Freedom of Speech

Public figures - typically celebrities and politicians - in the United States sometimes complain about the Times v Sullivan standard for slander actions, pursuant to which they must demonstrate "actual malice" before they can recover damages for false statements printed about them. ("Actual malice" means that the statements are made despite "knowledge that statements are false or in reckless disregard of the truth".)

Other nations don't follow the same rules. In fact, few other nations offer publishers similar protections, and most offer far less. This has resulted in what is now referred to as "libel tourism", where the rich and famous seek out a nation where a work is published or distributed, but which offers few protections to publishers, and brings suit in that nation.

The United Kingdom has been the subject of such "libel tourism" in recent years and, according to the London Guardian, this has resulted in a decision by the U.K. subsidiary of Random House not to carry House of Bush, House of Saud by Craig Unger, a book about the connections between the Bush family and the Saudi royal family.

Unger's thesis is that the eagerness of US politicians to tap into Saudi money over the years may have compromised Mr Bush's determination to fight terrorism: "Never before has an American president been so closely tied to a foreign power that harbours and supports our country's mortal enemies."

How far Unger's thesis is credible is something that the US reading public will be able to decide for themselves. The book is becoming a bestseller in US election year. In Britain, however, the deputy chairman of Random House denied that the decision to suppress it was "pusillanimity or unnecessary self-censorship".

The article includes some complaints from the Deputy Chairman of Random House, criticizing the U.K.'s libel laws as "draconian" and "disgraceful", "stifling legitimate freedom of speech".

The principle behind the U.S. approach to "public figures" is that a public figure is in an excellent position to respond to any criticism, fair or unfair, and thus needs fewer protections than a similarly situated private citizen. This has certainly been borne out in practice. A "defamed" celebrity can appear on several, perhaps dozens, of talk shows and conduct similar numbers of interviews to respond to accusations. A private citizen has no similar opportunity to reply. And despite the fact that some nefarious rumors get published, celebrities seem to weather the occasional storm quite well.

Meanwhile, the U.S. public gains access to information which, when true, can be quite valuable - and when false or misleading, can nonetheless trigger important public debate and discussion. No, not the nonsense in the Enquirer, but books like Unger's. Given the societal costs and benefits, perhaps other nations should consider sending the tourists back home.

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Jobs

In today's Post, David Ignatius writes about the "jobless recovery", suggesting that things aren't as bad as they seem because unemployment is higher in many other industrialized nations. (I am not sure how the unemployment rate in Germany provides consolation to unemployed Americans, but there you go....) But what really caught my eye about his piece was this:

Americans work harder, too. That's the theme of a new study by economist Edward C. Prescott -- "Why Do Americans Work So Much More Than Europeans?" -- published last month by the National Bureau of Economic Research.

Prescott finds that Americans spend about 50 percent more time working than do the French, with roughly similar comparisons against Germans or Italians. Not only do Americans work more hours, but they produce more per hour than any major country except France, where his statistics show workers are 10 percent more productive than Americans. (Prescott's estimates are based on figures for 1993 to 1996; they only count hours worked in taxed market jobs, so they miss the underground economy.)

Twenty years before, Prescott notes, it was the Europeans who worked more. Data gathered for 1970 to 1974 show that the French and the Germans each worked an average of 5 percent more than did Americans; the British worked 27 percent more. Prescott's explanation for the change is pure "supply side." He argues that Americans work more now because tax rates are lower -- allowing them to keep more of what they earn.

Ignatius presents no analysis of that conclusion, which I think is totally "out to lunch". When I was working a "wage slave" job, I worked overtime hours not because I was impressed by the low tax rate applied to my paltry wages, but because I needed the money. During periods of self-employment, I have at times worked lots of hours to maintain my business - even though there is nobody paying "matching taxes" on my wages and the taxman's bite into my earnings seems particularly large. When I have been otherwise employed, it has been at "white collar" jobs, exempt from overtime, where I worked well above a forty hour week because... that was the expectation, if I wanted to keep the job.

I truly cannot imagine that many Americans are working unpaid overtime in their white collar jobs because they feel so rewarded by America's lower marginal tax rates. I can't imagine many people in $8-$12/hour factory jobs, or even lower-paid service industry jobs, hoping for overtime because of their marginal tax rates. Perhaps when one's income is stratospheric, the idea of keeping one step ahead of the bill collector is alien. But it seems to me that most Americans who work lots of hours do so because their employers don't give them any option, or because they truly need the money.

Is there anybody out there who puts in an extra hard day at work because of this country's tax rates? Please share.

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Conservative Fiction

Joel Mobray, who TownHall.com brags "his start with" them, idiotorializes:

As we’re learning from the 9/11 commission, if the United States hadn’t squandered its many opportunities to kill Osama bin Laden before 2001, there’s a good chance 3,000 Americans would not have perished on September 11th.

What credible or informed person would make such an assertion? This loosely knit organization, and its plan for 9/11 which was years in the making, would have toppled like dominoes had its leader been killed? To support his nonsense, Mobray adds,

Israel is finally starting to figure out that terror is a top-down plague, not some grassroots “uprising.” If only they had killed the head of Hamas and his minions years ago, many of the 377 innocent Israelis Hamas slaughtered might be alive today.

Perhaps Mobray somehow missed the fact that assasssination is not a new tool in the Israeli anti-terrorism kit - it's one they have applied for years? With former Prime Minister Ehud Barak bragging of his covert missions to assassinate Palestininans, when serving as a young commando in the IDF - most notably the 1973 assassination of three organizers of the Munich Olympic Games massacre? That being about five years before Israel made the choice to fund Hamas in the hope that it would grow and thereby weaken the secular PLO, instead of stamping it out in its formative stages? (And let's not forget that it wasn't Israel who first started the "top down" notion that executing leaders of resistance groups in the Holy Land would end their violence - Britain created that model. And Britain arrested and executed a lot of people without ending either terrorism or resistance to the Mandatory Government.)

In 1938 alone the number of Palestinians killed in action by the British was conservatively estimated at not less than one thousand, while 54 Palestinians were executed by hanging, and 2,463 Palestinians were detained. The Palestinian population at the time did not exceed one million. In spite of all these measures the Palestinian rebellion continued unabated during 1938, and several areas of the country, including the Old City of Jerusalem, fell under rebel control.

Additionally, Israel's history suggests that assassinations are often followed by a spike in violence, which in theory will precede a lull. In "big picture" terms, we're still waiting for the lull. In "real world" terms, an assassination of Bin Laden might have accelerated the 9/11 attack plan - while there is considerable evidence to demonstrate his knowledge and approval, there does not appear to be any evidence that Bin Laden was actively involved in that plot.

Mobray also displays abject ignorance over North Korea:

If we had dropped a daisy cutter on Kim Jong-Il’s North Korean palace in 1994 instead of signing a worthless nonproliferation treaty, more than two million North Koreans would be alive today—and they’d be breathing freedom. Would some civilians have died? Of course. But nowhere near two million. Not even close.

Well, we can start with the thirty-seven thousand or so troops we had stationed near the DMZ, and about half a million South Koreans in Seoul. (We couldn't have moved our thirty-seven thousand troops without triggering a "preemptive" strike by the North, because they know that we would only move them to remove them from harm's way in an anticipated battle.) North Korea probably could also have lobbed some missiles into Japan. But hey - that's still less than two million. Unless you count the North Koreans, South Koreans, and U.S. soldiers who would have been killed in the subsequent war which only somebody like Mobray would be too dumb to anticipate following such a strike.

