2007 Academy Awards

The NY Daily News provided a handy two page Oscar Ballot, providing an opportunity to check off the winners as they came. I shall go thru the list and comment on the relevant happenings.

Overall, the show had a decent feel, which seems to be the norm the last few years. Ellen was a comfortable host, which is her thing. Nothing special, but I saw the whole thing (a rarity really of late), and it went down smooth enough. Take from that what you want. Cute use of performers behind a screen to form shadow snapshots of things like the Oscar statute. They did away with the dance numbers when people realized no one really cared for them. This was cute and quick. The comedian number with Jack Black et. al. was amusing too.

Martin Scorsese finally got his. Not really into his movies, so that didn't faze me too much, but it's notable. A bit surprised Clint Eastwood didn't receive one of the big two, though often a movie wins big (The Departed won picture, director, adapted screenplay, and editing). The two expected actress winners won, providing nice speeches, each to her style. The audience favorite, Peter O'Toole, did not win for Best Actor. Forest Whitaker, however, did have a remarkable little speech ... damn thing was deep.

And, Pan's Labyrinth was robbed ... it deserved Foreign Language Film, especially since some think it was actually the Best Picture (deserved a nomination; I didn't see it, but I doubt Queen was better). It did win some technicals. Technicals, and going away from the norm of putting Best Supporting Actress first (the young ingenue won ... how surprising) various ones were announced first, do deserve special note. We often go to the movies for the look and sound. We can see stars on television. Toss in a reason to get out of the house, and you have a chunk of the reason we go to the movies, right?

On a lesser note, Flushed Away probably should have been nominated for Animated Feature. Were Monster House and Cars really both better? The expected song (three songs from Dreamgirls, split ticket, and the Meryl Streep of songs ... Randy Newman number, lost) and documentary won ... Al Gore, sigh. Notable night for lesbians. It was a passing thing, but Melissa Etheridge thanked her wife. Ellen, of course. And, Judi Dench (who didn't come) played someone who clearly is meant to be considered a lesbian.

A charming thing that the Oscars give is to provide little known people their moment in the sun, watched by a billion people worldwide (wow). The women who won for editing and costume design had nice moments, one showy, the other more quiet. The winner for Best Live Action Short provided an excellent summary on the charm of the medium and what it offers struggling film makers. And, someone even got a chance to provide her thanks in Chinese. There was an international feel this year.

And, Pirates of the Caribbean was the winner of the "lame movie who still won an Oscar" award ... Best Visual Effects. Same as Queen, Babel, and Letters From Iwo Jima, 60% of the Best Picture nominees. (Dreamgirls got Sound Mixing and Supporting Actress; Little Miss Sunshine Screenplay/SA ... and lots of awards before yesterday) Still was lame. Did look good.

Oh, it did run late. Tradition, you know.

Academy Awards

The NY Daily News informs us today that an ancestor of Al Sharpton was a slave for the Thurmond Family. Talking about the departed, I offer this in honor of the Oscars.

Enabling Violence

I appreciate the need for thoughtful review of legal cases. Nonetheless, it's just astonishing to me that no one in our government seems to have any sense of urgency about these cases. There are people in Guantanamo who have been there for five years without any remotely adequate proceeding aimed at determining their guilt or innocence of any crime, or any act of hostility against the US. Many of them were arrested far from any battlefield. In some cases, they were sold to us by people interested in collecting bounties. They have been held for years without being able to communicate with the outside world, sometimes in appalling conditions: solitary confinement, for instance.

It is past time for someone in our government to say: enough; we need to either try these people or let them go. Keeping people in prison without charges for over five years is not acceptable in a country that claims to respect the rule of law.

I realize that the courts are probably not the body to do this. Still, as I read that the detainees' rights have been denied yet again, that another appeal is expected, that it probably won't happen during this Supreme Court term, and so on ...

-- Hilzoy

She speaks of the lower court case I recently cited that upheld the MCA, denying habeas to non-citizens (and even putting citizens at risk) held in Gitmo. I do think the Constitution limits the government here. The material was there, and not just for the dissenting judge, to take the approach of Canada: "Precisely what more should be done is a matter for Parliament to decide. But it is clear that more must be done to meet the requirements of a free and democratic society." Canada might have less of a dog in the fight, but with power comes responsibility. This includes avoiding torture,* mistreatment, and blatant disregard of due process for "persons." Seems bloody obvious, even if the Constitution didn't demand it.

Robert M. Cover, who wrote Justice Accused discussing the assumed "compelled" nature of antebellum judges furthering slavery right and left, once wrote a journal article entitled "Violence and the Word." (h/t) In it, he noted that judges are persons of violence. We must realize the "violence that would flow from the words ... how [their] words were translated into deeds." Yes, their power is limited. Just not as limited as their "formalist" protestations sometimes warrant.

At this point the Court can no longer refrain from acting. I will not be a partner with other government officials in the apparent disregard for the constitutional rights of these inmates. This Court will not ignore its sworn duty to protect the constitutional rights of all citizens. I issue the following Order with the highest respect for the other branches of government, but with the deepest concern for the situation at hand. I am still hopeful that others will cooperate in seeing that the changes needed to meet these standards are implemented. This Court will not shy away in the face of charges of judicial activism when it acts to protect the fundamental constitutional rights of the persons protected thereby.

-- Barnes v. Government of the Virgin Islands

Cover cited this case from the 1970s (the piece was from the mid-1980s; Cover has since died, some might say too early) involving mistreatment in the penal system. The judge could do little, and the opinion noted rightly so under our system and given the abilities of the courts, to truly reform the system. But, he could do something. He could not give his imprimatur, which does mean something in this country (even Bush v. Gore). Also, he could threaten not to sentence non-dangerous sorts to a system that is unconstitutional. Due process required others, but he had a role to play too. And, an extreme path to take to encourage others to properly play theirs.*

Likwise, Cover cites the fascinating case spelled out in Judgment in Berlin, where a federal judge in a special court held in West Berlin (under U.S. control) refused to sentence a person to more than time served, since the court itself was at the mercy of the executive, who promised to close shop. Who knows if the person, once in prison, would be properly handled without a judicial check? Sounds a bit familiar, even in his day:

In a sense the situation was one of de jure lawlessness. But Stern's reasoning reaches beyond the case at hand; it may be extended to include, for example, the de facto state of lawlessness that attends life in many United States prisons. Institutional reform litigation -- whether applied to prisons, schools, or hospitals -- entails complex questions of judicial remedial power. Very often these questions are framed around problems of discretion in the administration of remedies. When deciding whether to issue an injunction, judges often "interpret" the law in light of the difficulties involved in effectuating their judgments.

And, on torture:

The deliberate infliction of pain in order to destroy the victim's normative world and capacity to create shared realities we call torture. The interrogation that is part of torture, Scarry points out, is rarely designed to elicit information. More commonly, the torturer's interrogation is designed to demonstrate the end of the normative world of the victim -- the end of what the victim values, the end of the bonds that constitute the community in which the values are grounded. Scarry thus concludes that "in compelling confession, the torturers compel the prisoner to record and objectify the fact that intense pain is world-destroying."

Cover is agnostic in his article on the need for such violence, but surely the nature of his work overall suggests he was quite dubious about various applications. It is deeply troubling how we, with some hard feelings, basically accept this path. Accept keeping people in some hellhole nearby, often with the clear possibility that they didn't even do anything wrong, without basic humane treatment and process. Some basic bottom line is missing here. Some basic demand that some things must not be done. This is so even in cases like Hamdan where some nice words are supplied limiting power and reaffirming rights.

But, the people are still there. We, including the judges, are furthering injustice. When will we as a nation truly find this simply disgusting?

[The two books cited above were pretty good, though the writing was at times a bit off-putting. I mentioned them in the past. Stern's story, later made into a film, has the makings of a legal thriller. The law review article had some powerful material, but was a bit of a slog at points.]

