The Republic of Dissent

The American constitution as a toxin

The best sentence I read this week from Sandy Levinson over at Balkinization:

(...) the Constitution is evermore a clear and present danger to the health of the American Republic.

Sudden change

I disagree strongly with Professor Bainbridge on this:

Former Democratic Congressman, Clinton Administration White House Counsel and federal judge Abner Mikva once explained that: "I support the result of Roe v. Wade. … But … in retrospect, I wish the court had stayed its hand and allowed the political process to continue, because we would have legislated the effect of Roe v. Wade in most states — not all of them, but in most states — and we wouldn’t have had to pay the political price we’ve had to pay for it being a court decision. The people who are angry at that court are angry beyond measure. As far as they are concerned the whole system is rotten because they’ve lost their opportunity to slug it out."

Justice Ruth Bader Ginsburg has likewise stated that "Roe v. Wade ... halted a political process that was moving in a reform direction and thereby, I believe, prolonged divisiveness and deferred stable settlement of the issue."

Because it is custom, tradition, and long familiar patterns that enable people to live together peaceably, social change needs to come slowly. Change and progress are necessary, of course, but sudden change disrupts social bonds, induces stress and engenders controversy as old and vested interests are upset.

Sudden change by a cabal of unelected and largely unaccountable judges is particularly likely to engender controversy.

Sometimes, and I will argue almost always, sudden change is necessary in a society as complex and entrenched as America's. The trouble of course is that change in America is more often than not symbolic (cough Obama cough) when it is sudden and spectacular and in the political process, its effects are diluted at best for many reasons, one of which is that America isn't a nation-state.

I guess my inability to find sudden change troubling explains why I can't become a conservative no matter how hard I try.

Extensive, perpetual, and cheap wars

I agree with David Cole's comment on the now infamous US Justice Department's Drone White paper :

Drone technology has made it possible to use lethal force in many situations where we could not or would not have even considered it in the past. Unlike conventional military operations, drone attacks require no “boots on the ground,” and therefore do not pose a risk to American lives. Unlike bombings, they have pinpoint accuracy; they therefore reduce the collateral costs of killing and may be easier to disavow. Because drones can effectively travel the world while being controlled remotely from home, they permit the “war” to move far beyond the battlefield. And drones have made it possible for the US government to do something that was unthinkable before, and should be unthinkable still—to kill its own citizens in secret. In short, drones radically reduce the disincentives to killing. And that may well make a nation prone to use military force before it is truly a last resort. That certainly seems to be what has happened here.

Kenneth Anderson has a interesting take on the subject.

 

Sexual rights

Food for thought from Alice M Milller via Balkinzation:

Contemporary sexual rights work has some of this same tendency in the hands of the nations who have picked up the standard as part of their geopolitical positioning.  Moreover, perhaps because sexual rights has had to gain credibility as a form of rights work, advocates have often mistaken respectability for respect.   There are many moments in which ‘progress’ in the sexual rights claims of one group has been made by the strategic clambering of one group  up the ladder of respectability over the backs of others.   Some sub-groups ascend the sexual hierarchy by conforming to as many of the prevailing standards of sexual legitimacy as possible.   Other advocates seek the longer and more difficult route of changing the standards of sexual legitimacy for everyone. Think of the respectability attached to monogamy, sex without money, regulated fertility.  These short cuts to advance by groups are not new problems, or unique to sexuality, nor are they likely to end—they are part and parcel of social struggles. 

Citizens United right

From Gerard Magliocca:

I think the critics of Citizens United should admit that their doomsday predictions about what the decision would mean for substantive political outcomes were wrong.  Tons of money were spent to little effect.  Now this may not be the best campaign system, but in the end people listened to the speech being offered and made up their own minds.  As it should be. 

I disagree. An exception doesn't make the rule or rather Magliocca infer the wrong conclusion from what he believes to be the right outcome of Tuesday's election without taking into consideration that especially in financial matters, spending gazilion amounts of dollars dumbly and ineffectively is almost always fatal.

A benefit of this election

From Sandy Levinson:

One "benefit" of this election is that it demonstrates so many things that are wrong with our basic constitutional structures, but, insofar as the worst part of the Constitution is Article 5, I suspect that we will all continue to deny that the Constitution has anything to do with why most Americans, across party lines, have increasing contempt for their government.

In short, America is stuck because of its unchangeable and yet so imperfect Constitution.

Human impulses and restraint

From Norm Geras:

The belief that our species has characteristics and impulses that need restraining is not a monopoly of the right; it certainly shouldn't be. I'll make only passing reference here to the horrors of the last century, and then simply say that those today who believe that a reasonably peaceable society capable of fulfilling the needs and aspirations of its citizens is possible without the rule of law, and the necessary political force to back that law, are sadly deluded. 'Utopianism' in this domain should be about ensuring that authority is democratic and responsible, as opposed to tyrannical and arbitrary; and belief in the malleability of human nature should be limited to trying, so far as possible, to encourage its best rather than its worst features. But left-wing doesn't have to mean closing one's eyes to the more worrying realities of history, though unfortunately it sometimes has meant that.

Chris Dillow putting it more simply:

(...) you don't have to be a conservative to fear that our moral conduct is fragile, and we have impulses that need restraining.

I'm having a hard time agreeing with Geras and Dillow not because I disagree with their belief that human nature needs restraint, but because I am too Camusian to believe  in a priori human frailties that make everybody potential criminals and thus guilty of something before they act.

There is no moderate position on Abortion

I take issue with this from Amy Davidson via the New Yorker:

Romney has said that he does support exceptions to an abortion ban for victims of rape and incest, but, as I’ve written before, that does not make him a moderate. Who would a woman have to appeal to to prove that she had been raped in order to be allowed to end her pregnancy? How long would that take, how vulnerable would she have to make herself to legal machinations, further exposure to her rapist, or the condescending disdain of men like Mourdock? Or is that what he supposes he is sparing survivors of rape by taking the whole question of access for them off the table? How, for that matter, would Richard Mourdock and his cohort want her to prove that she might die if she saw the pregnancy through? Would a small but significant risk be enough? If she was denied access and did die, or was left disabled, where would God’s intention be?

There isn't such a thing as a moderate position on Abortion and people who argue that there is are usually trying to make another point and in this case, Davidson's point  is that Romney is an extremist.  She should just say it instead of using abortion to prove what is for her, obviously, a res ipsa loquitur literally.

