The Republic of Dissent

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 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.

The Swiss are always ahead of their time

To the contrary of Yann Moix, I like Switzerland very much even when I'm wondering whether the Swiss aren't too progressist or too modern when I read stories such as this one:

All eyes will be on Switzerland next month when it holds a referendum on whether animals should be given the constitutional right to be represented by lawyers in court - human lawyers that is!
Voters will decide this issue on March the 7th. If it becomes law it will be the legal responsibility of each region to appoint a brief to represent any pet or farmyard animal in cases of alleged abuse.
You can just imagine the scene in court. "It's my contention my Lord that my client... er ... Mr Horse was tethered by his neck to the stable gate for many hours without water." Now i' m against all forms of animal cruelty but do animals really need to be given their own legal representation?

May be I just don't get it because I'm not an animal lover,. The reason for that fact is that I have the strong conviction that it is cruel and inhumane to force something to be your pet when it can't say no.

Unlawful intimacy

I'm listening to a great program from Radio Four on Rape and current attitudes toward it  (hat tip: Feminist Philosophy). What has baffled me so far (I'm not done listening) is the suggesting by the only woman on the panel that there ought to be a different category for "a sexual assault" that does not happen on street and where the woman is attacked by a complete stranger. She suggests the use of the express "unlawful intimacy."  Another illustration of the power of language, why not just use the expression rape rape rape rape to suggest that the guy isn't a barbarian and the girl might just be impure, stupid, manipulative, or simply unaware rouée .

Torture and other niceties

I agree fully with Adrian Hamilton on this: 

Torture isn't a matter of niceties. You can argue the circumstances in which you might feel it useful or even necessary. You can try and épater le bien-pensant by writing "A Modest Proposal for Preventing Poor People in Britain from Being Endangered by Torturing Their Children and Their Mothers", only without Jonathan Swift's wit or intention to satirise.
You can sincerely believe it right to cripple the grannies and dismember the family pets in what you conceive of the greater community good. What you cannot do, as the Government is trying to, is get around the fact that Britain, along with most of the developed world, has decided to ban the practice.
And for good reason. After centuries of abuse, torture has been found to be neither productive nor containable. It rarely provides accurate intelligence. It produces fantasy and misleading information born out of the desperation of the victim. For all the discussion of the "ticking time bomb" and the films of Dirty Harry and Spooks, there is no reported case where an explosion has been prevented because of the use of torture.
What its proponents never like to answer is the question of just who would decide who should be tortured. The answer, of course, is the "state". And once you add that to the equation you are on a straight line to General Pinochet, Saddam Hussein and all those other characters whom successive British governments were wont to support in their heyday.

Grand Frère France

This worries:

The lower house of the French parliament has approved a draft bill that will allow the state unprecedented control over the Internet. Although the government says it will improve security for ordinary citizens, civil rights activists are warning of a "new level" of censorship and surveillance.
For members of the French administration, it is a law against digital crime. For civil rights activists and politicians from opposition parties, it is a plan for censorship that excites fear and loathing -- and even conjures up the specter of Big Brother and the surveillance state.
The lower house of the French parliament, the National Assembly, passed the first draft of the bill, known as "Loppsi 2," on Tuesday. It will now go on for a second reading in the Senate, where it seems likely to pass, thanks to the government's majority. If the Senate approves the bill, the new law could come into force as early as this summer. The legislation could have far-reaching consequences: Loppsi 2 contains rules that would make France the European country where the Internet is subject to the most censorship, regulation, control and surveillance.

What gets to me is how easy Loppsi 2 was to pass. This frightening fact underscores two critical reality about France. First, Internet has become the fundamental political,cultural and economical tool, which political, cultural, and economical elites want to control before it undermines totally their influence and their ability to remain "the ones". Second, there is no organized and vital opposition to Sarkozy despite his increasing unpopularity. Whatever one can say about Sarkozy, he has total control of his side while the opposition whether it is in civil society or elsewhere is too busy focusing about what they don't like about each other as if it matters since they don't have any power without offering a credible alternative that would at least tear down the new myth that there is no alternative to Sarkozysm.