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* "He was kept in a 9-by-7-foot cell with no natural light, no clock and no calendar. Whenever Padilla left the cell, he was shackled and suited in heavy goggles and headphones. Padilla was kept under these conditions for 1,307 days. He was forbidden contact with anyone but his interrogators, who punctured the extreme sensory deprivation with sensory overload, blasting him with harsh lights and pounding sounds. Padilla also says he was injected with a 'truth serum,' a substance his lawyers believe was LSD or PCP."

** There can also be a hortatory flavor to court opinions. Thus, this one begins with a cry from the heart:

We simply do not know what to do with persons who are convicted of crimes, nor do we appear to know why we are doing whatever we do. ... The least pleasant task of the generally rewarding position which I presently hold is that of imposing sentence on a person who has been convicted of a crime. I cannot realistically expect that when that person has served whatever sentence I impose, that he will be any better off for having done it. I agonize over each such decision, wondering if the course I take will simply commit, rather than dissuade, that person to a life of crime. Nor is it likely that society will benefit in any significant sense, regardless of the course I take.

And Also

Tom Vilsack (who? wait, wasn't he on John Stewart once?) became the first to declare and resign from the race for presidency. Not enough money out there. Oh, he had no chance to win after Obama entered the race. Yeah, that was the problem. As to my last comment about The Class, perhaps it is a failure to trust viewers would stay to watch a slowly developing series. Note that one member of the cast was on the show Related, one that deserved more time too. The Independent Spirit Awards, especially the song parodies for the Best Picture Nominees, was pretty good. The songs were hilarious.

Punitive Damages

The punitive damage system does lead to arbitrary windfalls to individuals to provide broader incentives, and on balance I would prefer the European regulatory model to the American system, which relies more heavily on torts to constrain injurious corporate behavior (although obviously the more bureaucratic model also comes with costs.) ...

Whether it's optimal or not, punitive damages are a major method for constraining behavior that is contrary to the public interest in the American system. If legislatures want to limit punitive damages--whether to move to a more bureaucratic model of (much more likely) to make it easier for corporate donors to injure people without consequences--that's their privilege. But I don't see any basis for using a (to put it mildly) highly contestable reading of the Constitution to limit damages in the hope that a better system might spring up in its place.

- LGM

There is a book on the side panel that is strongly against the recent strand of punitive damage cases, arguing that the judgments were sound and that state courts did enough (if not too much) to reduce "excessive" awards. But, on the final page Stephanie Mencimer notes:

Americans ask a lot of tort law. It's supposed to provide a social safety net, a regulatory structure, and a justice system all in one. It can't do them all well; it's a miracle the system functions as well as it does.

Ah the rub. Punitive damages ultimately grow out of our views of individual responsibility, which includes use of the civil court system in a way that even supporters of the process find (admit) is problematic. One reader of this blog takes the apparently minority opinion that punitive damages are not only in effect criminal fines (punishment, not mere compensation, with a public flavor at that), but that this means that a higher standard of proof is required. Some like Justice Stevens support one, but not the other -- they push for careful scrutiny, including tests for "excessiveness," but not the arguably logical follow-up higher standard of proof that this suggests.

My tentative stance is that punitives have a mixed criminal and civil flavor, including those in which the state requires some part of the proceeds go to some public fund. It is often simply hard in some cases to divide civil and criminal, especially when the government is involved. For instance, some consider certain types of "civil" commitment not 'criminal' in nature, so less protection is required. But, what exactly is the point of punishment? It often is to protect society and rehabilitate, as much as we can, individuals. Forced confinement in mental institutions, perhaps because the person is a child molester, is not seen by the person involved as less than punishment, even if it is deemed "civil."

[I also think that the fact private persons are involved in most of these cases underline the "civil" flavor of things, or at least, the civil enough flavor to warrant somewhat less securities than those that are required in criminal cases. In those cases, the might of the state is involved, often threatening a loss of liberty. The fact corporations are involved also factors in to some degree, an offer of incorporation not a right, but a privilege that offer less security for loss. Cf. Arbitration clauses.]

Traditionally, punitive damages have been allowed, which gives them a flavor of respectability on due process grounds. One can only go so far there, of course, or we will defend criminalizing sodomy. Still, the latest case also raises a further point: what exactly is the point of punitives? Blocking the Courthouse Door is largely about depriving people of proper compensation. Compensation that might very well be better obtained by things like universal health care and adequate state enforcement. But, we take what we can get. And, many who want to reduce punitive awards want to supply less.

Surely, a case can be made that the Breyer/Souter/Stevens wing rather have both. And, if we are stuck with a flawed system, the lack of adequate alternatives doesn't warrant cheating, does it? Consider school vouchers. Some point to the inadequacy of the public school system as a reason why we need more funding of religious schools. The First Amendment difficulties involved are tossed aside as at best overtechnical liberal claptrap. Some critics of this approach note that vouchers only do so much, but many also point to the constitutional problems. IOW, the Constitution limits our options, even if we don't like it.

But, again, what does the system offer? Does the current line of cases improve things? Did the states, where most of these cases arise (though recent legislation and desire for more would push more things into the overworked lower federal courts), not properly regulate damage awards? Is using some sort of single multiplier (of compensatory damages as compared to punitives) instead of some other means (effect on the wrongdoer comes to mind) the best way to attack the "excessive" problem? And, as to other due process concerns, is the current path in the end that helpful? Unclear.

Back to compensation. What is compensation? Justice Stevens suggests that punishing one's wrongdoers includes cases when the civil penalty doesn't just go to the victim and is formulated based on harm to others [is it really news that this factors in? that is, lack of fair warning exists? and if it's wrong, is the majority's approach really that much better?]. Punitives generally are based on the reprehensibility of the action. The last case suggests, in some fashion, that it should be limited to the harm of those who bring the cases. But, we also hear of the deterrent effect of such lawsuits. Why? Often the people involved themselves won't be harmed again. Sounds like public thing. Not just the specific plaintiffs.

Like the civil justice system in general, they also provide a backdoor means to address harms that might be dealt with better in other ways. Maybe, compensatory damages are rather limited, intangible harms like emotional distress pretty limited or maybe not even existent in certain cases. And, if "emotional distress" and the like is compensatory, what $$$ figure is involved? Punitive damages start to seem almost redundant, in a fashion. Well, rather, they can be, if the system is tweaked in a certain fashion.

Ultimately, we have a situation here that underlines that the Constitution is not just for the courts. A sane damage regime would involve an overhaul of how the government handles things. But, until that happens, I don't think we should have unilateral disarmament, so to speak. Surely, we can regulate the punitive damage system. Time has brought more and larger lawsuits, partially given the continuing breadth of the problems. But, with size comes the need to regulate. This includes the court system, but again, also the industrial system that the civil system imperfectly tries to regulate. Would it not be best, however, if a sound public policy in general was involved too?

And, yes, democracy factors in too -- we have Presidents more corporate friendly or at least more wary of lawsuits, and members of Congress too. This brings judges in too; lest we forget, Stevens and Souter are Republicans, Breyer's* nomination opposed by Nader as another moderate Republican move by Clinton. But, the people -- though certain powerful minority factions use our distrust of the government and desire to apply blame when often impersonal factors are as much to blame (which shouldn't mean it's "tough shit" for the victim) -- also support that sound public policy I just mentioned. We need to get back a government that is forceful enough to truly offer it, not just be somewhat sympathetic.

Listening '08 wannabees?

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* Breyer has a tendency to "split the baby" that results in results that aren't quite liberal, which sort of reflects the person who nominated him. This approach, also practiced by O'Connor, tends to have a mixed result. It holds the course so that things don't go too far, whatever that means, but often results in conservative results given the current membership of the Court.