But I guess all is fair in the Brooks/Safire school of editorializing, where all opinions are valid, and you can make stuff up as long as you do so to make a joke or if it may "resonate" as true.

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Friedman Explains Himself....

If you've been reading Thomas Friedman in the New York Times over the past few years, you've probably seen a great deal of ego, a great deal of self-justification, a great deal of after-the-fact rationalization, and a diminishing association between what he writes and claims and what seems to be happening in the real world. Today he explains,

I have a confession to make: I am the foreign affairs columnist for The New York Times and I didn't listen to one second of the 9/11 hearings and I didn't read one story in the paper about them. Not one second. Not one story.

Lord knows, it's not out of indifference to 9/11. It's because I made up my mind about that event a long time ago: It was not a failure of intelligence, it was a failure of imagination. We could have had perfect intelligence on all the key pieces of 9/11, but the fact is we lacked — for the very best of reasons — people with evil enough imaginations to put those pieces together and realize that 19 young men were going to hijack four airplanes for suicide attacks against our national symbols and kill as many innocent civilians as they could, for no stated reason at all.

It's "stuff and nonsense", of course, and a rather pathetic excuse for not bothering to examine and analyze actual facts, events, and testimonies.

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Moderate Republicans

A conservative former Member of Congress reaches out to the Bush Administration, apparently not realizing that it's not his party any more.

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Shooting the Messenger

I'll admit that I haven't read Richard Clarke's book, but I did hear him interviewed on Fresh Air, and I also heard part of his testimony to the 9/11 commission. I have also read the press briefing released by the Bush Administration in the hope of smearing him. And I am aware of the accusations that he is hopelessly partisan, wants to make money, etc., ad nauseum.

But when I hear Clarke speak, he is far more nuanced and far more balanced than his critics pretend. His worst claims about both the Bush and Clinton administrations have been previously aired by others. And his critics never, ever focus on the facts of Administration actions and policies before 9/11. As Peter R. Neumann notes in today's Times:

Consider an article in the January/February 2000 issue of Foreign Affairs magazine by Condoleezza Rice, titled "Campaign 2000 — Promoting the National Interest." Ms. Rice, spelling out the foreign policy priorities of a Bush White House, argued that after years of drift under the Clinton administration, United States foreign policy had to concentrate on the "real challenges" to American security. This included renewing "strong and intimate relationships" with allies, and focusing on "big powers, particularly Russia and China." In Ms. Rice's view, the threat of non-state terrorism was a secondary problem — in her to do list" it was under the category of "rogue regimes," to be tackled best by dealing "decisively with the threat of hostile powers."

It comes as no surprise, therefore, that there was relatively little interest in Al Qaeda when the Bush team took over. For most of 2001, the national security agenda really consisted of only two items, neither of which had anything to do with the terrorist threat of radical Islam. First, the administration increased its efforts to bring about regime change in Iraq, which was believed to be the prime source of instability in a region of great strategic importance. ... The second goal was a more competitive stance toward China.

A week before 9/11, various Republicans were advancing White House policy by declaring the immediate necessity of a multi-billion dollar "missile defense" system, while key Democrats, perhaps most notably Joe Biden, were asserting that the much greater risk was of a terrorist attack.

To date, the only hard factual assertion the Bush Administration challenged has been Clarke's claim that he met with the President on September 12. After insisting time and time again that he was lying about that meeting, the White House has revised its story: "We are not denying such a meeting took place. It probably did.". Oh yes - and after Dick Cheney insisted that Clarke didn't know what he was talking about because he was "out of the loop", Condoleezza Rice had to set the record straight.

The most concerted attack on Clarke is now that he supposedly (may have) contradicted himself - with the accusation coming from Bill Frist, who later admitted that he didn't even know if there were contradictions at all, let alone any of a serious nature - but his critics don't even bother to call on the Bush Administration to disclose the facts which would definitively establish if Clarke is right or wrong. Dennis Hastert claims that some members of the 9/11 commission already have Clarke's former testimony. If that is true, obviously nobody on the 9/11 commission will be misled by any discrepancies, real or imagined. And we have the latest idiotorial on the subject from David Brooks, where Clarke is condemned because he praised the Bush Administration for taking certain anti-terrorist actions - which, apparently, means that he can't criticize any other acts or policies which he might regard as failures or shortcomings - and because Brooks thinks he is more critical of the Bush Administration's failures than of the Clinton Administration's, although Brooks does not dispute that Clarke documents the failures of both administrations. That's it, folks - that's the indictment.

And yes - that means that while the prior testimony was "too sensitive" to even disclose to the full committee before Clarke's testimony, it is suddenly not worthy of such classification when the Bush Administration decides it may help with their very public smear campaign against Clarke. National security, it seems, takes a back seat to the Bush Administration's smear campaigns. (In fairness, there is an alternative hypothesis - the Bush Administration has maintained as classified many documents highly relevant to the commission's investigation in order to conceal the true record, despite there being no present need to maintain them as classified documents, and thus feels no national security concern about releasing various parts of that record for public relations purposes.)

So it appears that again we are offered by the Bush Administration selected snippets of selected documents, the bulk of which remain classified, meant to distract us from the facts. And Condoleezza Rice will testify... well, not really testify, but she will answer certain questions... in private... as long as she doesn't have to swear to tell the truth. And they dare suggest that Clarke is the deceptive one?

"I don't know necessarily what the difference is" between a private interview and public testimony, presidential spokesman Scott McClellan said. "She's going to tell it exactly how it happened," he said.

Well, gee, Scott.... Perhaps you are that stupid, but the rest of us can tell the difference between a private interview and sworn, public testimony.

The worst offense to some Administration insiders, apparently, is that Clarke had the courage to do what they have refused to do for more than two years - he apologized. The nerve of the man.

I know - everybody and his brother's talking about this. But it was bugging me, so I vented.

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Well, how about that....

As it turns out, one of the reasons David Brooks comes up with broad generalizations which support his various arguments is... ... he makes them up. But he thinks that's okay:

"What I try to do is describe the character of places, and hopefully things will ring true to people," Brooks explained. "In most cases, I think the way I describe it does ring true, and in some places it doesn't ring true. If you were describing a person, you would try to grasp the essential character and in some way capture them in a few words. And if you do it as a joke, there's a pang of recognition."

So it's okay to get your facts wrong on the New York Times editorial page if it "rings true" or if it is a "joke".

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The Pledge

I sometimes find it difficult to believe how many absurd arguments are being advanced about the Pledge of Allegiance.

Today, the Washington Post argues that "the court swept aside repeated -- albeit nonbinding -- statements by justices that the reference to God in the pledge does not rise to the level of a church-state problem. " Well, I haven't seen a list of those statements, or even of the Justices who supposedly made the statements, but does the Post really want to go there? I wonder how many Justices made statements during the period between Plessy v Ferguson and Brown v Board of Education... and Plessy that "separate but equal" did not rise to the level of a constitutional problem? How many justices expressed similar opinions before "separate but equal" was upheld in Plessy. The Supreme Court does not, and has never, judged its cases on the basis of the informal statements of justices over a period of time, be it days, years, or decades. If the Washington Post's editorial board doesn't understand this, they should consider hiring somebody competent to write and review their material.