It is alarming to assert but in America and elsewhere, there is only a right and a wrong position on Abortion, which means that there is no middle ground for it is impossible to be a little pregnant. For that reason, Abortion is no longer in my opinion a political issue, but solely one of human rights. 

Binders full of women

Sugary excerpt of the day from Joey Fishkin:

Publicly, we are told that Clarence Thomas, for instance, was chosen simply because he was the best jurist for the job, and without any consideration at all of the optics of replacing Thurgood Marshall with an all-white court.  Publicly, we are told that Sarah Palin was simply the most meritorious candidate for the job of Vice President, for reasons that had no connection to any efforts to diversify the Republican ticket.  I find these assertions silly—and I say that as someone with tremendous respect for Justice Thomas, who (contrary to ill-informed liberal stereotype) has turned out to be a powerful and important voice on the Court.

And so I appreciate that Governor Romney has come out and said that he practiced affirmative action.  Perhaps it is an easier thing for him to say in the case of sex than race, I do not know.  But he said it, and that’s important.

It's hard to disagree with Fishkin, I'm tyring to, but his conclusion is on point.

Rape is not rape

More puzzling puzzling words (I swear I don't go looking for them they are just everywhere and find their way to me)on rape from Luke Samuel:

(...) the drive to expand society’s understanding of rape was dependent on a legalistic understanding of what constituted rape. It required women to view themselves as victims of rape in virtue of the fact that they had experienced penetration by a penis without consenting, and nothing more. This was, in part, an understandable reaction against the prejudices about rape complainants. But as women were encouraged more and more to measure their sexual encounters against the legal definition of rape, the space for judgement and common sense began to diminish. If women who had been penetrated without consent refused to acknowledge themselves as rape victims they were ‘in denial’. If men questioned whether every instance of non-consensual penetration was rape, they became rape ‘apologists’. Consequently, the drive to bring rape into popular consciousness had a significant side effect: it encouraged us to define our sexual encounters strictly in reference to the law rather than our own judgement.

In fact, this legalistic approach to what constitutes rape has significantly negative effects for our discussion of what ‘rape’ means. Perhaps, most obviously, it encourages the idea that rape is a simple crime, one which is wholly divorceable from any human context. In the language of many rape-awareness campaigners, ‘rape is rape’.

My point here isn't that Samuel is wrong and a moron, but simply that there is something unsettling about the way he says what he says  that comes pretty close from being an apology not so much of rape, but of dismissive inculture by using the pretext that it is common sense and natural. Complexity and contextual factors are always essential and asserting that they are not when it is the norm in a legal setting to put them at the center of every mater  is troubling.

Samuel is choosing to ignore the fact that in almost every rape case the "accuser" has a hell of time to get and to keep the status of victim precisely because rape is not rape.

La fin justifie les moyens...

Two quotes on Obama's kill list and assassination powers.

The first from Glenn Greenwald:

In fairness to Obama, he did campaign on a promise of change, and vesting the President with the power to order the execution of citizens in secret and with no oversight certainly qualifies as that. (...)to summarize the Obama campaign’s apparent argument: it’s absolutely vital that we know all about the GOP nominee’s tax shelters and financial transactions over the last decade (and indeed, we should know about that), but we need not bother ourselves with how the Democratic nominee is deciding which Americans should die, his claimed legal authority for ordering those hits, the alleged evidence for believing the target deserves to be executed, or the criteria used to target them. So low are one’s expectations for an American Election Year that there are very few spectacles so absurd as to be painful to behold, but the Obama campaign’s waving of the transparency flag definitely qualifies.

The second from Joseph Lelyveld:

Just how is a president supposed to take on terrorists thousands of miles away whom he believes to be targeting the country he’s sworn to protect in a constitutional manner? Should he file an extradition request with the government in Islamabad or, as Bill Clinton did before September 11 but after the attacks on the USS Cole and the embassies in East Africa, lob cruise missiles from the Arabian Sea and hope for the best?

To settle this debate, we only have to quote Karl Marx or rather to use a Marx's quote used by Camus in the Rebel:

An end which requires unjustified means is no justifiable end.

 

Worms and Broccoli

Best comment on the US Supreme Court's decision on Obamacare from Jack Balkin:

The specter of vegetables still haunts us. We may be safe from broccoli mandates, but we are not safe from broccoli taxes.  (...) It's hard to predict what will flow from this opinion doctrinally. If President Obama manages to appoint a majority of liberal justices in his second term, most of the innovations in this case will be forgotten. The new spending clause doctrines will be confined, and the Commerce Clause language treated as dicta or made practically irrelevant. If Mitt Romney wins, on the other hand, he may be able to appoint a strong conservative majority to work with Chief Justice Roberts. Then, in hindsight, Roberts' seemingly compromised opinion won't be very compromised at all. His apparent flip-flop won't be understood as a change of mind. Instead, his opinion may turn out, in hindsight, to be the beginning of an important transformation in constitutional law. What will happen can't be deduced from the four corners of these documents. It will depend on the Supreme Court appointments of the next decade.

I have to admit that I am puzzled and saddened by the whole political spectacle around an issue that ought to be pretty simple, but isn't in great part because Obama tried to split the baby in half thinking that he was wiser and cooler than Solomon and killed it.  Thus, the US will continue to fight over peanuts because it is the God of Small things and because even when it want to give its people broccoli or something else than they need, it has to take all the nutrients out of it because it is un-American to be as decent, as candidly good and straightforward as Canadians.

'Black' is the new Bush

Frightening fact from Peter Van Buren :

The Obama administration has been cruelly and unusually punishing in its use of the 1917 Espionage Act to stomp on governmental leakers, truth-tellers, and whistleblowers whose disclosures do not support the president’s political ambitions.

R.a.c.i.s.t

Words to munch on this weekend from Belle Waring slamming the idea  hat racism has nothing to do with normalcy :

If someone is “a racist” it is not because he is a like a Nazi with a uniform and everything, and pledges allegiance to the flag of racism, and goes around shouting “I hate Mexican people!” Well, to be fair, he might shout that if he were drunk and had smoked some of the cottonmouth killer, or were on MySpace. And those dudes in Stormfront exist. And racist skinheads too dumb to join Stormfront. Nonetheless, in ordinary speech one only means “hey, he said a thing that was racially prejudiced,” or “she told a racist joke,” or “he threw a crumpled-up beer can at that broke-ass African-American gentleman walking right beside the road (South Carolina doesn’t hold much truck with sidewalks) while shouting ‘f%cK you n1gger!,’” or “she collects these weird racist yam crate-labels from Louisiana in the ‘30s and I am not sure her motives are entirely pure.” (May God help me on this one, a collector sells them in Takoma Park at vintage fairs and sometimes I succumb. They’re so cool! She’s a 65-year-old Black lady, so she’s off the hook. OR IS SHE?!).