Abortion Thoughts

And Also: The Class (Mondays at 8:30) seems to be in trouble -- for instance, plot developments appear rushed, including relationship issues. Also, various supporting characters simply disappeared, though reference was made to them in recent shows. There is a "cancel" or "creative problems" flavor in the air. I like the show ... hope it survives and is worth it if it is.

We're in danger of going back to penumbra-land: the support for the equal protection argument isn't anywhere, but it could possibly be partially supported somewhere in theory, I guess.

See here. Yes, but then, there is nothing really wrong about that locale. This business being snarky about certain words is tedious. Does the word sound funny? Is that the problem? Anyway, yes, the argument on equal protection grounds can be made. In various ways. See also, the argument made in that comment stream implying legislators can choose among disputed religious doctrine on "human life" without raising various constitutional flags.

And, the failure to face up to the fact that this country really doesn't think protecting embryonic life is "compelling," even without factoring in legalized abortion per se. I don't know why I am drawn into these debates ... it takes too much energy sometimes to dispute such wrongheaded premises. Talking about that:

An ultrasound test showed she was between five and seven weeks pregnant. Acuna says she asked Turkish if the "baby was already there," and that he responded, "don't be stupid, it is nothing but blood." Acuna signed a consent form and had an abortion. She says she then went to the library, read up on human development, and decided that her doctor had ended her relationship with a child she'd named Andres.

In 2004, Acuna sued Dr. Turkish for medical malpractice, arguing that abortion providers have a duty to tell their patients that the fetus or embryo they are carrying is "a complete, separate, unique and irreplaceable human being" and that the "abortion did not prevent a human being from coming into existence but actually killed an existing human being."

See here, my comments here. Suffice to say, quite a lot of people don't quite think a "baby" is "there" at circa five weeks. Sounds like a value judgment ("irreplaceable" and so forth) plus doctor with a serious tact problem. And, a weird way of putting things (is it some sort of blood mass? nothing else?). Maybe, Dr. House, also of New Jersey, can add his .02.

Informed consent is essential, but she is asking for more. [Proviso: I am limited by the facts offered in the piece.]

Pair of Cases (and Interesting Dissents)

A punitive damages award, based in part on a jury's desire to punish a defendant for harming nonparties, amounts to a taking of property from the defendant without due process. A judgment rejecting a tobacco company's challenges to a punitive damages award against it in a negligence and deceit case is vacated where the Oregon Supreme Court applied the wrong constitutional standard when considering the tobacco company's appeal.

-- Philip Morris USA v. Williams

FWIW, the newbies on the Supreme Court joined in the ongoing practice of the Supremes regulating punitive damage awards. Given the procedural tone of the case, the ruling is arguably limited, though in such a way that "punitive regulator" Stevens found problematic. The question, though important, is a bit nice given how the majority split the baby. All the same, Stevens' dissent is interesting on broader grounds, including respecting the nature of punitive damages (cf. fines). Anyway, interesting breakdown of justices as well.

So long as the Executive can convince an independent Article III habeas judge that it has not acted unlawfully, it may continue to detain those alien enemy combatants who pose a continuing threat during the active engagement of the United States in the war on terror. See id. at 488 (Kennedy, J., concurring in the judgment); cf. Hamdi, 542 U.S. at 518-19. But it must make that showing and the detainees must be allowed a meaningful opportunity to respond.

-- Judge Rogers, dissenting re dismissal of pending habeas corpus petitions of hundreds of Guantanamo detainees.

Meanwhile, this is an impressive dissent, one that just might become law of the land, at least in part. The tendency of the majority to interpret liberty narrowingly, acting like the House of Lords (interpreting old English case law) along the way is downright dumb. Interesting use by the dissent of the logic that the habeas provision is a constitutional limit on Congress, not a security of rights per se. I think it does both and the dissent's cite of Federalist No. 84 suggests so too.

Meanwhile, detainees continue to rot.

Sunday TV Thoughts

And also: Via GG, check out the remarks of "Lt. Gen. William Odom[,] the former director of the National Security Agency under Ronald Reagan and head of Army intelligence." Included in his various remarks is the stupidity of the current strategy in Iraq, the original invasion, and the fact (live with it) Iran is going to get the bomb. Like when ex-Bush and Nixon hands say we need (or surely can) to censure and/or impeach the President, if only this sort of thing became acceptable by our "liberal" media and "Democratic" Congress. If only. Also, something for President's Day.

It seems that there is always some update for my computer, resulting in an extended download session that eventually does not work properly. Very tedious. While one was going on yesterday, I checked out what was on television. For instance, yet again, D.E.B.S. was on. This is a tissue thin mostly harmless movie concerning a top secret agency inhabited by teen spy girls in training, one of whom falls for an evil mastermind that happens to be a girl as well.

Also, Married ... with Children, which along with The Simpsons, was one of the few original FOX shows with some staying power. I liked the show, especially before it became a parody of itself around the seventh season (lasting that long for any show is quite respectable, especially for a show that appeals to the lowest denominator).

Kelly Bundy was an especially well created character. She was the seminal airhead blond bimbo with the heart of a street fighter ... and after a few years, really matured into the part (from jail bait to barely legal, to be crude about it). Of course, each woman on the show was sex crazed in her own fashion, including the next door neighbor Marcy ... earlier the love interest in Fright Night. As with another (male) sex crazed sort in an ongoing sitcom, it turns out in real life she is homosexual. And, though Al didn't think so, she was not bad on the eyes either -- as shown in an episode shown last night where her first wife Steve came back and tried to get her back. She fills a baby doll one piece fairly well.

Meanwhile, the final episode of the Supreme Court documentary played on one of the PBS stations. Rehnquist was the focus with a nod toward Brennan (and O'Connor) as well. An early segment covered Roe v. Wade, which (almost by mandate) required me to scream at the screen at least once. [I did see Anita Allen, a contributor of a book on what the opinion should have said, one of the better ones at that. Turns out she is black.] That is, when an educated law sort -- the author of an entertaining and well written book on the Warren Court -- promoted the usual meme that the ruling was horribly written with no basis on precedent or constitutional text.*

I'd think at least a nod toward Griswold (what was that partially about again? oh ... not having children ... right) would be in good taste. Of course, many other rulings dealt with privacy rights -- the materials were there, it depended on how it was used. And, we are told that Blackmun gave a detailed history of abortion laws, but that there was little point to this if we wanted to know why abortion laws were constitutionally problematic. Perhaps, it might have been helpful to explain how such history would point to the state justification of the laws as well as the issue of personhood, quite relevant.** A few more people were thus sold a bill of goods about the ruling, one that might be disputed, but given a bit more respect than such comments offer.

There was also John McCain. The "Road to the White House" segment was replayed three times last night, so while flipping thru the channels, I kept on seeing this guy. The guy who felt it unnecessary to vote on Saturday when the closure measure on the surge debate was held. What came to mind when I saw him last night was -- this guy looks tired. And old. Some have cited the poll that suggests various qualities of top Republican hopefuls (age, Mormonism, multiple marriages) might very be more problematic that those of Democrats (sex, race). Who knows ... thus, I won't link the poll. Overall, however, McCain seems out of sorts lately. I saw this too when I saw him make his "oppose stupid military policy, the troops will think you oppose them" remarks. Selling one's soul for the presidency might do that.

Meanwhile, Sen. Dodd also was shown. Given my problems with some frontrunners, he might be worth investigating. Don't think he has much of a shot, of course, but something to consider. Dodd's recent opposition to limiting opposition to "anti-surge" resolutions drafted by Republicans and for securing habeas and other due process rights for alleged "enemy combatants" is promising. He also is an experienced hand, seems to be overall sound, and was loyal to Democrats once his fellow senator lost the Democratic nomination last summer. Has his problems, including yeah in 10/02, but worth a look.

BTW, nothing much exciting in the Sunday NYT, though there was an interesting piece on use of blogs to deal with bankruptcy and debt issues. But, that was available on its website on Saturday.