Another argument which I find rather strained is the notion that the passage of a few decades of itself will transform potentially unconstitutional language into a secularized custom or tradition, thus removing any necessity of First Amendment analysis. Certainly there are traditions which have been treated in that manner - the prayers at the opening of Congress, or even the Supreme Court's famous "God Save this Honorable Court" - but we're talking about a much longer history and settings which are not coercive. It is more than reasonable for the Supreme Court to examine not only questions of "tradition", but also the circumstances under which Congress ordered the pledge changed, and whether they would permit a similar Congressional Resolution to stand if such a change were ordered today. It would be appropriate to look at the acts and statements of present politicians, including the President, when evaluating if the contentious words should be viewed as state-sponsored prayer - I think it is difficult to look at the statements of President Bush on this issue without recognizing that he favors the words "under God" for the same reasons as did Eisenhower. If that is in fact the case, then it would seem that the passage of years haven't served to effect any transformation.

Finally, I find absurd the argument, largely advanced by the right, that the Supreme Court should rule in a particular way because the majority of Americans want it to rule that way. That argument has historically been ridiculed by much of the right - and rightly so (no pun intended) - as judicial activism and "legislation from the bench". The Supreme Court is not supposed to be a barometer of public opinion. It is supposed to be issuing its decisions based upon the laws and Constitution of the United States. No matter how it rules, some people will detest its ruling - but its job is nonetheless to issue a sound, well-reasoned opinion that ideally will stand the test of history.

(By the way, I am sure that there are some equally absurd arguments being proposed by opponents of the present Pledge, but I haven't seen them covered in or repeated by the media. If you know of any, please share them in the comments and I'll give them equal time.)

Part of the problem is that the Supreme Court has, to date, failed to enunciate an adequate test for the boundaries the Establishment Clause. Granted, that's not an easy task - but the Court can't even seem to settle upon a rule, let alone a rule that doesn't require numerous exceptions. Perhaps the Court will take this opportunity to clarify the law. But I somehow doubt it.

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Religious and Secular Education

Today, Dennis Prager tells us that everybody in America is brainwashed. First, he argues,

Ask some non-religious liberal friends how they would describe a person who attended only fundamentalist Christian or ultra-Orthodox Jewish schools from preschool through graduate school. "Brainwashed" and "closed-minded" would be their most likely answers, and they would often be right. Most people assume that any person who is exposed to only one way of looking at the world for all of his or her life can hardly be regarded as open-minded.

So even though he's talking about evil "non-religious liberal" people", he concedes that in this context "they would often be right". He then proceeds to argue that the same holds true for people who attend only secular schools:

If a person is to be considered brainwashed for having only received a religious education, a person who has received only a secular or liberal (as in politically liberal) education should be regarded identically.

Well, no. Because a good secular education doesn't carry any particular ideology, and is consistent with the holding of religious beliefs. Unquestionably, any course of studies (religious or secular) will contain some amount of bias, but of itself that's not "brainwashing". The purpose of a sectarian education is to advance a particular religion, in most cases in addition to (and in some cases instead of) providing a broader education in reading, writing, and 'rithmatic. A particular religion and religious agenda will be advanced. In the secular world, classes may be taught by people with a wide range of political and religious beliefs, and in many cases those beliefs will color their teaching, and the student is exposed to a much broader range of ideas. Religious instruction intends a bias toward religious matters, and toward a particular religion, and it is considered to be a positive result if the preferred biases take root in the student body. Secular education has no similar agenda. While any course of education will result in biases, graduates of secular institutions have opinions across the political and religious spectrum - and secular institutions traditionally regard that as a good thing.

Further, as is often the case, children who attend secular schools often also attend religious instruction outside of school hours. Sunday School and Hebrew School, for example, are common. There is no equivalent for children in religious schools - they don't attend Saturday or Sunday classes which teach the science of evolution, for example, if their particular religion asserts a literal interpretation of Genesis. Prager continues,

In fact, when secular people and those on the Left deny this, it actually illustrates that they probably have been brainwashed. The secular/Left immersion they underwent has been so effective that it has rendered them incapable of realizing that they have been so immersed.

Again, Prager misses the boat. He asks that you pose the question to a group of people with a particular mindset, anticipates the answer based upon that mindset, and makes the circular argument that this somehow proves his larger point. Yet even Prager knows that if he were to pose that same question to a person who had attended only secular schools, but who was of a religious or neo-conservative mindset, the answer would be very different. Find somebody along the lines of Ann Coulter, and you might even hear the person brag about how the public schools "tried" to brainwash him, but how he overcame the insidious tendrils of secular humanism.

Without any basis for his assertion, Prager next asserts that most secular people have had no exposure to religion or religious subjects, while most religious people have had exposure to secular influences. Meanwhile, Prager tells us, religious schools usually teach subjects like reading and math - sometimes taught by secular teachers - and many religious people watch network television and Hollywood movies, presumably filling their lives with secular values. But even assuming his first point is correct (and in my experience, it is not), the type of "secular" exposure he is describing is far from a secular counterpoint to religious teachings. It is in no way analogous to formal education, and does not involve the type of power structure, authority and expectations imposed upon students by any given school system (secular or religious). Obviously Prager would not argue that somebody who watches The Simpsons is receiving a religious education - despite the strong family and religious values advanced by that show. But he would argue that it provides an education in secular values? Oh, the hypocrisy.

Prager continues with his unsupported (and absurd) assertions:

The same holds true for liberals and conservatives. Virtually every conservative reads a liberal newspaper, watches liberal newscasts, reads liberal magazines, and has been taught in liberal schools by liberal professors. Few liberals have read a conservative newspaper (there are almost none anyway), read a conservative magazine, studied in conservative schools or been taught by a conservative professor (of whom there are also almost none).

While I could point Prager to my own personal experiences, anecdotal evidence, or to surveys of media preferences or viewer misconceptions, but what would be the point? If it weren't previously obvious that he is "making stuff up as he goes along", it certainly is now.

Prager concludes,

Just as many liberals and secularists can only imagine a religious person being brainwashed, not a liberal or a secular one, they likewise can only imagine religious extremism, never secular extremism. One can easily be too religious, but never too secular. Yet, we have far more secular extremism than religious extremism in our society.

The ACLU is one such example. The organization recently threatened to sue the National Park Service over two little plaques at the Grand Canyon that had Psalms written on them. That most Americans do not consider a lawsuit over something so trivial a manifestation of extremism only proves how effective the secular brainwash is.

If Prager were informed (or if he is informed and chose to be honest), he would acknowledge that throughout its history the ACLU has defended our rights and freedoms at their margins - taking up the small cases and the unpopular causes, to stop encroachments on our civil rights and liberties before they affect the masses. If Prager were honest, he would have presented at least one more example: The legal activities of the NRA. You know, those "secular" NRA types who will litigate against even "tiny" encroachments on the right to keep and bear arms. Also, if Prager were honest, he would acknowledge what David Brooks described only yesterday - the role of the devoutly religious in advancing the fight for civil rights and freedoms. Or he might have acknowledged that "conservatives", including his beloved "conservative media", have been known to bring absurdly frivolous lawsuits. At least the ACLU's suit has merit. And, with all due respect to Prager's defense of all things Biblical, perhaps he should take a deep breath and realize that although the Constitution is a secular document, there is an enormous value to society in defending and upholding its precepts.