I agree with Waring. Nevertheless,  I wish she wouldn't stop at the surface and question also the assumption that all racist acts are equal and that all racists are the worst  people in the world.  For example, Belle Waring asserts that for all of his 'nice' deeds and 'normal' life, George Zimmerman, the shooter of Trayvon Martin, is a racist. I wonder whether if he has to be a racist, to be guilty and also whether it is possible for him to be racist and not be guilty.

In short, is the racism of the shooter in this case the sole determinant of guilt? I don't think that it is. 

 

Americanizing international law

I 'm going to munch on this assertion from Kevin Jon Heller all weekend, but that's because I agree with him even when I'm trying desperately not to:

Indeed, for too many American international-law scholars, particularly conservative ones, it is meaningless to distinguish between the lex lata and the lex ferenda — international law is simply whatever the U.S. says it is.

I can't wait to see what Professor Anderson has to say (he has said something, but not on this point). I have a feeling that he will say that an American interpretation of international law isn't in itself wrong, because it is American, and may indeed be right. However is that the issue?

It isn't enough to be smart to be a good president

Sugary excerpt of the weekend from Jack Balkin:

The fact that Obama is a former professor of constitutional law does not justify his scuttling practices that are designed, over long periods of time, to improve legal deliberations and help ensure that presidents conform to the law. Former professors of constitutional law, like current ones, have been known to disagree among themselves about what the law requires; they have even been known to make mistakes and engage in serious misjudgments.

The fact that Obama may think he is smarter and more learned than George W. Bush also does not justify his practice. The next President, or the one after that, may think themselves smarter than Obama. They will certainly find a group of able lawyers somewhere in their Administration to tell them so. Obama came into office promising to reform the abuses of the Bush Administration and its manipulation of the OLC. The best way to do that is not to create entirely new abuses of one's own.

What alarms me is the deepening silence of some of Bush's biggest critics on Obama's actions and those people who were convinced that the One was going to bring them change they could believe in. Oh, I forgot American politics is about identity and about voting for people who can do wrong as long as they are "one of us."

The impossibility of moving forward without looking back

I agree with David Cole on this:

It turns out that looking forward, not back, will never resolve the torture legacy. Until we own up to and provide a reckoning for the moral and criminal wrongs committed by officials at the very highest levels of the former administration, the fact that we tortured will continue to fester—and cause problems for its successor. The prevailing view in Washington seems to be that we should move on, but such wrongs cannot be forgotten. Try as we might to ignore it, the fact that we tortured and did nothing about it will periodically raise its head—in a failed prosecution, a foreign court judgment, or a terrorist incident inspired by images from Abu Ghraib. And even when it does not manifest itself so dramatically, the fact that the president of the United States was able to order torture, boast about it in a best-selling book, and walk way scot-free will fuel a deep vein of worldwide resentment. Torture and its after-effects will be with us until we are willing to confront them head-on.

In short, even the 'One' or rather especially the 'One' cannot redeem America's moral failings without doing more than simply saying that a page has been turned and that the past has passed. Obama has more than a torture problem, he has a moral one for he was elected to save America, to cleanse its soul; it is thus more difficult for him than for anyone else to argue that he is change if his point because that his sole election put Humpty Dumpty together again and makes clear that a lot was happened before him happened before him and therefore no longer matters.

Jesus cannot be Pontius Pilate.

The means can derail the end

Eugene R. Fidell says all that has to be said in a few words about the trial of Ghailani and the uproar following its verdict:

(...) it is important not to lose sight of the root cause of the outcome: he was subjected to coercion during his interrogation. There's the problem.

Thus, the outrage over United States v. Ghailani has nothing to do with the rule of law, but everything to do with politics. It offers one more proof that the Obama administration is weak on this issue for it is constantly backtracking because it is scared of being blamed for not using any means necessary to protect America if the worst happens. In short, the Obama administration is afraid to stand behind the rule of law not really because of ideology, but fear and politics.  There is nothing sadder than seeing an administration that  pledged to be better different than its predecessor being Bushlike out of fear rather than because of principles.

Prostitution as a well-respected profession with an established code

One of the reasons why I love reading Chris Dillow is his amoral approach to complex subjects as this sugary excerpt shows:

The allegations that Wayne Rooney paid £1200 a time for sex brings a well-respected profession into disgrace. I refer, of course, to prostitution. In selling her story, Ms Thompson has broken the code that prostitutes, like priests and lawyers, do not divulge their dealings with clients.

I'm not offended by the idea that prostitutes are comparable to priests and lawyers. However, I'm disturbed by the notion that their clients more than sex when 'hiring' them.

Futile theater

I'm watching the Elena Kagan's confirmation hearings. I'm appalled by their uselessness for it is obvious that everybody is playing to the cameras and that this pathetic spectacle has been so rehearsed that the end is known and that no important questions will be answered. So what is the point of it all? It seems that it may be time for Congress and the political establishment to do everybody a favor and save us from this lamentable theater, which just reminds those of us who care about the US Supreme Court that this exercise has stopped to be useful because the fear of the unknown and of the political embarrassment, has led all the participants to agree to make a process, that needed to be somewhat authentic to be fertile, predictable and sterile.

Gitmo and Obama forever

The quote of the day is from Glenn Greenwald:

Guantanamo -- the closing of which was one of Obama's central campaign promises -- will still be open as of 2013, by which point many of the detainees will have been imprisoned for more than a decade without charges of any kind and without any real prospect for either due process or release, at least four of those years under a President who was elected on a commitment to close that camp and restore the rule of law. None of this is news to anyone even casually watching what's been going on, but there are several aspects of this article which are so noteworthy for illustrating how this administration works.  Let's begin with this:  Obama officials -- cowardly hiding behind anonymity as usual -- raise the typical excuse which they and their defenders perpetually invoke for their "failures" to fulfill their campaign positions:  it's all Congress' fault ("They blame Congress for failing to execute that endgame," Savage writes)

Not Ok for Bush, Ok for Obama

Quote of the midday is from Bella Gerens:

Not that I ever expected him to be, but Obama is surely not the saviour he tried to make us all believe he was. And I absolutely do not understand why it is an outrage for Bush to read our emails but it’s fine for Obama to authorise the assassination of an American citizen. I do not understand why it is an outrage for Bush to deny foreign terrorism suspects their rights but it’s fine for Obama to do the same to American citizens on American soil. I do not understand why it was good that Obama was going to try Kalid Sheikh Mohammed in a civil court in Manhattan (where he would never get a fair trial), and now it’s also good that Obama’s not going to try American terrorism suspects in civil courts (where they might just have had a chance at a fair trial). I do not understand how American Congressmen can even propose this sort of thing during the administration of a constitutional lawyer, when the merest idiot can see that it’s plainly unconstitutional. There are no exceptions for terrorism in the Bill of Rights.