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* "[I]f the physical curtilage of the home is protected, it is surely as a result of solicitude to protect the privacies of the life within. Certainly the safeguarding of the home does not follow merely from the sanctity of property rights. The home derives its pre-eminence as the seat of family life. And the integrity of that life is something so fundamental that it has been found to draw to its protection the principles of more than one explicitly granted Constitutional right."

-- Poe v. Ullman (Harlan, J., dissenting)

** "Since, as it appears to me, the statute marks an abridgment of important fundamental liberties protected by the Fourteenth Amendment, it will not do to urge in justification of that abridgment simply that the statute is rationally related to the effectuation of a proper state purpose. A closer scrutiny and stronger justification than that are required." [same]

Music and Lyrics

Music and Lyrics is an amusing and charming little romance with just enough truth and humanity to mean something. Perhaps, like a good pop song? Hugh Grant and Drew Barrymore play their usual parts well and people like Kristen Johnston provide nice support. Cute "Pop-Up Video" bit at end. Slate's review also is mostly on the money. McDonalds' coffee is not all that, though.

Senate Republicans: "Don't Want To Talk About It"

Atrios is mostly right -- even in the House a strategy memo was leaked suggesting they change the subject -- "It's the Republican war, and they refused to talk about it." Democrats have some fault, but hey, if the other side wants to help pass the blame, is it our fault? The Senate Republicans (minus 7) have the filibuster. The Dems used it to defend "advise and consent" for judges. Republicans, as a Bush CYA move. Way to go!

Letters of a Portuguese Nun

And Also: On the recent comment respecting our love of gossip, Keith Olberman -- favorite of many critics of our misguided focus vis-a-vis "important stuff" -- is a core example of how we can handle both. His show seems to always have the trivial and important. Such is life.

The Secret Life of Words was a striking little movie, one of several to which Tim Robbins provided his talents, though the star was his younger co-star, Sarah Polley. An important reference in the film was a mention of the 17th Century Letters of a Portuguese Nun, a set of famous love letters of an abandoned nun to her French captain beloved. [Book reference alert!]

Though, as Myriam Cyr (an actress that fell in love with them, her book is an impressive act of scholarship for a first timer in the field) notes in an interesting little volume, many rejected the possibility that a woman -- even a clearly well educated one of noble birth -- wrote them. [Many say it is a work of fiction, which would not really reduce their power.] The force of the letters themselves -- a few pages a piece -- is clear, though they become a bit repetitive. Their special note, other than as an expression of love, is the female voice of a wronged lover. In this, they had in effect an early feminist cast.

Cyr's own volume defends the nun's authorship while providing useful background context. More background than defense really, but she makes a pretty good, if not compelling, case. Worthwhile reading. She includes "Thirty-two Questions on Love," included in the original publication of the letters. They are also interesting reflections of the era, many (if not most) remaining quite relevant today.

Anti-Surge Ho!

And Also: Last year, the Mets disposed of Kris Benson and eventually obtained two key starting pitchers in return. Benson had a predictable off/on year for the Orioles, but is hurt, so they needed another starter. And, what do you know -- they picked up suddenly persona non grata Steve Trachsel, who had a rather quick fall from grace ... his consistent averageness perhaps not fitting for the "new Mets." You served the team well Steve, if not at the very end ... good luck.

According to CNN, only one senator who's running for president has decided to blow off Saturday's surge resolution vote. Who? John McCain.

-- TPM

Ah, the little fake weasel. A few years back, I was given his book on courage. Worth wile reading, really, though this Iraq mess and his desire for the presidency has put a fork in his reputation for courage. Apparently, some things aren't "worth fighting for." After being treated like crap (along with his wife) in early 2004, he became Bush's little buddy in various key appearances. When Bush threw in a "signing statement" on McCain's anti-torture measure, Johnny made out as if it was a meaningless gesture. And, recently, JM disgustingly suggested that disagreeing with a failed policy would be taken as some sort of disrespect of the troops. I know of some online McCain supporter equally having a spine of spaghetti.

Said "respectable sort" -- full of above the fray wisdom and wisdom -- decided party was what mattered. So, he voted for Bush in 2004. Now, I don't take him seriously. Such people are in the same category of those who think raising (Bill) Clinton -- like a five-year-old child -- every time a challenge is made to the current President -- rather annoying, sometimes hard to ignore, but not worthy of our respect. The same applies to Joey Lieberman (Holier Than Thou-CT) who thinks a Senate vote in response to reason, public opinion, and sanity will lead to a "constitutional crisis":

Whatever our differences here in this chamber about this war, let us never forget the values of freedom and democracy that unite us and for which our troops have given and today give the last full measure of their devotion.

Yes, this includes those from Connecticut, who might think once someone is defeated in a primary that said person would actually do the decent thing and go away. At least, if the alternative was not to become the default Bush Republican candidate, the 10% who actually voted for the person with a "R" next to his name about the percentage of the party that currently has a spine. See, for instance, the number of House Republicans that voted for the anti-surge measure. Apparently, JL fears the resolution will be the beginning of some real pressure to change failed war policy. Assumed congressional overreaching more of a "constitutional crisis" than actual failure and overreaching by the executive. But, do we expect anything less from a faux values man / neocon Bush loyalist?

When I heard only seventeen Republicans voted for a resolution that simply supports the troops but opposes the surge, I was a bit surprised. But, clearly party loyalty has trumped principle in the end. Still, I thought "independent" maverick Christopher Shays (CT) -- who barely won in November -- would surely be among the few. Guess not. As with efforts to block a vote in the Senate, tossing in a "screw Democrats" resolution in the mix ("reasonable" Republicans helping, a few then whining about the politics of it all ... blaming both leaders), this underlines why certain sorts think the party is worth a cup of warm spit, and is as worthy of our respect.

Meanwhile, in Europe [see also, Ghost Plane]:

An Italian judge today ordered the first trial involving the American program of kidnapping terror suspects on foreign soil, indicting 26 Americans, most of them C.I.A. agents, but also Italy’s former top spy.... But the indictment nonetheless marked a turning point in Europe, where anger is high at the secret American program of "extraordinary renditions" that whisked away terror suspects in contravention of the law after the Sept. 11, 2001, terror attacks.

Ever forward.

Snow and Snowjobs (NYC and Iran Edition)

First real snowstorm of the season in NYC -- not too bad, but a true little downfall, not comparable to the ton of stuff that fell upstate. It is said to be below 20 today (SD+1), but without wind, it really doesn't feel that bad. The slush and such isn't nice, but it all has a nice feel and look to it -- winter!

Meanwhile, the President and company wants to give us a snow job ... again, remarkably, we basically hear that there is "no doubt" that Iran is supplying dangerous weapons, but hey, no one wants war. Likewise, scary, but interestingly opaque and changing language is used. This time, though some members of the press are credulous, the doubts are more immediate. One hopes we learnt something, but one never knows. Will the Democratic Congress -- nod to HC -- again whine about how Bush lied to us and had the responsibility for this war, by their inaction being complicit?

The usual blogs have the ongoing details, "Today's Papers" over at Slate suitably dubious today as well. Stay Tuned! Meanwhile, one of the Edwards bloggers voluntarily resigned, even some idealistically dissenting sorts sad about the details.

Update

New books on side panel; updated Glenn Greenwald link. Depressing additional news on Anne Frank. Some stuff we really don't want to know.

My Complexity Principle

And Also: A good piece on the perils of frontloading primaries, focusing on California. It suggests a solution that I favor -- party agreement to rotate regional primaries while spreading the process out to supply upstarts some chance to gain momentum. Having a small state like NH start things makes sense as does being concerned that some regions currently lose out. But, a total frontload, already influencing early candidate announcements, leaves something to be desired. Also, more on Sen. Dodd's habeas proposal, which sounds promising. I hear he's running for President.