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Biblical Wisdom

In Today's New York Times, David Brooks suggests that we should applaud the insertion of "under God" into the Pledge of Allegiance because of the manner in which religion has enriched our nation. (Never mind that the socialist minister who wrote the pledge didn't add the words "Under God", and and objected to changes to his work: ""He thought (the changes) spoiled the poetry of it," John Bellamy [grandson of the author] said. "He was a pretty stern guy. Everybody has some sense of humor, but I don't think he had much."")

Brooks' argument boils down to this: He read a book, "A Stone of Hope", which argues that the civil rights movement would not have succeeded as a secular movement, agreed with its thesis, and thus feels free to apply the same thesis to every single event and occurrence in world history.

If you believe that the separation of church and state means that people should not bring their religious values into politics, then, if Chappell is right, you have to say goodbye to the civil rights movement. It would not have succeeded as a secular force.

But the more interesting phenomenon limned in Chappell's book is this: King had a more accurate view of political realities than his more secular liberal allies because he could draw on biblical wisdom about human nature. Religion didn't just make civil rights leaders stronger — it made them smarter.

Here, of course, we encounter a major flaw in Brooks' analysis. The Bible is not the only source of analysis of human nature, and the depiction of human nature many derive from the Bible is far from complete and may well prove incorrect.

While, as Brooks argues, the Bible's stories can be read even by secular individuals as allegories about human nature, the lessons to be drawn are often subject to debate - yet religious adherents of a particular viewpoint are often not interested in that debate, instead asserting a particular interpretation as "correct" and claiming that all other interpretations are wrong. For no small part of this nation's history, "God-fearing, church-going Christians" were slave-owners, and were assured by their ministers not only that slavery was consistent with the Bible, but that it was ordained by the Bible. Many members of the Ku Klux Klan were also devoutly religious - even as they terrorized and lynched their darker skinned neighbors. Any analysis of the role of religion in the civil rights movement should also consider the role of religion as a counter-force - the role of religion in the perpetuation of slavery and in opposition to the civil rights movement.

At some point it should become clear that while the civil rights movement (and women's suffrage movement - which again had to overcome religious authorities who asserted that the Bible dictated that women were to be in a servient role) benefited enormously from its association with devoutly religious individuals, and many significant players in the movement got through some very dark times by relying upon their faith, the post hoc analysis of the role of religioin offered by Brooks ignores the fact that the religous values at issue were far from universal.

Brooks then proceeds with an argument that is simply absurd: that "biblical wisdom may offer something that secular thinking does not - not pat answers, but a way to think about things." Perhaps when in college Brooks avoided courses on philosophy and even political theory on the basis that they weren't sufficiently practical. But it is difficult for me to imagine how any graduate of even a mediocre college could make such an assertion with a straight face. Brooks attempts to explain his bizarre assertion:

For example, it's been painful to watch thoroughly secularized Europeans try to grapple with Al Qaeda. The bombers declare, "You want life, and we want death"- a (fanatical) religious statement par excellence. But thoroughly secularized listeners lack the mental equipment to even begin to understand that statement. They struggle desperately to convert Al Qaeda into a political phenomenon: the bombers must be expressing some grievance. This is the path to permanent bewilderment.

Okay.... so now the problem is that religious "fanatics" adhere to their mindset in defiance of all reason, and are not willing to entertain ideas or concepts that conflict with their worldview? And if that is the case, is it not inconsistent with his prior argument? The adherents of religion at issue don't exactly stand for progress on the civil rights front, after all. And what is his solution - a war of religions, where one set of religious ideologues attempts to extirpate another, as the sole solution dictated by their "biblical" understanding of human nature? Perhaps he wants to schedule joint Bible study sessions between U.S. political leaders and members of Al Qaeda? (So I don't have to explain it later in the comments, that last question was sarcasm.)

Brooks also argues that Europeans have a monolithic mindset, have no understanding of religion, and thus cannot grasp that you cannot reason with religious "fanatics" (his word). If I were inclined to again be sarcastic, I would point out that some of the Europeans at issue view the likes of GW "Jesus is my favorite political philosopher" / "God wants me to run for President" Bush and John Ashcroft ("Islam is a religion in which God requires you to send your son to die for him. Christianity is a faith in which God sends his son to die for you.") as religious fanatics - so, by Brooks analysis, they can justifiably conclude that there's no point in trying to reason with them? I might also point out that one particular European, um, secularist? takes strong issue with the Bush Administration's approach. (But what could a European possibly know about the Bible?) But, more seriously, what is he suggesting that the Europeans - who for the most part have vastly more experience than the U.S. in dealing with extremists and terrorism - should do? Surely not "accept the truth of fundamentalist Islam" - but then we're back to the fact that there's more than one way to interpret the Bible.

And we must also confront the fact that if strong religious views transform Muslims into irrational fanatics, as Brooks clearly suggests, perhaps Brooks is contradicting himself in suggesting that religion holds the greater answers to human nature and the problems of society.

Brooks closes with the suggestion,

The lesson I draw from all this is that prayer should not be permitted in public schools, but maybe theology should be mandatory. Students should be introduced to the prophets, to the Old and New Testaments, to the Koran, to a few of the commentators who argue about these texts.

From this perspective, what gets recited in the pledge is the least important issue before us. Understanding what the phrase "one nation under God" might mean — that's the important thing. That's not proselytizing; it's citizenship.

First, obviously, Brooks is either blithely ignorant or chooses to ignore why the type of "comparative religions" class he proposes is not more widely available in United States public schools. Simply put, there are many areas in this Country where large numbers of people cannot accept the secular notion that religion - and more specifically, Christianity - can be an academic subject, with "competing" religions treated alongside the one they prefer, as if the others have merit. (And some school districts use "Bible as Literature"-type classes as a subterfuge for proselytization.)

Brooks' final words don't really make sense in the context of his larger argument. If he is arguing that the words "under God" should be offered not as religious indoctrination but as a history lesson, why should they be recited in the Pledge as opposed to being taught in a "history of religions" class? Besides - who does he think has a clearer notion (right or wrong) of what it means to be "one nation under God" - the typical U.S. Christian, or one of the Islamic "fanatics" he previously mentioned?

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... But I Know It When I See It ...

The London Guardian today asks, "Why is the most popular artist in Britain still shunned by its publicly funded galleries?" Perhaps, then, a joint exhibit with the works of one of America's most popular artists?

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And there you go....

The right-wing reactionaries who accuse Clinton of ignoring Al Qaeda and who attempt to blame his administration for 9/11 should perhaps read what Condoleezza Rice has to say:

The al Qaeda terrorist network posed a threat to the United States for almost a decade before the attacks of Sept. 11, 2001. Throughout that period -- during the eight years of the Clinton administration and the first eight months of the Bush administration prior to Sept. 11 -- the U.S. government worked hard to counter the al Qaeda threat.

During the transition, President-elect Bush's national security team was briefed on the Clinton administration's efforts to deal with al Qaeda. The seriousness of the threat was well understood by the president and his national security principals.

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What Took Them So Long?

The Washington Post editorializes about Bush and Kerry,

There are real differences here. As Mr. Cheney said, Americans may have the clearest and most meaningful choice on national security in any presidential election during the last 20 years. But that choice should be about how the United States can win the crucial battles now underway -- not whether they should be fought.

It took a year for the Washington Post to figure that out?