Elena Kagan, Careerism and feminism

Another scintillating proof that it takes a Canadian or an American living in Canada (distance is essential) such as Gil Troy to make poignant and astute analysis of America and Americans:

The football great Rosey Grier sang It’s All Right to Cry, encouraging boys to show their emotions, too, because “crying gets the sad out of you.” A pre-disco Diana Ross sang When We Grow Up, reassuring youngsters, “Well, I don’t care if I’m pretty at all/And I don’t care if you never get tall/ I like what I look like and you’re nice small/ We don’t have to change at all.” Alan Alda and Marlo Thomas performed William’s Doll, with William ultimately being vindicated after being taunted by his friends: “a doll, a doll, William wants a doll.”
All this delightfully iconoclastic feminist propaganda paved the way for an unmarried 50-year-old woman to become what she dreamed of becoming.
And yet, Ms. Kagan’s résumé seems too perfect. She may have forgotten the essential message of Free to Be … You and Me’s title song: “Every boy in this land grows to be his own man. In this land, every girl grows to be her own woman.” This woman, who posed in judicial robes for her Hunter College High School yearbook, may have been too calculating in climbing to the top. She has taken remarkably few public stands, entered into surprisingly few public controversies for a woman of her prominence and power.

I have to admit that I'm starting to be troubled by the fact that I don't know anything substantive and relevant about Elena Kagan that would tell me not that she would be a competent justice, but rather one that would be in the mold of Justice Stevens and stop the US Supreme Court's worrisome tilt to the right. Vacuity here is starting to become dangerous because it means two things. The first is that being on the left on legal issues and expressing those views is a bad career move. The second is that the right has won when it comes to the Supreme Court politics for Liberals and moderates (non Conservatives) have to guess when it comes to a Supreme court nominee that is appointed by a Democratic president and to trust that the judgment of the president is infallible

Conditional American citizenship

I'm appalled by this line of argument from Peter Schuck:

Revoking citizenship merely for being a member of al Qaeda or giving it material support (both criminal acts) would present a harder question, as would rendering a person stateless. The Constitution rightly protects the citizenship of law-abiding and criminal citizens alike against a government that seeks to exile them. Although loyalty is basic to citizenship, we don't make native-born citizens affirm it. We do require affirmation of loyalty in the naturalization oath, but that is a different context. Requiring loyalty oaths otherwise may infringe First Amendment rights to dissent or to remain silent.
Drawing these lines will be difficult. Yet public fears of citizen-launched terrorism make this task inescapable and will test our conception of both citizenship and the Constitution.

Just suggesting that people who have acquired American citizenship can lose it if they are terrorists makes naturalized citizens second class citizens who always have to prove that they love America more than born Americans. The fact that the question of stripping the American citizens from born Americans when they do something that shames America or threatens its existence or the lives of its citizens is taken seriously by scholars as renowned as Schuck show that for too many people Americanness is not about nationality, but about some imaginary pure and stagnant identity. In short, Peter Schuck and the others who want to revoke the American citizens of Faisal Shahzad are legitimating the point of view of the birthers and the ones who believe that some people can never become real Americans despite of their citizenship or should away be looked with suspicion because they are potential threat to America.

Kenneth Anderson has another take on the issue so does Kevin Jon Heller.

Elena Kagan and self-respect

A sane point of view on the Kagan's future confirmation hearings from Sandy Levinson:

(...) my hope is that Elena Kagan, whom I deeply admire, will "just say no" (or, more fittingly, "go fuck yourself") to Rahm Emanuel when he suggests that she serve Team Obama by emulating John Roberts and Sonya Sotomayor and their utterly dismaying performances, whatever the costs to the integrity of our constitutional system or, indeed, to her own self-respect.

The trouble is that I'm not sure that you get to be a Supreme Court nominee by not be willing to serve the interests of your 'master' to the detriment of your self-respect. Kagan is going to say nothing, follow the instructions and the advice that she receives, and hope that her detractors overreached and that those who would like to know more about her views (I'm one of them) trust Obama's judgment enough to shut down their own doubts (I don't  trust judgment more than my own).

Tyrannical treatment of American citizens

Quote from the morning from Glenn Greenwald:

There is, of course, no moral difference between subjecting citizens and non-citizens to abusive or tyrannical treatment.  But as a practical matter, the dangers intensify when the denial of rights is aimed at a government's own population.  The ultimate check on any government is its own citizenry; vesting political leaders with oppressive domestic authority uniquely empowers them to avoid accountability and deter dissent.  It's one thing for a government to spy on other countries (as virtually every nation does); it's another thing entirely for them to direct its surveillance apparatus inward and spy on its own citizens.  Alarming assaults on basic rights become all the more alarming when the focus shifts to the domestic arena. 

America, bisexuality, and the categorization imperative

I agree wholeheartedly with Eugene Volokh on this:

Whether Elena Kagan is straight, lesbian, bisexual, or asexual doesn’t matter to me. Moreover, to the extent a number of her close friends, who are likely to know her recent love life, say that she’s straight rather than lesbian or bisexual — and that seems to be something that one of her friends quoted in the Politico article I linked to above is saying — that should be pretty reliable evidence for those who care about the subject. Among other things, if she understandably concludes that it’s beneath her dignity to discuss her love life in public, evidence from a number of friends is the most that can be provided: “[C]ontrast the ease of proving one is straight or gay in a world in which bisexuals are not acknowledged to exist with the difficulty of proving the same thing in a world in which bisexuals are recognized.”
But the sort of bisexual erasure that takes place when we say “X can’t be lesbian, she’s dated men” (or “X can’t be gay, he’s dated women”) strikes me as pretty unsound, and not fair to a group that makes up a pretty big chunk of the non-straight population.

One has to wonder why a Supreme Court nominee's sex life ought to matter in the United States in America and realize sadly that it does because America loves categories. For it, categories especially when they are sexual and racial clarify issues of identity, which are key to its politics and to its society. People are obsessed with Elena Kagan's sexuality because they assume that it will them everything that they need to know about her views for after all, America still believes that the sex that one defines who you are and informs society about one's values. More importantly, Americans get easily confused by complexity when it comes to race and sex because they are pillars of its societal establishment. This fact explains why it is difficult to be 'bisexual' or 'biracial' and not to be marginalized in the good old USA.