Al Franken ended his radio show, and started a Senate run to regain his friend's (RIP) MN seat. The below entry, pre-blog, was something I wrote soon after he started in early 2004. I called it "my complexity principle."

The whole point of Section Five of the Fourteenth Amendment is that Congress can by legislation protect more than the "Supreme Court's own interpretations" of what the Constitution standing alone means to enforce the Fourteenth Amendment. ...

And, in fact, those who are worried about both judicial overreaching and excesses of congressional power should understand the power limiting nature of this interpretation. The alternate view not only limits the power of Congress in select cases, but encourages the courts to find certain rights as constitutionally obligated -- after all, it is the only way they would be protected, if Congress didn't have the option to voluntarily protect them. An option that could be limited or expanded as need be, not written in stone, and determined by more democratic means.

-- from "The Benefits of Congressional Discretion"

A basic principle of mine is that though there are some basic principles we should honor, few things are truly as clear-cut as many make them out to be. This leads me to have strong views on various matters, but somewhat complex ones, and respect for those who I feel have thoughtful opposing views. I try to retain courtesy to all, but if I feel the opposition is promoting their views in a shoddy matter, it bothers me. This to some degree also applies when I actually agree with those who use this method. Its negative aspects are ultimately to some degree counterproductive.

Take the above excerpt of broader remarks of mine that I cited yesterday. I would use it, for instance, to argue the Supreme Court was wrong to strike down federal legislation that allows individuals to sue state employers for allegations of discrimination based on disability. This does not mean I support a particular law on policy grounds (I think the disability law in general to be too vague and broad) or that Congress should have overreaching powers. All the same, I understand how someone can take the argument to its logical conclusion and so argue. For instance, to argue abortion rights should be left up to the legislatures. Thus, it turns on a number of factors that are open to debate.

[Justice Clark once remarked that the argument "that deprival of liberty may be less onerous than deprival of life [is] a value judgment not universally accepted." He did so to promote liberty, to extend the right of counsel that once was only given to defendants in death penalty cases.

I myself generally rank "life, liberty, and property" in that order. This is part of the reason why even if I'm sympathetic of some criticisms of Democratic tax policy, I cannot support their opponents as long as they threaten our liberty in general -- freedom over money, say I.* All the same, I cannot ignore (1) money is sometimes important to freedom and (2) my ranking is not a "self evident truth."]

It's useful to remember this, and the opposite view (a dangerously simplistic assurance of truth) is what is partly so troubling with the administration in office. Or rather, and this is important, the ethos that guides it. It is this spirit that truly has to be targeted, not just one man or even one set of individuals. This is partly why targeting the President alone is wrongheaded. He and those around him have their own problems, surely, but they ultimately serve as but means to an end. Sometimes they are even right, for as it is true that we all make mistakes, we also all do things right.

It is the overall worldview that is a problem, and targeting an individual alone is wrongheaded. We need to set our sights higher while making sure to defend our own worldview with reasoned argument with at least a touch of humility to our own limitations.

---

* Election races, including this year's presidential race, often center on economic policies. This does not really appeal to me for this very reason -- not only do they tend to be exaggerated and/or flawed (in part because the government only has so much control over the economy), but often because other things are more important to me.

The Challenge of Privacy

In a used bookstore, I picked up a late 1960s volume entitled The Price Of Liberty, a collection of essays on "perspectives on civil liberties by members of the ACLU." It's one of those little gems that you pass by in places of that nature, one that I didn't buy at first, but was still in the little "legal" section months later. I have cited it a few times since then. Among its charms, is a prediction (this is in 1968) that computers would within fifteen years be a means to send newspapers, providing banking services, and shopping. A bit premature, but pretty good.

The first chapter is by Harriet F. Pilpel and is entitled "The Challenge of Privacy." It speaks of the threats to privacy (opinion of Douglas) in the modern technological world, including from government watchdogs, especially when dealing with the poor and others who have a special obligation to open their lives to the state. Pipel was in the forefront of the birth control and abortion rights movements. Thus, it is interesting that she but briefly cites Griswold and related privacy over personal decisions. She then goes into an aside on the lack of privacy among the poor, ending that section with a suggestion that the government has an affirmative obligation to protect our rights.

Pipel earlier noted "freedom and personal privacy" are "redundant" -- one cannot exist without the other. Clearly, since people supported and continue to support threats to such privacy, though redundant, it is not patently obvious. At least, not the proper balancing. Such is part of the "challenge." In fact, she later is wary about those who would balance press freedoms via a somewhat lower standard of proof in libel/invasion of privacy cases when "private" facts are involved. See, e.g., Time v. Hill (dissenting opinion), one of many opinions that highlighted the importance of privacy (not always as a constitutional right, but still an important state secured liberty).

And, many cases spoke of the right of the press to report matters of "public concern." The hint that even the press ("no law") is restrained, underlines the importance of privacy rights. It also underlines that privacy is not just a matter of locale, not just a matter of keeping the government out of our homes in respect to searches and seizures. Certain matters are simply private -- the Fourth Amendment this underlines and secures a broader freedom to make private decisions, certain locales of particular importance in this respect. The choices are ours, even if in certain cases they are known to the world. Thus, one case dealt in the press book referenced allowed the media to broadcast illegally obtained (by others) cell phone conversations. At least, if the matter was of public concern.

The ruling did underline the importance of the privacy of our communications, calling to mind the NSA wiretap controversy:

"In a democratic society privacy of communication is essential if citizens are to think and act creatively and constructively. Fear or suspicion that one's speech is being monitored by a stranger, even without the reality of such activity, can have a seriously inhibiting effect upon the willingness to voice critical and constructive ideas." President's Commission on Law Enforcement and Administration of Justice, The Challenge of Crime in a Free Society 202 (1967).

One cannot thrive in a fishbowl -- one's freedom to communicate only thrives with some degree of privacy. This sort of thing is what Justice Douglas' meant in Griswold when he argued that privacy gave life to the enumerated liberties found in the Bill of Rights. And, more generally, when he noted -- like Pipel -- that liberty in this nation boiled down to a right to privacy ... in all its forms. A privacy that the government both threatens and helps secure (as it does all our rights, its very purpose for being).

Quite a "challenge," huh?

Going All The Way

In one of his final entries before moving to Salon, Glenn Greenwald addressed the uncomfortable fact of how the Democrats are going rather softly on the war/occupation of Iraq. As Russ Feingold explained in a Daily Kos diary announcing his opposition to the Warner/Levin "anti-surge" resolution:

We owe it to ourselves to demand action that will bring about change in Iraq, not take us back to a failed status quo.

Democrats in Congress have seemingly forgotten that we were in power when Congress authorized the President to go to war in Iraq. . . . We also have to remember that in November, Americans sent over 30 new Democratic Representatives and eight new Democratic Senators plus a very progressive Independent to fix a failed Iraq policy. The public is craving change in Iraq and a resolution like this one will not cut it. Now is the time for strong action.

In fact, GG cites an opinion piece from John Yoo of all people (co-written with attorney Lynn Chu, who gets top billing):

[B]ehind all the bluster, the one thing all the major Democratic proposals have in common is that they are purely symbolic resolutions, with all the force of a postcard. . . .The fact is, Congress has every power to end the war — if it really wanted to. It has the power of the purse. . . . Not only could Congress cut off money, it could require scheduled troop withdrawals, shrink or eliminate units, or freeze weapons supplies. It could even repeal or amend the authorization to use force it passed in 2002. . . .

The truth is that the Democrats in Congress would rather sit back and let the president take the heat in war than do anything risky. That way they get to prepare for the next election while pointing fingers of blame and spinning conspiracy theories.