Legalism and the definition of just wars

Brendan O'Neill has a thought provoking article on Elizabeth Wilmshurst and her arguments for the illegality of the Iraq war:

There are three irritating things about this strictly legalistic opposition to the attack on Iraq. First, it is delusional. It is based on the massive self-deception that international law and its brave defenders and practitioners – lawyers – kept the world in tip-top shape until that cowboy George W Bush and his heel-snapping poodle Tony Blair came along and ruined everything.
(...) The second irritating thing about the legalistic opposition to the war in Iraq is that it is deeply dishonest, duplicitous even. Many of those who moan about the illegality of Iraq were fervent supporters of the NATO bombing of Yugoslavia in 1999. Yet that futile and fatal intervention also did not win the support of the UN Security Council, and thus was ‘illegal’. A Guardian writer penned the 10 Days to War drama, and the Guardian has been singing the praises of Wilmshurst’s performance at Chilcot over the past week. This is the same Guardian which in 1999 slated those who said Bill Clinton and Tony Blair should wait for UN backing before bombing Yugoslavia. The UN is not ‘the only legitimate law-giver’, the Guardian insisted. Indeed, the UN constitution is a ‘recipe for inaction’, and ‘its imprimatur cannot be the sole trigger for international action to right an obvious wrong’.
The third and most irritating thing is that the legalistic-not-political critique of war (well, of certain wars) is inhumane. Judgements about military interventions are made, not from the basis of what is good for humanity, or from any analysis of what terrible consequences the war might have for those on the receiving end and for international peace more broadly, but rather from the lawyerly approach of making sure that all the boxes are ticked and all the right procedures were followed. Legal niceties are elevated over people’s lives, over questions of democracy, sovereignty, stability, equality.

I agree with O'Neill on his main point that the law isn't the main tool to define just or rather unjust wars, that other factors have to be taken into considerations, and those who fail to at least, accept that the complexity of the concept of "just war" are ideologues and hypocrites. I think that even if the Iraq war could have been justified (my feeling is that it couldn't have been, but I'm willing to consider the possibility that I'm wrong) under the international law principles established by Wilmshurst and others, it would have still been an unjust and I'm making this statement, of course, with the help of hindsight. The main reason is that it was both unwinnable,  unnecessary, and too expensive since its most touted accomplishment is the overthrow of Saddam Hussein. International Law is a tool among many other indispensable to determine the justifiability of a war. If the French without the backing of the UN had intervened and had stopped the genocide, what would be the argument of legal scholars today who wouldn't have a crystal ball to know that that unlawful intervention had stopped the dead of hundred of thousands innocent people. The point is that even as a lawyer, I'm forced to accept the despairing realities that laws are minimal, but essential tools to address grave societal problems and that more often than not it doesn't provide an acceptable solution to issues, which politicians and the people should have the guts to confront directly.

A beer and six cane strokes

Thought-provoking story in Der Spiegel about a woman in Malaysia sentenced to six cane strokes for having a beer in a hotel:

The whole thing began in July 2008. Kartika took a long weekend trip to a beach-side hotel in Malaysia with a few friends, a relaxing break from the stressful daily grind. Her husband, Muhammad Afandi Amir, watched the children while she was gone. Born in Singapore and a member of the country's Muslim Malay minority, he makes his living as a computer technician.
In the afternoon, Kartika checked into the Legend resort hotel in Cherating, whose slogan is "discover heaven on earth." The hotel has an international clientele, so the six guests from Singapore aroused little interest when they met up in the hotel bar in the evening and ordered a small Tiger Beer each.
Beer is available throughout Malaysia. The 7-Eleven convenience store chain, for example, offers nine different varieties, from Singapore's Tiger Beer to Guinness from Ireland and Carlsberg from Denmark. About 26 percent of Malaysians are of Chinese descent, while 8 percent are of Indian descent and 12 percent belong to indigenous populations. The alcohol ban affects only the Muslims, including the 53 percent of the population who are Malays. These last are the group that has steered the country's fortunes since its independence. Shariah law also affects only the Muslims, and is enforced especially strictly in three of Malaysia's 13 states. The Legend hotel is located in one of those three: Pahang.
The young women in the hotel bar raised their glasses to each other at around 6 p.m. Kartika was the only Muslim in the group -- the rest were Chinese and Indian. None of them seem to take particularly seriously the strict alcohol ban that applied to Kartika. The waiter didn't seem to care either; at least, he didn't ask to see her identity card, which would have shown her religious affiliation.
Half an hour later, religious police came storming into the hotel foyer. Was it a routine check? Or had an informer in the hotel blown the whistle? Kartika was the only one brought in to the station, where she had to give a urine sample. The police questioning lasted until 6 a.m. And at some point during her interrogation, Kartika admitted to occasionally posing for advertising photographs in Singapore. The keepers of the country's religious code were suddenly all ears.

Poland, France, and Anti-Semitism

Interesting comparison between Poland and France and the way their society deals with anti-Semitism from Konstanty Gebert;  he seems to imply that France deals well with Anti-semitism I disagree strongly with him because I don't think that laws can eradicate bigotry, on the contrary they tend to victimize the bigots thus giving them  too much of the spotlight, which enable them in turn to become larger than the hate they spread:

Because Polish anti-Semitism is as widespread as it is skin-deep. Let me explain. Take France. In France they had very strong laws against public expressions of anti-Semitism. If you express anti-Semitism in public you can be seriously penalised. This doesn't necessarily affect what Monsieur Dupont says at his dinner table (and I've sat at some of those dinner tables – I know) but in public if somebody makes an anti-Semitic statement you'd better believe he or she is serious, because they are willing to take the rap.
In Poland, anti-Semitism is not penalised, period. Just recently, the public prosecutor in the town of Krakow closed the investigation into soccer fans yelling "Gas them!" to the fans of another club which is labelled as Jewish because, historically, like 70 years ago, it had been Jewish. So they yelled "Gas them," and they yelled, "We'll always triumph over you, you fucking Jews," and the public prosecutor decided such contents do not constitute a crime and dropped the case. And this comes in the wake of similar statements by different public prosecutors. So anti-Semitism isn't penalised, therefore it becomes a convenient venue for the expression of frustration. So if somebody says in public it's all the fault of the Jews and they should be kicked out of the country, this does not necessarily mean, as it probably does in France, that he is a dyed-in-the-wool and dangerous anti- Semite. It might mean that he had a bad day at work, full stop. This is no less excusable morally...

Perplexed and saddened by BHL

I respect Bernard-Henri Lévy (BHL). I don’t always agree with him, but I have never thought that he was a man without substance. Therefore, I’m disappointed to see that he is supporting Polanski by using arguments that he himself would find laughable and disturbing in he weren’t so close to the situation. I was listening to him on Tom Ashbrook’s radio show On point yesterday and I had to wonder if people who are willing to defend Polanski at all cost have any credibility left on any other issue whether it is a moral, a social, or simply a political one. I’ not sure that I will be able to listen to BHL discussing other subjects such as Iran, French politics or anything else and wonder whether he thought what he is saying through or whether he is just too close to the trees to even imagine that there might be a forest there. BHL recently wrote, a book, Left in Dark Times, about the sad state of the extreme left in which he argues that that left was vanishing because of its willingness to give up its moral compass to save its dying ideology. Listening to him today, I wonder if the decay is further along and more widespread than he thought. It seems clear to me the elites and the creative class in the most modern of our societies only people believes that the law and other societal norms don’t apply to them because they are on top because they are good, better people and therefore do not need to be judged and tread as the masses. Because it is clear that BHL is supporting Polanski because he is Polanski and therefore cannot be responsible for any indefensible (morally not legally) action and should not be condemned because he has given so much to society with his craft.