Obama, National security, and progressivism

The statement of the day is from Kevin John Heller on the rumors that Elena Kagan is Obama's pick to replace Justice Stevens in the US Supreme Court:

Can we finally stop pretending that there is anything even remotely progressive about Obama, at least insofar as national security is concerned?

Trampling the Constitution to gain a temporary advantage

Stephen Bainbridge on the fact that some are calling for Faisal Shahzad, the suspect in the failed Times Square bombing, to be tortured or even to be stripped of his American citizenship(Joe Lieberman):

This despite the fact that the SOB is an American citizen arrested in the United States. Oddly, moreover, I don't recall the Journal or others on the right expressing the same concerns about Timothy McVeigh or those militia nuts that got arrested a few weeks ago.
I'm more than a little appalled about how readily some on the right are to toss out the window centuries of Anglo-American jurisprudence to win temporary advantage.

It's always telling and alarming to realize that the rule of law to some is conditional and that the ends justify the means when it comes to security.

Spanking and the Council of Europe

Ed West on the desire of the Council of Europe to have countries ban spanking to obey the European Convention on Human Rights:

Most parents do not smack their kids, but smacking is not abuse, any more than neglecting your children’s studies, letting them get overweight, spoiling them or smoking around them is. All of those might be examples of bad parenting, but they are not abuse, and there is a fundamental and important difference. It is the crucial distinction between what is wrong and what is illegal.
In a free society, the state does not interfere in the nursery any more than it interferes in the bedroom. That the Council of Europe seeks to do so is fundamentally sinister, creepy and totalitarian, and very un-British.

For some reason, I'm not outraged about this superfluous polemic, but that's probably because I'm not a parent and because I'm still sore from all the spanking that I got when I was a child.

Rwanda, the rule of law and genocide ideology

As a lawyer, this troubles me:

Rwandan authorities arrested a top opposition politician on Wednesday and charged her with genocide ideology — a contentious crime that many critics say has been used to stifle dissent — and with cooperating with a notorious rebel group.
The politician, Victoire Ingabire, has been one of the most vocal opposition figures in a country that seems to have grown increasingly intolerant of political challenges. She was summoned to a police station at 9 a.m., according to her assistant. Mrs. Ingabire, an accountant who had lived in Europe for years, has been under investigation since nearly the moment she returned to Rwanda in January and announced she was running for president.
Investigators have interrogated her several times on suspicion of instigating ethnic divisions. She said in an interview last month that she was being persecuted for simply challenging the government.

I'm bother by this kind of sentimentalization of the law for political purposes for two reasons none of which have to do with Victoire Ingabire and her views, which I find despicable. The first is that it shows that Kagame who is, undoubtedly, one of the best African president when it comes to managing his country and enriching it, is also an autocrat. The second reason is that the charge of genocide ideology in my opinion, which isn't one of an expert in the area, is that it keeps the past alive and therefore makes national reconciliation among Rwandans difficult because the Hutu will always be guilty or rather suspected of preparing a genocide. I always find it dangerous when history is used by politicians to maintain their grip on power. 

A choice about choice

Good point about abortion in the US from Stuart Derbyshire:

Perhaps now is the time for the pro-choice lobby to recognise that Roe vs Wade was a mixed blessing. For the past 30 years, it has been the Supreme Court, and not broader society, that has made the necessary decisions about abortion. Justice Blackmun’s majority opinion in Roe focused on abortion as a privacy right (the ability of patients and doctors to pursue clinical decisions without fear of interference from the state) and the right of clinicians to practice their profession. In contrast, the rights of women to control their bodies and their destinies did not feature in the 1973 opinion. Roe effectively took the power to decide about abortion away from society and gave that power to the Supreme Court. Thus began more than 30 years of legal wrangling and posturing over abortion that has increasingly pushed everyone but lawyers and judges to the side.
In an important sense, the battle for autonomy over fertility was lost in 1973 rather than won because the battle shifted away from women’s autonomy to decide their life course as equal citizens and towards influencing nine Supreme Court judges. Women need access to abortion to have control over their own destinies rather than having their destiny dictated by a biological accident.

The trouble of course comes the particularity of the American context. America is a religious country and for that reason, even those who are in favor of abortion (especially politicians who want to get elected) are always ambivalent about the right of the woman to control of their body if it is proven that what she has inside of her is a living thing. I don't think that Roe vs. Wade will ever be overturned because it is not necessary to do so to make it impossible for women to make an increasingly difficult and socially unacceptable choice to have an abortion .

Benedict XVI and Roman Polanski

Dominic Lawson denounces what he believes to be a double standard in the difference of treatment that the Pope receives and the one given to Roman Polanski:

The point is, I suspect, that whereas the Pope does understand that great wickedness has been perpetrated – systematically – by individuals within the Catholic priesthood, Polanski genuinely regards his own conduct as blameless. In fact, he sees himself, and not the 13-year-old girl he sodomised, as the victim.

Lawson isn't wrong. I am of the opinion that Polanski ought at least to be made to come to California not necessary to go to jail (I don't believe he will ever spend any time in prison, but even if he does, it will be shorter than it will shorter than the time he spent in a Swiss), but to face the court even if at the end, it is decided that jail isn't a suitable punishment. The key difference between this case and the one of the Catholic Church is that Benedict XVI is given the status of a semi-God in the sense that as the Pope, the head of powerful religious organization, it is assumed that he is closer to God than anybody. Just this fact makes it impossible to justify not really imperfections, but the refusal to follow the values of his church or at least to make a good faith attempt to. 

In any case, the fact that to defend the Benedict XVI, Lawson has to compare him to Roman Polanski is indicative of the moral decay of the Catholic Church and of its Pontiff.

Bushism becomes acceptable when done by Obama

On point interrogation from Sandy Levinson:

It is widely known that Obama has ordered more drone strikes in his year in office than George W. Bush did in his entire administration. One can only wonder what the response of the left would be if it were Bush (and, say, John Yoo) engaging in (and defending) the actions that seem central to the Obama Administration's policy in Pakistan (and Yemen and....).

The point of course is that in the age of identity politics, policies matter less than the person/the persons enacting them and the way the electorate, the media and others feel about them and identity with them..