This sort of thing does not sit too well -- Yoo is the guy who wrote books discussing how the President didn't need no damn Congress to use force and move around the military. So, this talk about "amending" the authorization is a bit too cute, isn't it? Likewise, if the resolution was "purely symbolic, with all the force of a postcard" why all the concern, the need to filibuster, the remarks from up high that it helps the enemy? Of course, "Congress" includes the Senate, which does not have a Republican-free filibuster. In fact, even though Lieberman seems not to be able to toss the Senate to the dogs, he still holds the balance of power vote-wise. And, cutting funding with troops in the field is not exactly easy politically.

Finally, the last paragraph is clearly blather, underlining the not to be taking on face value nature of the first. It is downright amusing that "pointing fingers of blame" is supposed to be a bad thing or something. The implication, obviously, is that there isn't any. Clearly, yes, it is not so easy to act, and just being on record against the President matters. This is why we have Yoo sympathizers writing editorials talking about such resolutions being constitutionally troubling "no confidence" votes or something. I know we shouldn't give too much (if any) respect to this guy, but GG quoted him. The two also voices sentiments shared by some others, though some of them are johnny-come-latelys, suddenly seeing the light, and wondering why the Dems aren't truly serious?!

Still, his arguments sound somewhat credible. This is because they are up to a point -- taking away the b.s. Congress can do more. Many tend to be risk-adverse, including my own senators (including Chucky Schumer who is on record thinking Iraq will go away by '08). But, resolutions, strong oversight, clearly turning the conversation a different direction, and other things (e.g., Dodd put forth a measure to save habeas, hearings are in place dealing with largely unregulated contractors, etc.) matter. We also have to face up to the limits in Congress as well. But, defeatism is not the way to go. Sen. Feingold has the right sentiment -- the fear of failure is a pretty lame reason not to try.

And, the failures will generally be worth the effort (consider his censure proposal), partially since would underline the reprehensible nature of those who block them. Let the taunts of Yoos embolden us. Getting out of Iraq is the ultimate goal. We cannot allow ourselves to forget that, even though immediate reachable victories and threats (e.g., Iran) might fill our heads. The election suggests we stopped digging the hole. It's time not only to raise a few feet, but get out of the thing entirely. It's possible.

Let's demand it.

How Free Can The Press Be?

And Also: So, the Dixie Chicks won five awards. Two were for country music, three general. I was a bit confused that they won for album and record -- sounds like the same thing. Is "record" the same as "single?" IOW, for the song "Not Ready To Make Nice." And, if so, why did they also win a separate award for song? See here for the answer.

Potential books from all ends -- stops at bookstores, mentions in movies, cites online, book reviews, and simply passing them in the library. And, they flow hydra-like, for instance, find one book/author, and there is likely to be other books by said author that might be of interest. Thus, I saw a book in the store, asked someone to try to find it for me, and she found another book by said author -- How Free Can The Press Be? by Randall P. Bezanson (I saw his follow-up, a similarly titled book on religion). The pattern is to take a few cases and discuss the issues arising from them, including some excerpts of the actual oral arguments with some commentary (a good strategy).

Mixed bag. One problem is that I don't think he properly addressed the contours of the issues, leaving out some important details along the way. For instance, take the Pentagon Papers. The idea here is that the press can be restrained as long as there is a grave immediate threat (not emphasized, there also was the problem of the executive acting on his own authority). The book took for granted this matter, also raising various possible examples, like threat to diplomatic efforts that would affect lives. But, should the press really be responsible for the possibility that release of compelling information will lead to loss of life? Let's say, to take an extreme, if we release the fact the President murdered x person, it will lead to failure of peace efforts, and the continuation of a war. Is the press required not to print it?

IOW, freedom can lead to serious consequences -- beyond a reasonable doubt might result in the freedom of someone more likely than not guilty of a serious crime. Likewise, yes, it's ideal if the media had a responsibility to include all sides. Some support a "Fairness Doctrine" (remarkably not mentioned in the book) to promote this end. But, it is problematic to force newspapers to include a "right to respond" to criticism. See, Miami Herald Publishing Company v. Tornillo. But, and the chapter on the case failed to note the point (ridiculing the thinness of the opinion), the opinion in that case addressed the concerns. Likewise, the concurring opinions supported some press responsibility (e.g., possibility of an obligation to retract libelous material) in some areas, Justice White particularly noting as much. Why exactly was this not covered?

I know books can only do so much, but it is not unfair to say such things, since it is one thing not to dwell on a matter, it is quite another to omit important material. It was particularly annoying to read RB damning Tornillo without noting that, yes, the justices did realize media monopoly etc. has led to problems. The question was not the problem, but the solutions. Still, the book did provide an important service in examining important issues, making some challenging arguments along the way. For instance, are special benefits to the press in fact counterproductive since it makes the press responsible to the government? Is the press responsible not to the truth per se (somewhat unknowable), but the attempt to reasonably try to so determine (e.g., reckless prong of "actual malice")? And, what exactly is "public concern," or rather, should more things be kept private? How?

Thus, though I felt the book poorly reasoned at times, it was a worthy read.

(Lack of) Due Care Takes You Pretty Far

And Also: I finally -- Comedy Central shows are repeated so many times after all -- saw The Sarah Silverman Show, the new effort by the foul mouthed/kewpie voiced comedian. She's a mixed bag: her outrageousness sometimes can be pretty funny, but other times, it is just outrageous. The episode I saw, where she takes in a homeless man, was the latter. She also is one of those people you think would have better careers, but then wonder ... well maybe it's just that they aren't THAT talented. Think John Candy. He was in loads of lousy stuff, even if he was likeable in much of it. Sorta lazy really.

Sounding like Justice Blackmun in his swan song dissent against the death penalty, a criminal defense attorney that has some experience in postconviction appeals noted that the moral opposition to the death penalty is in effect almost besides the point. One need not go there to underline the fatal (NPI*) problem with the "government program" at issue -- simply put, as a due process matter, it is a mess. Last time, I linked to two of my posts on the matter, one putting a "fiscal" criticism of the penalty in some context. Basically, I agreed with the general sentiments, but was wary about some implications. But, you need not agree with everything to be on a certain side. Sometimes, in fact, it is best to emphasize areas of agreement, not dwell on controversial matters.

TPM rightly points out that this issue arises respecting war with Iran -- yes, the "evidence" that Iran is seriously arming insurgents is problematic, but ultimately, the important matter is the bottom line. Two parts: first, even if they are arming them, it is an insignificant part of the broader problem. Relatedly, going to war with them (or invading them, if one wants to use semantics) still is a stupid idea. This really arose four years back. The evidence was dubious, but even if it was not as dubious (and this part damns Clinton sorts), war simply was not a good idea. It's sort of like prosecutorial discretion. I'd add, per recent discussion on Clinton's comments, that even a resolution focusing UN emphasis on Iraq was a bad idea. Surely in the "do this or else" means used.

Meanwhile, the House of Representatives resolution against the surge is refreshingly blunt, a limited, but important rejection of the President's judgment that is superior to some watered down pabulum that might get some "adult" Senate Republicans to come on board. The chatter is that the resolution also will get a decent number (maybe as much as a third ... think c. 300 total votes) of House Republicans. It states:

Disapproving of the decision of the President announced on January 10, 2007, to deploy more than 20,000 additional United States combat troops to Iraq.

Resolved by the House of Representatives (the Senate concurring), That—

(1) Congress and the American people will continue to support and protect the members of the United States Armed Forces who are serving or who have served bravely and honorably in Iraq; and

(2) Congress disapproves of the decision of President George W. Bush announced on January 10, 2007, to deploy more than 20,000 additional United States combat troops to Iraq.

It is but a start, but I can support that.

---

* No pun intended.

Go Chicks!

And Also: Slate had a piece on how the public is turning against the death penalty as the Supreme Court might be going the other way. My .02. Zoe Heller's novel What Was She Thinking? [Notes on a Scandal], the basis of the Oscar nominated film, was rather good. I'm not sure how much you are supposed to sympathize with the narrator (the older teacher), but I did.