Yes, folks, it is important to discuss potential military actions before they occur - and important lessons can be drawn from the way we entered Iraq. It is important to discuss strategies toward continuing military actions - and important lessons can be learned from the Bush Administration's failure to heed advice that departed from what it wanted to hear, to admit its (many) mistakes, or to be candid with the American people about its present strategy for either the Iraq war or the "war on terror". But you can't turn back time.

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Scalia's "Conflict"

In a small Michigan town, a local businessman brought a small claims suit against a man who had failed to pay for services rendered. The judge found for the businessman, then observed in regard to the defendant, "Do you have your checkbook with you? I have a feeling that if I let you walk out of this courtroom, the plaintiff is going to have a hard time getting you to pay this judgment." The defendant indicated that he had his checkbook. The judge instructed him to write a check satisfying his debt to the plaintiff. Then, as the parties were leaving the courtroom, the judge called out to the Plaintiff, "Hey Joe - do you want to go fishing this weekend?"

But, I guess that's okay.

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The War on Terror

While I have heard it mentioned in passing, the news media seems to be giving almost no attention to the fact that the Madrid bombings occurred below the radar screen of the world's intelligence agencies. Nobody seems to have picked up even a hint of the plan before it was implemented.

If Bush is going to claim any degree of forward momentum in the "war on terror", it seems to me that his administration should explain this (latest) colossal intelligence failure. If the biggest "advance" in "homeland security" since 9/11 is that the terrorists have learned to plan and implement attacks of this magnitude without detection, we're in real trouble.

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The Fog Of War

Back when I was in law school, a classmate challenged a professor about a long-standing rule of law, suggesting that it was bad policy. The professor wrote the number "50" on the blackboard, and commented, "When fifty states, fifty jurisdictions...", then added a "1" below the "50", "and the District of Columbia", paused momentarily, added another "1", "and the federal courts disagree with you, you have to ask yourself if the problem is with their reasoning or with yours." (The professor took some comeuppance in good graces a couple of weeks later, when he proposed his own rather unique legal theory and the classmate asked, "How many jurisdictions agree with you on that, Professor?")

Last night, I saw The Fog of War, which outlines various lessons Robert S. McNamara learned through his life, particularly in relation to his wartime experiences and mistakes. The film was perhaps a bit soft on McNamara, permitting him to cast his past pretty much as he saw fit, and permitting him to avoid some tough questions or areas of inquiry. However, I was left with the impression of a very bright and capable man who has now spent decades analyzing mistakes by his nation - mistakes in which he played a central role - and has drawn a set of conclusions which should be heeded by world leaders. I can't imagine Rumsfeld sitting through this film as, despite the comparisons between his and McNamara's management styles, Rumsfeld does not appear to have the type of mind that is capable of introspection and of learning from history. But I wish he would at least try.

McNamara has recently expressed dissatisfaction with the Bush Administration's approach to Iraq:

"We're misusing our influence," he said in a staccato voice that had lost none of its rapid-fire engagement. "It's just wrong what we're doing. It's morally wrong, it's politically wrong, it's economically wrong."

While he did not want to talk on the record about specific military decisions made Mr. Rumsfeld, he said the United States is fighting a war that he believes is totally unnecessary and has managed to destroy important relationships with potential allies. "There have been times in the last year when I was just utterly disgusted by our position, the United States' position vis-à-vis the other nations of the world."

Having viewed the film, salient rules that the Bush Administration is breaking include:

Failure To Listen To Our Allies - McNamara, like my law professor, believes that we need to be cautious when our allies disagree with our actions, as they did in Vietnam. He argues that if we cannot convince nations with similar values to support our cause, we need to take a step back and examine our own reasoning. The Bush Administration has proudly taken the opposite approach - expressing open contempt for our long-term allies when they disagree with it, and insisting upon unilateral action even where it might be possible to achieve multilateral action with a bit more time and diplomacy. When you insist upon going in a direction your allies view as foolish, you may end up holding the bag. We need our allies' support for the post-war reconstruction and democratization of Iraq, yet Bush's tactics have frustrated our efforts to bring our allies on board. (And we're now in danger of seeing the withdrawal of nations from our so-called "coalition of the willing".) In McNamara's words:

And if we can't persuade other nations with comparable values and comparable interests of the merit of our course, we should reconsider the course, and very likely change it. And if we'd followed that rule, we wouldn't have been in Vietnam, because there wasn't one single major ally, not France or Britain or Germany or Japan, that agreed with our course or stood beside us there. And we wouldn't be in Iraq.

Failure to Empathize with the Enemy - McNamara recounted how the Vietnamese believed their war against the U.S. was a war to end a century of colonialization and, while dismissing that belief as absurd from our standpoint, observes that the Vietnamese perceptions played an enormous role in their willingness to fight and die in staggering numbers. We believed that we were fighting for their freedom, yet they believed we were fighting for their enslavement to a brutal colonial master. We believed we were blocking the influence of communism, particularly through Vietnam's neighbor, China. They had been fighting China for, in the words of one former leader, 1,000 years, and had no intention of living under China's influence. Similar misconceptions appear to exist between what we intend through our occupation of Iraq, and what many of the locals (and people in neighboring nations) believe we intend - and absent our breaking through the misconceptions, we will continue to fight a difficult and often uphill battle.

Our judgments of friend and foe alike reflected our profound ignorance of the history, culture, and politics of the people in the area, and the personalities and habits of their leaders.

The film also recounted Lyndon Johnson's position on appeasement versus war - and his observation that (whenever possible) we didn't want either. Isn't that still true?

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The Carrot And The Stick

Today's Times editorializes that the Bush Administration must do more than participate in regional conferences with North Korea, where nothing seems to be achieved, and must outline what it will offer to North Korea if that nation abandons its nuclear weapons program. A similar approach seems to have worked with Libya, although Libya's weapons program was nowhere near as advanced as North Korea's, and Libya seemed far more eager to reintegrate into the world economy.

There is some truth to what the editorial suggests - catching more flies with sugar, and all that. But isn't that more or less what Clinton attempted - securing promises from North Korea that it would freeze its nuclear weapons program in exchange for international aid? And what was the result again? Oh yes - North Korea accepted the aid, told its people that it was tribute paid by a cowardly and decadent West, and continued its weapons programs.

A diplomatic solution would be wonderful - but such solutions require some level of integrity on both sides. And there is little evidence of the necessary integrity on the part of North Korea.

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Big Government, Big Budget, Big Deficit Republicans....

Ask for fiscal discipline and Republican backbones melt like butter.

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Social Promotion in New York Schools

With both an article and an editorial on the subject, lamenting Mayor Bloomberg's effort to end social promotion in the city's public schools, the New York Times takes the position that social promotion should be continued. Perhaps as a result, it is only in the last paragraph of the article on the subject that the following truism is raised:

Mr. Levine, of Teachers College, said both social promotion and holding children back were mistakes. "There is no win here," he said. "If you don't promote the kid, what happens is higher chance of drop-out, and also they're going to get the same instruction they got last time. If you promote them, you have a kid who hasn't mastered the previous material who is now being asked to master more advanced material."

It's easy to complain that social promotion is "necessary" to avoid social stigma and increased drop-out rates, but the New York Times fails to editorialize in favor of the costly intervention necessary to try to bring the failing kids up to grade. Pretending that there is no cost to promoting kids who are likely to end up underperforming throughout their public school careers, is not a solution - it's a variant of the same problem.

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Such a Lonely Word....