Kill not to detain

Sugary excerpt of the day from Asim Qureshi lamenting that the Obama doctrine in the war on terror is more deadly than Bush doctrine since it is choosing to kill even US citizens suspected of terrorism rather to detain them:

The US would like us to believe that we should simply trust that they have the relevant evidence and information to justify such a killing, without bringing the individual to account before a court.
The assumption that trust should be extended to a government that has involved itself in innumerable unlawful and unconscionable practices since the start of the war on terror is too much to ask. Whatever goodwill the US government had after 9/11 was destroyed by the way in which it prosecuted its wars. Further, the hope that came with the election of Barack Obama has faded as his policies have indicated nothing more than a reconfiguration of the basic tenet of the Bush Doctrine – that the US's national security interests supersede any consideration of due process or the rule of law. The only difference – witness the rising civilian body count from drone attacks – being that Obama's doctrine is even more deadly.

He's our despot

I agree with Glenn Greenwald on this:

George Bush's decision merely to eavesdrop on American citizens without oversight, or to detain without due process Americans such as Jose Padilla and Yaser Hamdi, provoked years of vehement, vocal and intense complaints from Democrats and progressives.  All of that was disparaged as Bush claiming the powers of a King, a vicious attack on the Constitution, a violation of Our Values, the trampling on the Rule of Law.  Yet here you have Barack Obama not merely eavesdropping on or detaining Americans without oversight, but ordering them killed with no oversight and no due process of any kind.  And the reaction among leading Democrats and progressives is largely non-existent, (...)

This double standard just shows that for too many 'principled' 'liberals and democrats the trouble with George Bush wasn't what he was doing, but who they believed he was: not one of them or rather the enemy. Obama gets the benefit of the doubt, because he is one of them and therefore they assume that he is protecting their interests. It's just another troubling variation of identity politics, one where transgressions matter less than the identity of the transgressor. Obama is proving that the US is a nation of men not one of laws. In short, Nixon was almost right, for most Americans  if they love the president, whatever he does is for their own and legal just like any good parent father.

The Pope as a normal being

I agree with Christopher Hitchens on this, but I recognize the rest of the world doesn't agree with us:

For Ratzinger, the sole test of a good priest is this: Is he obedient and discreet and loyal to the traditionalist wing of the church?(...)This is what makes the scandal an institutional one and not a matter of delinquency here and there. The church needs and wants control of the very young and asks their parents to entrust their children to certain "confessors," who until recently enjoyed enormous prestige and immunity. It cannot afford to admit that many of these confessors, and their superiors, are calcified sadists who cannot believe their luck. Nor can it afford to admit that the church regularly abandoned the children and did its best to protect and sometimes even promote their tormentors. So instead it is whiningly and falsely asserting that all charges against the pope—none of them surfacing except from within the Catholic community—are part of a plan to embarrass him.
This hasn't been true so far, but it ought to be true from now on. This grisly little man is not above or outside the law. He is the titular head of a small state. We know more and more of the names of the children who were victims and of the pederasts who were his pets.

Hitchens is right on principle, and it doesn't not matter here for the Pope is a powerful little grisly man who will never have to answer any question. He is the head of the most powerful church and that fact protects him. It makes him in fact above the law. There are always going to be priests, people willing to fall on their swords for Benedict XVI, believing that martyrdom will earn them a special place in paradise if someone dares to examine the Vatican's role in all the sex abuse scandals.

Rehabilitating Child killers

I agree with Julian Baggini on this:

(...) when we ask how much we should try to rehabilitate child killers, for instance, it is wrong to think that forgiveness should be the key motivation. It is not for the legal system to forgive. Justice in such cases is rather about giving the right answers to four main questions. First, were the killers sufficiently responsible for their actions for us to regard retribution as of primary importance? Second, would prioritising rehabilitation threaten public safety? Third, would prioritising rehabilitation weaken deterrence against similar future crimes? And four, would rehabilitation actually work?
The best reasons we have for thinking that the Norwegians dealt with their child killers better than we did with the Bulger killers is because the answers to these questions in most such cases is no, no, no and yes. It has nothing to do with forgiveness being a superior virtue. To prioritise the rehabilitation of violent criminals who knew what they had done and posed a danger to the public just because we thought it good to forgive them would be a terrible mistake. More than that: it would be unforgiveable.

Unfortunately, most societies, most notably, the United States aren't Norway and believe less in rehabilitation even for child killers than in punishment and retribution because they were born bad and that there is nothing that society can do except protect itself from them.

The vulgarity of hate speech laws

I agree with Glenn Greenwald on this:

For as long as I'll live, I'll never understand how people want to vest in the Government the power to criminalize particular viewpoints it dislikes, will never understand the view that it's better to try to suppress adverse beliefs than to air them, and will especially never understand people's failure to realize that endorsing this power will, one day, very likely result in their own views being criminalized when their political enemies (rather than allies) are empowered.  Who would ever want to empower officious technocrats to issue warnings along the lines of:  be forewarned:  if you express certain political views, you may be committing a crime; guide and restrict yourself accordingly?  I obviously devote a substantial amount of my time and energy to critiquing the actions of the U.S. Government, but the robust free speech protection guaranteed by the First Amendment and largely protected by American courts continues to be one of the best features of American political culture.

Hate speech laws are both paternalistic and ineffective, More importantly, they are vulgar, because they assume that hate is solely a problem when it is expressed and that the State is a nanny that can forbid the content of expression without eduction.  All one has to do is to look at Europe to realize that the attempts of governments to disinfect and to civilize through force rather tan education lead to the rise of marginal groups, to the fetishism of the forbidden views and of disobedience within society and to the multiplication of zones (football stadiums) where people express violently point of views that can express publicly.

The misogyny of abortion politics

I agree with Melissa McEwan on this:

In Utah, women still have a technical legal right to abortion, but very little means to exercise that right.
And now, in pursuit of ensuring that women's right to abortion is as limited as possible, the state has opened the door to prosecuting women who miscarry after having a drink of caffeinated coffee or a beer or a cigarette, or take a vigorous walk, or miss a prenatal care appointment, or shoot up heroin, or go to spinning class, or any one of a number of things that pregnant women do every day, good and bad, during pregnancies that come to term, if there's someone who will testify she did it to miscarry; she was trying to miscarry; she told me.
In pursuit of ensuring that women's right to abortion is as limited, the state has conferred personhood on foetuses, and reduced women to incubators. And watch out if the machinery breaks.