Biases and biases

Chris Dillow has a great post on the supporters of Roman Polanski and the problems of the arguments that they use to defend him. Sugary excerpt:

Having decided that Polanski is a good man, people refuse to believe that he can have done a bad thing: “It wasn’t rape-rape” says Whoopi Goldberg.
The error here is to exaggerate the extent to which character determines actions, and to fail to see that good people can do bad things under certain circumstances. It’s in this context that Polanski’s being a victim of the Holocaust is ironic. That episode teaches us that ordinary people can do atrocious things.

What I have been wondering if whether the reactions be different if the illicit act, which Polanski had, to use an euphemism, had been with a boy of 13 instead of with a girl of the same age. Would people be as willing to argue that it wasn't rape rape and that the child in this case in some way agreed to have sex with the charming genius so wounded by fate? My answer is a resounding no because people in our societies are most willing to fight back against the sexualization of little boys than the one of little girls. To put it differently, Michael Jackson would have had better luck escaping wide spread public condemnation if his accusers had been little girls because there is within our society the accepted belief that a girl's body can provoke/awaken the sexual desires of manly men.

Disgusting mise en scène

Bill Wyman has a great article on the Polanski Affair, the salacious documentary that confirmed the fanatical belief of many of his admirers that he was the true victim in this care, and on the role that the media plays in this case. Disturbing sugary excerpt:

In "Wanted and Desired," it's weird how detached Zenovich [the director] stays from the victim, and how she undermines her in subtle ways. The tone is set early on, when a friend of Polanski's tells of being woken up and informed that the director had been arrested. The moment is actually played for laughs, with interspersed shots of a worried Mia Farrow using the phone in a scene from "Rosemary's Baby."
A filmmaker attuned to the psychological undercurrents of the characters in her drama might have been conscious of the state of a 13-year-old girl, who had just been drugged and raped and had spent the next period of time at a police station reliving the incident; and shaken by the story of "Rosemary's Baby" -- that, too, about a horrifically abused woman.
But the scene isn't used to illustrate the victim's story -- it's about poor Roman. He's the person making the desperate phone call. It's an odd juxtaposition when you think about it. That's when the friend, having just been told Polanski has been arrested, says, "This is somebody who could not be a rapist!" Here again, Zenovich is playing with semantics. It's obvious the friend was saying he couldn't imagine Polanski, say, following a woman down the street and grabbing her in an alley.
If Zenovich wasn't tipping the scales in Polanski's favor, she could have asked the guy, "Well, what about statutory rape, having sex with an underage girl? Could you imagine him doing that?"
We also hear people note, meaningfully, that meeting someone like Polanski could help a potential young actress's career. Such a remark about a grown woman would be slightly offensive; about a 13-year-old it's exceedingly so. The girl told police at the time she had repeatedly told Polanski no; on the screen Zenovich runs a line to that effect from the girl's grand jury testimony, but immediately follows it with a quote from Polanski's: "She was not unresponsive." This creates a subtle he-said-she-said dynamic that, in a case in which consent isn't a issue, represents another bit of moral prestidigitation.
It's strange to see a female filmmaker anchor her documentary's arguments with such atavistic attitudes. It gets worse: In the media circus of the time, some of the European press reported that the victim hadn't been a virgin.

I feel dirty just hearing people doing everything to justify having sex with a 13 year old girl just because they love the movies or are moved by the personal history of the man who had sex with her. In many less developed countries. perverts who have sex with little girls always argue that their victims are women, that they provoked them, that they wanted it or that they weren't pure anyway. I guess that we can no longer argue that the "West" cares more women than the rest.