What do you do when you have a President who is scared of press conferences and reporters? Apparently, you hire actors, stage some fake press events, and release the video as if it is real.

TV news reports in America that showed President George Bush getting a standing ovation from potential voters have been exposed as fake, it has emerged.

The US government admitted it paid actors to pose as journalists in video news releases sent to TV stations intending to convey support for new laws about health benefits.

The doublespeak term for this type of fakery, apparently, is "Video News Release".

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Bush Administration Silliness

The Bush Administration knows quite well that there are foreign leaders - many foreign leaders, including leaders of long-time allies - who would love to see him go down in flames in the upcoming election. They also know that, not only in the name of good relations but also in the interest of not inspiring trademark Bush Administration retaliation, those leaders are unlikely to publicly endorse Kerry. Yet when Kerry speaks these facts, they try to depict him as a liar?

Here's a suggestion - Bush should simply demand that all foreign leaders publicly endorse him, and see who (other than Tony Blair) takes him up on the offer.

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Homeland Insecurity

The subject of the Madrid bombings has been discussed at considerable length, both through the traditional news media and throughout the so-called blogosphere, but with so many unknowns the analysis hasn't seemed particularly helpful. The central issue for me is less that of whether Al Qaeda was behind the attack, and more a matter of how we prevent attacks of this type and magnitude from occurring. Unfortunately, here and in Spain, the answer so far has been, "We don't try very hard." Here, we step up security at airports, divert most anti-terrorist "homland security" money to rural states where attacks are far less likely, switch the "alert level" back and forth between orange and yellow, and hope that nothing will happen.

When an attack like this happens, some right-wing types invariably announce that it is our own fault for not living in constant fear, and recognizing that we are in a state of perpetual war (and don't forget to reelect George Bush). A more sane response is that, while terrorist incidents are frightening, the terrorists only "win" if we accede to being terrorized. The rationale of terrorism is that, when up against an enemy that is too large or formidable for traditional attack, you commit acts which create fear in the public and attempt to coerce concessions through that public fear. Granted, that particular set of right-wingers aren't arguing that we give concessions to terrorists - they are only asking that we give up our civil liberties (here and in the U.K.) - but in the sense that they ask us to give in to our fear they are asking us to let the terrorists "win". When they express contempt for those who refuse to be terrorized, they are simply revealing their own cluelessness (or, in some cases, duplicity).

It seems like the Madrid bombing is waking Europe up to the fact that a lot more must be done to prevent additional terrorist attacks. Politicians, surely, are also taking note of the fact that the Spanish people, apparently feeling betrayed and perhaps deceived by their Prime Minister in his support for Bush and the war in Iraq, have just implemented a regime change of their own, handing the socialist party an electoral victory. This may be followed by Spain's withdrawal from Iraq.

A question nobody is asking, perhaps because it seems tired, is why the Bush Administration took time out from the "war on terror" to invade Iraq. Oh, sure, there are the stock "answers" which are every bit as tired as the question - leaving aside the deception about Iraq's ties with Al Qaeda and its apocryphal WMD stockpiles, there's the idea that would-be terrorists will be drawn to Iraq instead of attacking western cities, that we will experience cascading democratization and liberalization throughout a corrupt and dictatorial Middle East, that terrorist states will be deterred by seeing the power of the U.S. military... are there others? But none of those answers really speak to the question, and perhaps the media can be faulted for letting the question become so tired without pointing out the fact that it has yet to actually be answered.

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We hold these truths to be self-evident....

Using a number of high-profile issues, Dick Meyer presents an analysis of the Bush Administration's veracity:

What's different is that the Bush administration stands accused of politicizing and bullying processes of the government that are designed to be above the fray of partisanship and ideology, such as intelligence gathering and science policy-making. Put bluntly: they don't much care about facts, science and truth.

He concludes,

Certain functions of government, much like the judicial system, are supposed to be insulated to as much as possible from partisanship and politics. This administration seems to have a pervasive and profound scorn for that idea. In its place, it has an abiding confidence in its own righteousness. And in this, President Bush leads by example.

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Refusing Major Surgery = Murder?

As you may have heard, a woman, reportedly mentally ill, has been charged with murder after declining a caesarean section delivery of the twins she was carrying. This is apparently premised upon a warning she received, that one or both twins could suffer brain injury or death if she declined the surgery.

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The Prattle of the Coulter

For some reason, pretty much every columnist these days feels obligated to write about Mel Gibson's "The Passion of the Christ". Ann Coulter just added her two cents - although I am probably overvaluing her contribution.

William Safire, the New York Times' in-house "conservative" – who endorsed Bill Clinton in 1992, like so many conservatives – was sure Mel Gibson's movie "The Passion of the Christ" would incite anti-Semitic violence. Thus far, the pogroms have failed to materialize.

Did you get that, folks? You were kidding yourself all these years if you thought Bill Safire was a conservative.

Coulter's focus seems to be on anti-Semitism - denying that Gibson's film could inflame anti-Semitic attitudes - but her editorial suggests to me something very different. It suggests to me that, beneath a thinly stretched surface of pseudo-Christianity, Ann Coulter has a very low opinion of Judaism. Beyond her comments suggesting Safire doesn't 'get it' (apparently because he's not Christian), she continues,

But again I ask: Does anyone at the Times have the vaguest notion what Christianity is?

How can I interpret that, as a comment about an organization she knows has a heavy Jewish editorial presence, particularly on the heels of her attack on Bill Safire?

Coulter concludes by reaffirming that she hates all Muslims. But I am left with the uneasy feeling that her opinions toward Jews aren't much different.

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Outsourcing Jobs

Thomas Friedman has recently taken up the issue of the loss of American white collar jobs to overseas outsourcing. In his first editorial, through a series of questionable assertions, he assures us that American ingenuity will miraculously make up for any job loss. Today, he tells us that overseas outsourcing involves "good news and bad news":

The good news is that a unique techno-cultural-economic perfect storm came together in the early 1990's to make India a formidable competitor and partner for certain U.S. jobs — and there are not a lot of other Indias out there. The bad news, from a competition point of view, is that there are 555 million Indians under the age of 25, and a lot of them want a piece of "The Great Indian Dream," which is a lot like the American version.

If you're an American worker, I'm not sure how that qualifies as good news.

Don't get me wrong - I'm all for economic development, and am impressed by India's effort to provide opportunity for its people and to lift itself out of horrific poverty. I am also of the opinion that, were the U.S. economy generating jobs, this would not be a significant concern for U.S. workers - we are most concerned about "those people" taking "our jobs", whether the jobs are performed by immigrants or are performed in overseas factories and companies, when the unemployment picture is dire. If people are happy and secure in their employment, they generally aren't concerned that other people, also, are getting good jobs.

As he started with a reference to historic concerns about the auto industry, I had thought that Friedman was going to touch on that fact. But he didn't - perhaps because, despite his confidence in American ingenuity, he can't answer the tough questions people are asking. How will American workers obtain good, secure employment, such that they can count on being paid? How will they obtain benefits such that they can provide health care for their families? How will they save for their kids' college tuition? We aren't even creating enough jobs to keep up with the expanding workforce - how will their kids get jobs when they graduate from college?

No answers, of course, from Friedman's corner.

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Safire Goes "Paleo"

Sometimes Safire betrays the fact that he used to actually be a conservative, as opposed to whatever he is today, as he did with his editorial on privacy:

Terror's threat is real. But as we grudgingly grant government more leeway to guard our lives, we must demand that our protectors be especially careful to safeguard our rights. Officials all too often fail to see both sides of their jobs.