I've always wondered how marginal and nonexistent the politics of abortion would be if it were pregnant and not the women. My guess would be that more people would be willing to defer to their judgment and assume that they knew what they were doing with their body instead of being influenced by their hormones. The abortion reminds me in a way of the burqa/niqab debates because in both cases, women are told that there are choices, which they cannot not make in the public interest and morality. I will bet my right hand that a constitutional challenge to the Utah law is coming for I believe that there is a strong argument to be made that it is overbroad and not narrowly tailored to its stated objectives.

Attacking the lawyers

Debra Burlingame and Thomas Joscelyn have a op-ed in the Wall Street Journal this morning, which I find despicable and demagogic. Sugary excerpt:

In the last several days, the debate has taken a detour about what some have called a "shameful attack" on the "noble attorneys" who have chosen to defend "unpopular people." A national security organization, Keep America Safe (of which Ms. Burlingame is a board member), used the phrase "Al Qaeda 7" in an Internet ad to describe seven unnamed Department of Justice political appointees who previously represented or advocated on behalf of terrorists.
The purpose of the ad was to prod Attorney General Eric Holder to disclose to the public which detainee attorneys he has hired to work on behalf of the American people, and whether they are involved in the policy-making decisions that will affect the nation's safety and security while we are at war. He was asked for this information by several members of the U.S. Senate, and he was stonewalling.
The attorney general has the right to select whomever he chooses to work in his department, and to set policy as he sees fit. He does not, however, have the right to do it in the dark. The policies he advances must face the scrutiny of the American people, his No. 1 client.
The public has a right to know, for instance, that one of Mr. Holder's early political hires in the department's national security division was Jennifer Daskal, a former attorney for Human Rights Watch. Her work there centered on efforts to close Guantanamo Bay, shut down military commissions—which she calls "kangaroo courts"—and set detainees who cannot be tried in civilian courts free. She has written that freeing dangerous terrorists is an "assumption of risk" that we must take in order to cleanse the nation of Guantanamo's moral stain. This suggests that Ms. Daskal, who serves on the Justice Department's Detainee Policy Task Force, is entirely in sync with Mr. Holder and a White House whose chief counterterrorism official (John Brennan) considers a 20% detainee recidivism rate "not that bad."

I find those arguments not only troubling, and ideological, but more importantly unconvincing. They are are made in a vacuum and with the implicit assumption that it is un-american to defend alleged or known terrorists and that there are times when the rule of law should become the rule of men especially if means shutting up or killing the lawyers who dare to question the actions of their government. The central issue of this whole debate isn't about a few lawyers who can easily be scapegoated as defenders of Al Qaeda, but rather whether, even in times of crisis and of great uncertainties, America still believes in its own laws and will view as normal Americans, its citizen, who hold the rule of law as sacred, and who choose to defend that principle above all else when their government isn't, . It's always easy to blame the lawyers when the politics of terrorism have become almost so one-sided and Manichean and, that thus, only radicalism can help score political points.

The rule of law after torture

I almost agree fully with this:

Even in imagining the best possible outcome–a decision by the president to stop torture, close Guantánamo, get our soldiers out of Iraq, shift the trials of detainees to federal courts–the rule of law will not be restored until those officials who licensed torture are prosecuted. A country that tortures when it has a president who believes he is permitted to torture and then abstains from torture when it has a president who recognizes that torture is unconditionally prohibited continues to be a country living under the rule of men, rather than the rule of law; for it is allowing its moral fate to be determined by the personal beliefs of its rulers.
Righting a wrong is especially difficult if the wrong has been initiated by a president. Any occupant of the White House has tremendous charisma, and therefore a tremendous capacity to miseducate.

I agree that the assertion that when a country, which believes that it is a nation of laws not of men, has broken that principle by legitimating torture for egotistical reasons, the restoration of the rule of law must begin at the top and cannot mean sweeping the recent and disturbing past under the rug. The trouble comes from the fact that the past here hasn't passed and that Obama doesn't want to do what has to be done because he doesn't want to find himself with fewer choices than Bush if another terrorist attack happens on  American soil. My point is that most Americans are more grateful about the fact that 'nothing' followed 9/11 than they are outraged by the fact that the rule of law was superseded by the need to keep America safe by all means necessary and even if it meant sacrificing its values. My guess is that apologies and restoration will come after Obama and his successor when the ones responsible and most of us will be either too old to understand what's going on or dead.

Killing all lawyers

Quote of the morning from Sabin Willett, a lawyer who represented Gitmo detainees: 

(...) as the years went by, the right did learn one thing useful about Guantanamo detainees. The public can’t distinguish one from another. If imprisoned endlessly, the detainees will furnish an endless source of scaremongering — that rich mulch in which votes will grow.
And so Cheney and Grassley beaver away to Keep America Scared. Some Americans will see the rule of law as a threat, and lawyers as the enemy. Small men with loud voices will exploit their fears on cable television. Petty politicians will mine them for votes. It’s been this way since Shakespeare’s famous policymaker Dick the Butcher said, “The first thing we do, let’s kill all the lawyers.’’

Criticizing lawyers

Quote of the day from David Luban:

There is simply no parallel between criticizing lawyers for violating the law and assassinating their characters for representing the "wrong" clients.

Cynicism and the political instrumentalization of 'genocide'

I agree with Joshua Keating's conclusion to his post on the political intrumentalization of the Armenian genocide by American politicians:

All in all, the level of cynicism in Washington around this tragic historical event  is pretty disheartening. Like President Bush before him, President Obama was for using the word "genocide" as a candidate before he was against it as president. Former House Majority leader Dick Gephart, who supported recognition as a congressman, is now lobbying against it on the Turkish payroll.
Outside the Armenian-American community, whose grievance on this issue is understandable and shouldn't be dismissed, most Americans would probably prefer that the congress focus its efforts on preventing and ending current conflicts.

France passed a law recognizing the Armenian genocide in 2006 and it just gave politicians an occasion to grandstand or to argue that Turkey didn't have its place within the European Union for it was made much news since or has no impact neither in France or in Europe on the important questions. The argument is that genocide should be something politicians play football will and that only historians ought to write history.