A nod to the winners of the Grammy Award for Best Country Album:

I'm not ready to make nice,
I'm not ready to back down,
I'm still mad as hell
And I don't have time
To go round and round and round
It's too late to make it right
I probably wouldn't if I could
Cause I'm mad as hell
Can't bring myself to do what it is
You think I should

I know you said
Why can't you just get over it,
It turned my whole world around
and i kind of like it.

Natalie Maines' latest hair style is pretty nice too. Check out Shut Up and Sing! and their videos on YouTube. "Goodbye Earl" is particularly amusing. Actually, though I saw them win the country music award, their success was much more complete than that, winning each category for which they were nominated:

After death threats, boycotts and a cold shoulder from mainstream country radio, the Dixie Chicks gained sweet vindication Sunday night at the 49th annual Grammy Awards, capturing honors in all five of the categories in which they were nominated...

The Dixie Chicks took home Grammys for the top three awards: record, song and album of the year. Their "Taking the Long Way" (Open Wide/Columbia) won best country album and "Not Ready to Make Nice" also captured best country performance by a duo or group with vocal. That song is an unapologetic response to the furor set off in 2003 when the band’s lead singer, Natalie Maines, made an off-the-cuff antiwar remark to London concertgoers: "Just so you know, we’re ashamed the president of the United States is from Texas."

But Sunday’s awards were the Recording Academy’s rejoinder to the country music radio establishment. Accepting the award for song of the year, Ms. Maines joked, "For the first time in my life, I’m speechless." When the trio returned to the stage for the best country album Grammy, Emily Robison, another member of the group, added that the band had been in a "strange place to be sometimes, without a genre."

Go Chicks!

Sports Update

Only caught parts of the Second Half, but the Pro Bowl turned out to be pretty good. A long return and a fumble (via Vince Young) recovery made it three times for the NFC (via Tony Romo) to get back in the game late. They did it the third time, failed a two point conversion, but managed one a second time (after regaining an onside kick). The AFC, after a pass interference call pushed it to the 1, won it with a game ending field goal. No, not by Adam V.

Meanwhile, "[i]t's time for pitchers and catchers."

Hillary Clinton's CYA

And Also: Per a recent comment, I'm told "we are pregnant" is getting popular, and some couples even have couple baby showers. Women need their time too, but that's a pretty good idea. Also, enough with this self-righteous annoyance at the lastest gossip. Apparently, this tendency to focus on gossip over "serious stories" is a sign of the times. People didn't focus on gossip in the past. They also all went to church, didn't say bad words, and brushed their teeth after each meal.

[See her original speech in 2002 here, including a distasteful connection to 9/11. Typical having it both way, pure CYA.]

"I have taken responsibility for that vote. It was based on the best assessment that I could make at the time, and it was clearly intended to demonstrate support for going to the United Nations to put inspectors into Iraq.

"When I set forth my reasons for giving the President that authority, I said that it was not a vote for pre-emptive war," the former first lady said.

She said the Bush administration forced an end to the final round of weapons inspections and invaded prematurely. The administration is responsible for the status of the war, she said, and for being "grossly misinformed" or for having "twisted the intelligence to satisfy a pre-conceived version of the facts."

-- Hillary Clinton's CYA

Sorry, no. My basic thought, like the majority of the Democratic Caucus in Congress,* was that the resolution was a bad idea. They voted against it. The second in command, so to speak, in the current U.S. Senate (Dick Durbin) voted against it. Sen. Graham, who knew more than most about the available intelligence, voted against it. Top military guy Sen. Levin voted against it. A few Republicans voted against it. This idea that somehow it was pretty ridiculous to think it reasonable that the resolution would not toss the car keys to the drunk or not likely lead to war, was shall we say naive.

This is so especially given (1) war should be dealt with warily and (2) trusting Bush in October 2002 ... when at the very least many should have know the timing of the resolution itself was dubious (and this was not the only reason to be wary) ... was stupid. We are supposed to accept DLC sorts like Clinton because though they are somewhat more conservative, they are realistic sorts, not wild-eyed idealists like those Deanites. But, damn, do Clinton defenders come off as naive morons. Wah!! He lied to us! Wah! No way of knowing! Oh, give me a break.

What was the NAME of the resolution? "To authorize the use of United States Armed Forces against Iraq." Who determined if such force was necessary? The president: "as he determines to be necessary and appropriate." Necessary and appropriate to what end? To "(1) defend the national security of the United States against the continuing threat posed by Iraq; and (2) enforce all relevant United Nations Security Council resolutions regarding Iraq." But, wait! The point was to give the President an edge when he went to the U.N., and to show Saddam Hussein that we meant business! Bush abused the power!

But, was it "not a vote for pre-emptive war?" What authority was given? Again, a look at the actual resolution, not what individual senators wanted it to mean, is useful. Let's remember that something with a bit more teeth was quite possible. Something that gave Congress more of a check that it would not be used to go further than people like Clinton (and Kerry) said they wanted it to go. Say, a second vote. Or, more stringent language. Such an alternative WAS offered. Let's look at what did pass. The President, on his judgment, needs to inform the leadership of Congress (by then both Republicans) within forty eight hours of use of force that:

(1) reliance by the United States on further diplomatic or other peaceful means alone either (A) will not adequately protect the national security of the United States against the continuing threat posed by Iraq or (B) is not likely to lead to enforcement of all relevant United Nations Security Council resolutions regarding Iraq; and

(2) acting pursuant to this joint resolution is consistent with the United States and other countries continuing to take the necessary actions against international terrorist and terrorist organizations, including those nations, organizations, or persons who planned, authorized, committed or aided the terrorist attacks that occurred on September 11, 2001.

By giving him this authority, by definition, we were not trusting in the actions of the U.N. alone. So, the fact -- but he promised! -- that Bush ignored the majority of the Security Council is not really conclusive. The resolution gave HIM the final determination. Yes, he was made the decider. And, darn -- the flowery whereas clauses included -- he had a pretty thin line to cross here. "Adequately protect?" What the hell does that mean? And, what exactly "is consistent" (#2) supposed to mean? Sure, it turned out to be quite dubious, especially the "evidence" available of WMDs, but that is a pretty low bar. And, that is btw really a misplaced complaint -- that is a reason (whereas clause, and there were others) for the power, not part of the actual authorization. A fair criticism, if one others saw pass at the time (also often forgotten and damning to the judgment of others), but again, the why, not the what.

Again, looking at the resolution itself. So sorry. The resolution DID authorize a preemptive war. It did not demand it, surely. But, the power was there for the taking. Did Bush use lousy judgment? Sure. But, the Congress cannot refuse to accept some liability here -- the power was GIVEN to him to use that lousy judgment. Hoping it would not be so aside. If there was not real fear that it would come out badly, why did a majority of the Democrats -- including some top names -- vote against it?

Finally, let's say that the power was not given. Hmm. He misused an authorization to go to war. Darn, that is horrible. Clinton should have been on the front lines demanding justice, from the beginning. Now, Kerry did voice strong concern, real impressive really (as in of no real value), right away. Not sure Clinton did. But, anyway, if the President went to war on false pretenses, twisting the intel along the way, that's IMPEACHABLE. I put it in caps, since apparently, she does not think so. It is seen as a somewhat bad thing, more or less, but just a bad judgment.

Which is sort of damning actually ... the implication was that it was just that ... handling authority badly. IOW, again, the authority was there! YOU VOTED FOR IT! So sorry. You are not getting my primary vote. At least, Edwards -- who was on the front lines with Lieberman at the time so is no saint -- admitted error. Not saying I will vote for him either, after all, he already got two of my votes. I'm not an idiot, so if Clinton makes it to November, I will likely vote for her then. Doubtful the Republican would be better -- Hagel voted for it and voted for the filibuster too, and he is the best of the lot.