As reported last week by Robert Pear and Eric Lichtblau in The Times, the Justice Department said that medical patients "no longer possess a reasonable expectation that their histories will remain completely confidential."

This abhorrent philosophy underlies a counterattack launched by Justice at doctors who went to court to challenge the federal Partial Birth Abortion Ban Act. Most Americans, including many who are pro-choice, favor that legislation. I think the doctors are mistaken in their constitutional objection. But in defending the law, Attorney General John Ashcroft went overboard.

Meanwhile, the Boston Globe suggests that the Bush Administration's encroachments on our rights are much greater than most recognize.

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Chastity

Rich Lowry today tells us of the glories of chastity, and suggests (based upon statistics which don't really support his thesis) that there is no inevitability to teenage sexual activity.

A couple of observations....

First, "conservatives" like Mr. Lowry never seem to speak from first-hand experience. That is, despite their ostensibly perfect morals and extraordinary self-control, they never assert that they, themselves, were abstinent as teens - let alone that they were abstinent until marriage. In most cases, they were not.

Second, "conservatives" have never had a problem with teen sexuality and teen pregnancy - within the so-called "confines" of marriage. History tells us that this debate is about social control, not about age.

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Osama Captured?

Well, not yet. But, "as a service to readers and nascent conspiracy theorists", the Guardian has published a notice of his capture "several months ahead of schedule".


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Same Sex Schools

The Bush Administration is now in favor of same sex schools. I wonder to what extent this would affect students' dating preferences....

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The "War"

It is interesting to read columnists like George Will suggest that it is somehow a failing of the American public, or a testament to the great victories of Bush, that we don't perceive ourselves as first and foremost a nation "at war".

In February the president said he is running as a "war president." But the country decreasingly feels at war. That is a tribute to the president's defense of America since Sept. 11, 2001 -- perhaps the most successful 30 months of national security policy in American history. But it also is a political problem for the president. In December, McInturff found that among voter concerns, "affordable health care" ranked as high as "terrorism and national security" and well behind "the economy and jobs."

As I recall, Bush's advice to the people of America on how they could support the war effort boiled down to, "Pretend nothing is different and go shopping". Somehow, I find a stark contrast between this and what was suggested during prior periods of war, particularly those periods when the American people felt that they had great war Presidents.

Let's be honest for a second - the only reason Bush wants to be a "war president", and why pundits like Will want him to be treated as a "war president", is that various public opinion polls suggest that the American public trusts Republicans more than Democrats with matters of national security. If the polls said something different, Bush might be talking about what a great "peace president" he is - and his nascent "Pax Americana".

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Well How About That....

Nicholas Kristof has finally noticed that corporate executives are typically paid in gross disproportion to the work they perform, without regard to the quality of their management or the effect on stock value, and without regard for the market value of their labor.

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Spell-Checking Only Goes So Far....

The New York Times describes a federal magistrate's displeasure with a lawyer's pleadings, a sample of which follows:

Had the defendants not tired to paper plaintiff's counsel to death, some type would not have occurred. Furthermore, there have been omissions by the defendants, thus they should not case stones.

The magistrate reduced the lawyer's request for fees on the basis of the errors.

In one letter, Mr. Puricelli had given the magistrate's first name as Jacon, not Jacob.

"I appreciate the elevation to what sounds like a character in `The Lord of the Rings,' " Magistrate Hart wrote, "but, alas, I am only a judge."

Almost simultaneously, according to the same article, a federal appeals judge scolded a lawyer for his composition skills:

"While I appreciate a zealous advocate as much as anyone, such techniques, which really amount to a written form of shouting, are simply inappropriate in an appellate brief," Judge Orme continued. "It is counterproductive for counsel to litter his brief with burdensome material such as "WRONG! WRONG ANALYSIS! WRONG RESULT! WRONG! WRONG! WRONG!"

But at $150 or more per hour, what can you really expect.... (Seriously, though, some of us lawyer types write pretty well.)

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Autopsies

The New York Times today discusses the importance of autopsies at hospitals, suggesting that they can help us better understand the human body and its diseases. The editorial notes that one of the reasons for the diminished number of autopsies is fear of malpractice litigation - when an autopsy reveals clear medical error, as historically has often been the case, there is a potential that the autopsy results will inspire or strengthen a malpractice action against the hospital or its doctors.

With all due respect to fear of litigation, please note that the concern is not about frivolous litigation but is about well-founded litigation premised upon the unbiased findings of a medical examiner. I am certainly not one to argue that autopsies should be performed to help malpractice lawyers, but I will argue that they should not be avoided in order to protect doctors and hospitals from their culpable errors. If the medical professions did a better job of policing themselves, and of keeping their less competent peers from treating patients, we would probably see an overall decrease in the cost of malpractice litigation and the cost of malpractice insurance. Hiding from the facts permits the medical professions to avoid some unpleasant internal confrontations, but it can only serve to hurt the patient.

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Drug Policy

Imagine a world where the government had complete control over all channels into the country - air, land, water, everything. Where all incoming and outgoing mail is monitored. Where computer access, and moreso Internet access, is largely unavailable to prevent inappropriate communication. Where police seem omnipresent, and failing to immediately heed their orders will result in sanction and perhaps in severe penalty. Where the state tells you when to get up in the morning, what you will do during the day, what you will wear, when to eat, what you will eat, and when to go to bed - even when you can shower. Even when and under what conditions you can see your spouse or children. Where the state controls what you watch on TV, and doesn't permit access to programs, movies, or reading materials that may be "disruptive to order". Where the genders are kept segregated, and where a gathering of four or more persons is likely to be quickly broken up by the police (with participants in the gathering subject to being charged with gang activity).

Not North Korea - I am describing the restrictions on liberty imposed by a typical prison in the United States. But if you speak with a prisoner, you will learn that despite this level of state control, drugs are freely available in prisons. Often of a higher quality than on the streets, and usually at a lower price.

If we can't win "the war on drugs" in prisons, who are we fooling with the notion that our present drug policies make any sense at all?

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Public Relations

According to Reuters,

A group of Israelis has joined a court challenge against their government's West Bank barrier for the first time out of concern it could turn their good Palestinian neighbors into deadly enemies.

* * *

"These Palestinians never sent terror to us. They are faces we know. No one can claim they are not people of peace," said Shai Dror, 60, a landscaper who co-launched the petition drive in this upscale suburb just off the Jerusalem-Tel Aviv motorway.

Forget the propaganda for a moment. Often it is too quickly forgotten in that conflict that there are Israelis and Palestinians who desperately want a fair, just and lasting peace.

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Are You A Bigot?

Without apology to Maggie Gallagher:

ARE YOU A BIGOT?
By Maggie Gallagher

The latest complaint about President Bush: By endorsing a federal marriage amendment, he is "writing discrimination into the Constitution." Rosa Parks called the president's words "vile" and "hateful."

Maybe she's so angry because she knows she is on the losing side of history. CBS News recently asked: "Would you favor or oppose an amendment to the U.S. Constitution that would allow marriage ONLY between people of the same color?" In December, the American public split 55 percent to 40 percent in favor. By last week, 59 percent of Americans favored an federal marriage amendment, and just 35 percent opposed it.

The more Americans hear about interracial marriage, the less they like it.