Troubling American contradictions

I agree with David P. Forsythe on this:

The American penchant for at least the rhetoric of freedom and democracy morphed into the modern human rights movement after World War II under the leadership of Franklin and Eleanor Roosevelt, and Harry Truman. During the Cold War U.S. alignment with brutal authoritarians like Mobutu in Zaire, or the overthrow of even elected governments, as in Chile in 1973, or the supervision of torture in Latin America never destroyed the dream of America as moral beacon. In public we accepted the Geneva Conventions and the UN Convention Against Torture. In the shadows we played the game about as tough as anyone else.
9/11 accentuated this duality, perhaps schizophrenia. George W. Bush said al-Qaeda hated us for who we were, our personal freedoms in thought, including religious thought, and our gender-blind democracy. They hated us because we rejected their deferential and patriarchal theocracy. But in secret we engaged in forced disappearances, torture, cruelties arguably just below that level of abuse, denial of reasonable dues process in places like Guantánamo, Abu Ghraib, Bagram Air Force Base, and military brigs in South Carolina. In defense of our moral greatness we engaged in policies that undercut that greatness. As Winston Churchill paradoxically noted in World War II, truth was so important it had to be defended with a  bodyguard of lies. So for us after 9/11, the rule of law and personal rights were so important they had to be defended by secret detention and torture.

What is troubling me more than anything is that Bushism is winning by default, without any attempt by Obama to offer an alternative that doesn't involve solely giving a speech, changing the facade while performing the same acts. It was because for this reason, because I sense within Obama, a reluctance to be bold when it comes to policy not campaigning that I had couldn't force myself to get behind Obama during the election. I  have always believed that because Obama was thought to embody change, to epitomize it because he was part black,  that he was going to have no incentive, no effective pressure to change America for the better.

Exceptionalism and Solitude

I agree with Glenn Greenwald on this:

The U.S. -- first under the Bush administration and now, increasingly, under Obama -- is more and more alone in its cowardly insistence that special, new tribunals must be invented, or denied entirely, for those whom it wishes to imprison as Terrorists (...) . 

I guess Obama really does believe in American exceptionalism after all. I just have the feeling that clashes are inevitable for how long can a president grandstand about being far superior than his predecessor while imitating him? May be the answer is forever for it is starting to occur to me that Obama might actually be the son of God.

Criminalizing psychological abuse

Lizzy Davies on the new French law designed to criminalize psychological abuse:

French MPs have voted unanimously to make "psychological violence" within a couple an offence punishable by up to three years in prison as part of new measures aimed at improving protection for victims of domestic abuse.
Politicians from the left and right supported the passing of a law which singles out "repeated" verbal actions intended to hurt the victim's rights and dignity or their physical or mental health. As well as a jail sentence, offenders could be ordered to pay a fine of up to €75,000 (£66,600).
Supporters of the law claim an estimated 8% of women in France are psychologically abused by their partner. Chantal Brunel, a member of Nicolas Sarkozy's majority Union for a Popular Movement (UMP) party, described it as "a preventative measure as psychological violence always precedes [physical] blows".

This measure is not only stupid but potentially dangerous for two simple reasons.The first reason is that the law doesn't exist to punish every single appalling behavior, but rather to control and to eradicate explicit behaviors that are clearly definable. We live in an age where politicians when they are out of the idea write up laws to please categories of people in order to have the whole society nod in agreement without thinking about the consequences of their actions and about the burden that they put on the judicial system to deal with societal problems when it isn't its role to do so. One just has to look at the way judicial systems deal with rape for example to realize that the problem isn't never really the law, but social attitude toward sex, gender, and sexual violence.
The second reason is the most obvious one and it is that psychological abuse here is defined by its consequences  (for there isn't any other possible way to define it). Those consequences when they are atrocious,  are usually already punishable by laws. In other words, this law is dumb, opportunistic and more importantly dangerous. Experience shows that in cases where there is psychological abuse in a relationship, there are also other visible signs of trouble, which society can use to intervene if it is serious not about protecting women,  the victims and emphasizing the fact that violence is never a private matter.
Lastly, there s another element here that bothers and it is the strong implication that this problem is a women issue. I find that reprehensible because it is part of the problem for it is always easier to dismiss or to shut down necessary conversations in a society on  critical and defining issues with dumb and inapplicable laws when they are characterized as "women issues" because then, the tacit assertion is that they are on the fringe of society and that the focus needs to be on visibility, flashy solutions and not practical ones.

The Others

No comment necessary to discuss this "it is US against Them" mindset illustrated by Marty Peretz's comments except a brief one to wonder about its policy implications and its usefulness, well maybe those are just foolish/wimpish considerations:

Why are so many liberal Democrats reluctant to concede that there is an intricate international network of ideological gangsters who recognize each other as ikhwan? These brothers do not define themselves by nation. They define themselves by religion, although there are many hundreds of millions of Muslims who are defined out--and define themselves out--of the bloody fraternity of the faithful. Sometimes, they too are stigmatized as enemies, which means they are also targets. And, of course, there are the boundaries of sect, in which Sunnis commit mass murder of Shi’a at prayer (and vice versa).
Then there are the other designated victims: outsiders … us. Not just Westerners and certainly not just Americans. Or Jews, for that matter, although they have a very special place in the demonology of Islam, and particularly in the armed demonology of Islam. Jihad.

Official high priests of intelligence and American presidents

Sugary excerpt from Jurek Martin's review of Garry Wills's Bomb Power:The Modern Presidency and the National Security State in the Financial Times:

The cult of secrecy has afflicted every president since, not merely the paranoid, such as Richard Nixon. Even Jimmy Carter was not entirely immune – the abortive 1980 rescue mission to extricate the US hostages in Tehran was executed without advising even his secretary of state, Cyrus Vance, who resigned. Wills is particularly hard on the Kennedy brothers’ obsession with deposing Fidel Castro, a mindset so blinkered that it failed to acknowledge the reality that Cubans liked their president (ditto Salvador Allende in Chile, etc). That fits with Robert McNamara’s much later admission that the US knew nothing of Vietnamese culture even as it was losing nearly 60,000 troops in the war.

Presidents, Wills persuasively argues, have fallen into the trap of listening only to the official high priests of intelligence. Those without prized security clearance are somehow considered inferior, if not ignorant, even if proved right. That was the proposed sanction against Oppenheimer for opposing the development of the hydrogen bomb. To be in-the-know is to be omniscient. The Pentagon Papers, the in-house review of the Vietnam War published only after the Supreme Court so ordered, contained no state secrets. But they were highly classified and thus, for government, unfit for consumption by friend or foe.

But the organic growth of the national security state needed theoreticians and they comprise Wills’s large Hall of Infamy. It was the (ironically conservative) Reagan justice department, under attorney-general Edwin Meese, that developed the theory of the “unitary executive” – which basically says that the law is anything that the president says it is. This produced a welter of “signing statements” in which a president says he can disregard, for whatever reason, any section of a duly passed congressional bill he has just, er, signed.