Justice for all

I agree with this:

It is easy for people to be swayed by considerations of personality in such cases as the Polanski arrest. In general the law does well if it addresses itself to individuals and their circumstances rather than imposing rigid blanket laws that contradict justice as often as they serve it, precisely because they ignore the special individual circumstances. But with the great crimes of rape, murder and genocide, prosecution and punishment are about society’s struggle to protect itself now and in the future against the worst aspects of its own members’ behaviour. There is room for a degree of compassion towards prisoners even if they have committed monstrous crimes, but there is no room for failing to punish the crime itself.
In line with these thoughts, and with the regret that comes from having to acknowledge yet set aside two things, namely the existence of human frailty and the contribution gifted individuals such as Roman Polanski make to society, I conclude that it is right that the United States authorities are seeking to extradite him to serve his sentence for rape. Neither fame nor wealth, neither time nor distance, should render anyone immune to laws protecting against serious crimes against other human beings.

Sex crimes and hypocrisy

I can't muster enough energy to be outraged about the arrest of Roman Polanski in Switzerland. I don't have any bone in this fight, but what gets to me about this  murky affair is how much it demonstrates that sex crimes, especially in America where morality can't be separated from anything, aren't about the act, the sex but about, sorry to be crude here, but I believe that crudeness is necessary in order to get my point across, who got fucked, who did the fucking, and how society feels about these people. What do Polanski, Michael Jackson, R. Kelly have in common ? If your answer is nothing, then you must be living in a world where Obama can still walk on water or where God chose Bush over Gore. Can we please be consistent or at the least stop to act as if societies, no matter how modern they are, view certain sex acts as criminal for all their citizens. I'm trying to say that when it comes to sex, the views of most societies are not only sexist, but elitist. I'm not worry about Roman Polanski, he is going to be just fine even if  he is shipped to California.

No escape from race

Stanley Fish commenting on the Supreme Court's decision on Ricci v. DeStefano, which involved the city of New Haven (Connecticut) deciding to toss tests in its fire department to become lieutenants because all of those who passed it were whites and the Court deciding that its act was unconstitutional since the test in this case was legally sound:

Not only is there no escape from race; there is no possibility that those who are obsessed by it — everyone in this case — can ever find the peace Scalia imagines in some nebulous future or the complementariness Ginsburg incorrectly assumes in the present.

If Fish is right, then the world is and is going to be, for a long time, a sad and maddening place. I think it's important to wonder if Race (particularly in America) isn't about something other than race.

The brilliance of parliamentary government

Signs of modernity..:

Catherine is an activist at the International Union of Sex Workers, which has for years, together with other groups like the English Collective of Prostitutes, organised press briefings and public meetings. In the face of this bill they met MPs, gave evidence before committees, and presented data (which the government had not released) showing that while blanket laws against buying sex don’t stop trafficking, they do make identifying trafficked women harder. The cops say information on possible victims often comes from punters, who are hardly going to go to the police if threatened with arrest. Hookers, health workers and cops also oppose the bill’s attempt to ban brothels; working alone is a lot more dangerous than sharing a receptionist and a maid with other prostitutes.
Such lobbying seems to have done the trick. The amended bill now allows two prostitutes to share premises and take bookings through an agent, while ensuring that men who buy sex from women who sell it willingly will avoid prosecution. It still contains some elements that are unworkable, bordering on idiotic. If a prostitute tells a client she’s a willing seller and later turns out to have been lying, the client can be jailed. But with the efforts of Catherine and her friends some of the remaining silliness may get ironed out. The fact is that people who work in the sex trade are beginning to influence the laws that govern them. Some may think this is no way to run a country, but I’ve yet to see a better idea.