And it's not just Republicans or conservatives: 55 percent of Democrats support a constitutional amendment defining marriage. Perhaps Americans increasingly realize that only a national definition of marriage will end the current lawless circus, with elected officials flouting the law and judges busily rewriting it. (The mayor of Nyack, N.Y., just announced that, in his jurisdiction, interracial marriages will be recognized; the mayor of New York City is being pressured to do so.)

Absent a constitutional amendment, marriage will end up a political football, tossed about by judges like those in Massachusetts: four people so arrogant, ignorant and mean-spirited they can't think of a single reason why keeping the normal definition of marriage matters. Judges and politicians like that imply that the 60 percent of black Americans and 60 percent of white Americans in a November Pew poll who say they oppose interracial marriage must be motivated by "animus."

Translation? You're a bigot.

Take a moment and listen: Interracial marriage advocates are saying there is no difference between two whites being intimate and a white and a black, even when it comes to raising children. They are saying that the opposite idea, that mothers and fathers both being of the same race matters, is a form of hate, ignorance, animus, bias. That's why they claim that the normal definition of marriage is "discrimination."

Do you need more evidence that accepting interracial marriage is not a small add-on to our marriage laws but a radical transformation of them? If preferring husbands and wives who can have same-race children together is "bias" or "discrimination," then people like me who hold such views are bigots. In the America that the National Association for the Advancement of Colored People (NAACP) dreams of, the idea that children deserve mothers and fathers of the same race will become the legal and moral equivalent of racism. Their logic leads not to live-and-let-live tolerance, but to an ugly culture war, using the law to root out public expression of such "prejudices." Public school curriculums will be changed to teach the new social norms to your kids (they are already being developed). Tax-exempt status for faith-based organizations that fail to adhere to the new religion will be at risk.

What about laws against same sex marriage? Same sex marriage laws had nothing to do with the great, historic, cross-cultural purposes of marriage. They were about keeping the straights and gays separate so that heterosexual married couples could receive special governmental privileges and benefits. By contrast, it is simply ludicrous to imagine that same sex marriage was dreamed up in order to express animus toward anyone. Today, one-third of babies are born outside of marriage and end up in single parent families; the deep, ongoing need for an institution that points couples to the only kind of sexual union that protects both them and their children could not be clearer.

Imposing interracial marriage laws is not like striking down bans on same sex marriage. Selma is not San Francisco. A constitutional amendment is not a national crisis.

Our founding fathers deliberately designed the process to be difficult, so that only the most worthy proposals could pass muster.

Marriage is increasingly looking like one of those rare issues: not a wedge that divides, but a cause that unites Americans.

(Readers may reach Maggie Gallagher at Maggie@imapp.org.)

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The Ghosts of Clients Past, II

Yesterday, the New York Times ran an editorial by John Edwards on the issue of trust, in which he recounted the trust invested in him by a client severely injured by an excessive dose of medication. I was reminded of the days when I practiced criminal defense. Yes, clients place a great deal of trust in their lawyers in relation to personal injury cases, but at the end of a personal injury trial nobody goes to jail. That is not always the case - that is often not the case - after criminal trials. The easy cases tend to plead out. The remaining cases for the most part split into two categories: Clients who have nothing to lose, and clients who have everything to lose.

The former group is composed largely of defendants who have been offered to meager a plea bargain, or no plea bargain at all. They don't have much hope of winning, but see little downside in "rolling the dice" with a jury. The latter group contains clients who have a strong innocence defense, or who are in fact innocent. Prosecutors are very resistant to claims of innocence - to do their jobs well, they have to believe that the system works, and that they would never prosecute an innocent person. And most prosecutors seem to quickly develop absolute confidence that every defendant in every case is absolutely guilty.

The innocent client is often faced with a terrible choice, between a plea bargain that extends a shorter term of incarceration or even probation, or the possibility of a long term of incarceration if convicted at trial. It is not easy to be a defense attorney trying to guide a defendant through that decision process. While most defendants are guilty and are eager for a good plea bargain, an innocent client is understandably loathe to admit any guilt. And perhaps continues to operate under the illusion that an acquittal will somehow "clear their name" - in reality, clouds of doubt usually linger even after acquittal. People readily accept a guilty verdict as proof of guilt, but are often suspicious of acquittal.

I had a client who was charged with a serious felony offense, and who faced a long prison term if convicted at trial. He was a father and husband, disabled from his prior physical employment by a congenital medical condition, and was trying to improve life for his family by pursuing an associate's degree. His wife was also enrolled in classes. He was adamant that he was innocent. The prosecution was premised upon the report of a police "expert", whose credentials were that he had attended a two-week police training course, and had assisted a more experienced investigator in a small number of prior cases. The errors in his analysis of the alleged "crime scene" were astonishing - but the prosecutor did not care. She was absolutely convinced that my client had to be guilty - the circular reasoning alluded to above: He had been charged with a crime, and she was prosecuting him, so he was guilty. If he were innocent, after all, she wouldn't be prosecuting him.

The prosecutor's ethics were more than a little bit shady. She intentionally withheld exculpatory evidence. She attempted to present exhibits to the jury while blocking my view of the exhibits, and complained to the judge that I was "trying to read her notes" when I moved to a position where I could see what she was doing. She made faces during my examination and during witness testimony. She coached the police "investigator" as to how to testify about the errors in his report, which were rather horrendous. She concealed a witness who possessed a key piece of evidence until rebuttal, in an effort to sandbag the defense. The judge had been recently appointed to the court, and made a sincere effort to offer a fair trial, but (as is quite typical) when in doubt about the state of the law his tendency seemed to be to rule against the defense. The prosecutor very much took advantage of that inclination, and routinely argued for exclusion of defense evidence that she knew was admissible, and for the inclusion of her improper "rebuttal" witness.

This was not the first case I had tried, but it was the first where I had a strong feeling that my client was innocent. He was very open with me, his story was plausible, and I was still rather stunned by the sloppiness of the police work. But he really won me over after we closed our defense and the prosecutor announced her improper rebuttal witness. Taunting me after a session of court, she had declared, "My rebuttal witness has evidence which proves your client is lying." I told my client this, and he didn't even flinch. "Don't worry about it," he said. "She can't have that evidence, because I'm innocent." He was correct. The witness (a gloating former police officer, more than happy to participate in the withholding of key physical evidence) testified, we presented our arguments, and early the next morning the jury acquitted.

Unlike any other trial I conducted, this one grabbed me by the gut and twisted hard. I barely slept from the first to the last day of trial - probably two hours per night - and had almost no appetite. My whole being was focused on achieving justice for my client. He trusted me, and that was a trust I could not betray. This, to me, is a very different sort of trust than is extended by a client in a civil case. That's "trust with my money" - this was "trust with my life".

I am grateful to the jurors who heard the case for working through a lot of difficult evidence and argument, and for taking their oaths as jurors so seriously. They taught me a valuable lesson, also, about the damages awards that, at arm's length, seem so absurd. When they deliver those verdicts, juries are trying to achieve justice. They aren't concerned with headlines or how the facts of the case will be twisted by "tort reform" advocates on the payroll of insurance companies. They are making a sincere effort to right a wrong against an unremorseful, unapologetic defendant (and I have yet to see such a verdict where the defendant acted apologetically or took even partial responsibility for the consequences of its conduct), and money is the only sanction they are permitted to impose.

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