishment that’s fearful of doing anything to alienate Latinos in a presidential year".

A reasonable interpretation of that last point is that the rest is window dressing. Douthat knows that the problem is not so much an issue of executive overreach as it is an example of Republican Party dysfunction. The faction that wants to pass immigration reform can't get a bill past the party's anti-immigration factions, but if you have some form of immigration reform in place the party as a whole won't want to touch the issue for fear of alienating an important voter bloc.
[Recognition of Republican reluctance to alienate Latino voters] is, of course, part of the political calculation here … that claiming more presidential authority won’t just accomplish a basic liberal policy goal, but could also effectively widen the G.O.P.’s internal fissures on immigration, exploiting the divergence of interests between the congressional party and its would-be presidential nominees.)
It's not the President's fault that Douthat's party is dysfunctional on this issue. It's the fault of its elected representatives.

Douthat makes a rather incredible statement,
Then finally, even setting all of the foregoing aside, even allowing that this move could be theoretically reversed, pointing to the potential actions of the next president is still a very strange way to rebut complaints about executive overreach.
It's as if Douthat has never before heard of an executive order. Could he be so ignorant of the U.S. system that he's unaware of the thousands upon thousands of executive orders that have been signed by past administrations, or that there's absolutely nothing unique or special about how Congress or a future President would respond to Obama's proposed administrations as compared to any other executive order?

And this....
But that reality doesn’t really tell us much of anything about whether a particular moves claims too much power for the executive branch itself. Even in the fairly unlikely event that Chris Christie or Marco Rubio cancels an Obama amnesty, that is, the power itself will still have been claimed and exercised, the line rubbed out and crossed; the move will still exist as a precedent, a model, a case study in how a president can push the envelope when Congress doesn’t act as he deems fit.
Given his prior concessions, Douthat knows that's a specious argument. When you're talking about actions that literally track the footsteps of Ronald Reagan and George H.W. Bush, you're not talking about a new line being set. Perhaps Douthat means to indict Reagan and Bush for moving the line that Obama is treating as a fair limit? No, of course not. We're dealing with a standard Republican argument that boils down to, "Whatever may have happened under a past Republican president, it's different when a Democrat does it."

Douthat could have offered a reasoned explanation for why immigration reform is a bad idea, or why his political party is correct to oppose it. He could have offered a balanced argument -- yes, it follows precedent; yes, it follows Republican precedent; yes, it flows from Republican obstruction in Congress; but it's still a bad way to implement policy. He could have implored his party to finally pass an immigration reform bill and render the issue moot. But any of that would be far too surprising. Instead, predictably, Douthat makes what is at its heart an appeal to fear, built on the weak foundation of the slippery slope.

Me? As this whole issue could be preempted if Congress simply does its job, I call on Congress to do its job. If Congress can't do that much, even as Douthat bleats about executive overreach, presidents will be effectively forced to rely on executive orders to circumvent Congressional gridlock. That's bad for the country, but in most cases it will likely be worse for nothing to get done.