On vengeance and justice

I find Norm Geras's following point on vengeance and justice thought-provoking:

(...) justice is not exhausted by the aim of retribution, by its punitive purpose. It must pay attention to the possible rehabilitation of the wrongdoer. Furthermore retribution, and therefore the retributive element within remedial justice, is not the same as revenge. The desiderata of proportionality and, where appropriate, mitigation mean that just punishment may not be excessive, where revenge sometimes is excessive. It 'may' not be, in the sense both that it isn't justified if it's disproportionate and so must not be, and that in certain circumstances it is permitted to be less severe even than what would be proportionate and so could well be.

Last week, I wrote that I thought that the Madoff's sentence wasn't punitive. What I meant wasn't that he should have received more time in jail, but rather that the condemnation didn't punish his crime in the sense that it was inadequate and that it didn't serve any purpose other than to shatter the few years that he has on earth. The American system of justice is so obsessed with the idea of retribution that it focuses rarely on doing the right thing or rather on incorporating other ideas such as remedial and reformative justice in its sentencing on the people found guilty. I don't think that that Madoff spending the rest of his life in justice accomplishes anything moreover, I think it jut shows that America doesn't know how to deal with his crime and encourages that the idea that white collar crimes are crimes that can pay.

Punitive sentences

Bernie Madoff is getting over 100 years in jail. Somehow, this sentence just feels shallows to me . It isn't punitive. It doesn't even serve as deterrent for all the crooks out there. After all, if you can steal billions of dollars, live the life of a super-rich most of your life and then just spend your old age in jail, why wouldn't want to be Madoff and try to f**k, beat the system?

Le net

David Post has an excellent post on France, the EU and Internet Speech, which is a must-read. My only criticism is that it asks more questions than it answers. The reason for that is that we are at a time where nobody quite knows where the law will go if the two options concerning Internet Speech remains between total freedom and censorship.

The glitz of minority status

This assertion from Elaine Lafferty is hilarious, but it also exposes a truth, which worries me almost as much as it makes me uncomfortable:

But here’s the good news for those doomed identity-less white guys. You actually do have an identity! You are in fact a minority in America. Embrace your status, file a brief, find your own voice. Because judges like Sonia Sotomayor, what with their identity and their empathy, who have spent a lifetime outside your members-only clubhouse, may be more willing to listen to you than you ever thought possible.

Race, identity and islands

Rex Murphy in the Globe and Mail on Sotomayor, America, and Identity politics:

Ms. Sotomayor is a nominee, on the other hand, because identity politics - like to like, even in “postracial” America - is still a prevailing dynamic. (...) And it is Ms. Sotomayor's “identity” in this sense that both she and the President regard as critical. Ms. Sotomayor has made it abundantly clear that she regards her Latino roots (and gender) as determinants of her way of seeing things. “Whether born from experience or inherent physiological or cultural differences ... our gender and national origins may and will make a difference in our judging.” The key, startling word there is “inherent.” She's claiming (among other characteristics) that an “inherent physiological” difference “may and will” shape her view. Claiming that judgment or reasoning is even partly conditioned by inherent physiological elements of one's ethnicity is very odd.
It is very close to, if not the same as, saying that there is innate, in her ethnicity, qualities that make her a better judge. Which she seems to claim. For in the same lecture from which I'm quoting, she concludes “... I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life.”
(...) Identity politics is a closed circuit. It shuts the door to other experiences, even denying the possibility of transcending them. It is the very contradiction of empathetic power.
(...) Diversity, in the American case, seems to be turning on itself. Every group is an island of difference and there are no bridges. Unless you are of the group, you cannot “understand” it. And it has led, at least in Ms. Sotomayor's words, to a curious world where ethnic and gender characteristics are posited as the determinative basis of “superior” views, of people contained within their identities.

I'm open-minded on the "Sotomayor" issue even though  I'm uncomfortable with the roles that race and empathy  play in the nominating process, which shows that the whole post-racial thing was just an electoral gimmick. I am less interested in who Sotomayor is than in what her views are and I think that the issue here comes from the fact that there is no longer a difference between views and being and that in America, it is still assumed that one's race and ethnicity determines one's being.