But, I'm sick of this shit. Not just Clinton but those who defend her, usually making it all Bush's fault. Oh shut up. Please shut up. I explained myself, so this is not just an O'Reilly (and said "please"), but I stick by it. Enablers who theoretically should know better are pretty low in my book.

---

* The votes were 296-133 and 77-23. Only one Republican senator nay vote, Dems controlling Senate by same vote as now. In the House, 81D for, 126 against. Doing the math, yes Virginia, "everyone" did not support the President. A majority of the Democratic Caucus did not. The fact most of them were representatives does not change things. It just damns the Senate a bit more. But, Congress authorizes war, not the Senate alone.

Bloggers In The News

And Also: Maria Maggenti took a decade to provide a follow up to her charming "first love" indie The Incredibly True Adventure of Two Girls in Love with an equally charming (in a different way), Puccini for Beginners. This time we have a lesbian off a break-up finding herself dating both a man and his ex. It has some too cute touches, but overall is enjoyable and intelligent fare. Good NYC feel. The lead was great, if in a very different role, in Sweet Land. Gretchen Mol also here has a nice The Notorious Bettie Page follow-up.

A favored technique is to use a single event for the purpose of discussing broader themes and goings on. Thus, the Dred Scott case, as shown in Don Fehrenbacher's seminal book on the subject, is actually a reflection of the antebellum age. Some wish to see things in a vacuum. This is the path to fiction. Libby's trial is sold that way to some people -- nothing there, you see, maybe a single lie. Nothing to see here. B.S. It is a reflection of how their handled the war, how the establishment press handles sources, how Cheney et. al. operated, how they corruptly blocked any investigations of their actions, etc.

[Balkanization now wants to target Cheney -- we must have a "no confidence" vote for dangerous vps! But, a means is there. Agnew was forced out for things pettier than this! Cheney's involvement in the Plame business alone is impeachable. Again, let's not whine too much about our powerlessness. It is as much a matter of will.]

And, less importantly, the Edwards' blogger story also is in effect much bigger than the ultimately small scale nature of the individual acts involved. You can check out sources like Glenn Greenwald, Talking Points Memo, Salon, and so forth to get the background, useful links, and further commentary. Basically, the Edwards campaign hired two bloggers, who some distasteful self-claimed Catholic defense sorts targeted as hateful types. And, they made some comments on their personal blogs -- a medium known for such openness and lack of restraint -- that were a bit blunt.

Some sympathizers wondered why Edwards, especially with his nice guy persona, chose these two in particular. It was also noted that one of the two made blog comments on the Duke trial, and Edwards' former law partner is on the defense team. And, some other comments that were not really thought through. [see TPM] OTOH, the fact Edwards himself is Catholic was not made clear in the early accounts I read.

GG suggests that he thinks, though the campaign denied it when first reported, the two were fired, but there was a negative backlash, and the campaign changed course. Edwards ultimately said that he opposed some of the negative language used, but the two assured him of their bona fides. As a comment here noted, he even wily challenged one of the main critics involved. A few were not satisfied, thinking this still gave in to hypocritical blowhards. This was the sort that seemed to think this was some sort of make or break decision, a sign of how he will fold on major issues. "Now, I can't vote for him!" Or, the type the spoke of a "bunker mentality" when the Edwards campaign took a few hours to decide what to do. Oh, grow up.

I respect that you need to deal with these attacks, but as GG noted, he did. And, the NYT actually wrote about the negative tone of the other side as well. Yes, one fears a "pox on both houses" mentality, but the bloggers are still there, and it was all handled quickly. It also shows that as blogs grow in importance, they will be used against campaigns, even for low ranked staffers. With power and success, comes pressure. This is expected and must be handled in a sound fashion. And, yes, there are going to be some missteps (were these good hires? not clear) and some a bit messy choices made partially to look good. Such is politics, such is life. Beside, it is rather early, and dealing with the edges like this is the point of long campaigns, right?

Anyway, check the blogs etc. for further thoughts on the matter. In sum, I see it both a reflection of the importance of the blogosphere as well as the importance of a bit of caution/perspective in this 24hr news cycle. Heck, when someone mentioned that the story got just a blip, someone pointed out that Wolf Blitzer talked about it. Well, yeah, that's the point -- not too many hang on what he says, even with blogs like Crooks and Liars now providing movie clips to key cable news moments. And, yes, as a warning on the care one must take in handling attacks. Overall, I think Edwards did pretty well, though mentioning the tone of specific past blog entries might be a bad precedent.

Oh, did I say that the putative top two Republican candidates -- Johnny and Rudy -- skeeve me out? No? Well, that's because we have to focus on what Congress and the President we have now is doing. Except when we don't, I guess.

Various

The PBS Supreme Court series did not look promising, compressing too much in a few hours, and (as usual) making us assume nothing much important happened before John Marshall. Sorta okay History Channel special fare. Meanwhile, Myra MacPherson's new bio on I.F. Stone is just too long. Good story, too much glorified (somewhat simplistic) historical filler. And, sad early end to Anna Nicole Smith.

100% Something

And Also: So, without a sham resolution respecting Congress' alleged duty to fund whatever the President says is militarily needed, Republicans won't let a nonbinding resolution go to a vote. This includes faux moderate sorts. No shame. Well, hopefully the House will do the job, underlining the fiction that the Senate is somehow where adults reside.

Before we examine one of the top sex gossip stories of the day, I would like to give a respectful nod to another decent "lifestyle" feature in the NY Daily News with a women friendly slant involving sexual dynamics. Today they managed to find some of them, all normal looking (all white, btw), and have them discuss their sex lives ... with a sign including saying the last time they had sex. From last night to never; though one is 28, they basically are all thirtysomethings. And, have serious things to say about the subject, including one who is Catholic (not the virgin), and decided to wait until she gets married to have sex with her current mate.

[There also was a pregnant woman, who spoke about how "we" are pregnant. Oh? Were "we" nauseous? Seriously, that is a nice way of looking at it -- it surely is in many ways an event both parents share. Still, sounds a bit funny.]

The Kinsey scale, whatever its limitations, was premised on the assumption that sexual orientation in human populations is not a matter of either opposite-sex or same-sex, or of healthy desires and polluted ones; rather it involves a continuum of possible orientations that are spread across a population distribution-- as are so many other human traits. What Haggard and his friends particularly want to deny is this fact, because it changes the meaning of normalcy and undermines their way of seeing the world.

-- Jack Balkin

Anyway, yes, there are various top gossip laden sex stories out there. There is the story, with at least one detail that we didn't need to know, about the crazed woman astronaut. Also, there is the update of the saga of Rev. Ted Haggard, who we now learn is "100% heterosexual," just in time for Alexandra Pelosi's (yes, the daughter) HBO documentary on conservative religious movements, which included comments from him -- before the scandal broke. In it, he spoke about the healthy sex lives of evangelicals, a statement with which many of both sexes would agree. And, they are not just full of it either, since you can obviously be conservative and have a healthy sex life.

Still, people like TH here do ruin it -- Glenn Greenwald might be right that many of that class have selective vision when it comes to this sort of thing when looking for leadership (so Rudy might actually have a good shot), but this sort of thing only underlines the stereotype that they are a bunch of hypocrites. People who say this should be a bit careful -- consider that even Al Sharpton warned a local black leader to be wary about making support for Barack Obama a "black thing," since the senator is supporting the white mayor of Chicago over black opposition. (h/t Democracy Now!) And, we all know that moralists on the left are hypocrites too ... or, rather, human. It is not a right/left thing, and neither side as a monopoly on moral outrage. We just have to focus on what sort is at issue.

The news does emphasize the problem with trying to work around "accepted wisdom" that leaves something to be desired. I referenced the point last time respecting faith in God that is defended on a quasi-scientific basis (e.g., some form of teleological reasoning). If one works upon some premise, one that is "true," the very unlikely quite possibly might be brought out to defend it. This works both ways. One might consider the resurrection of Jesus as rather unlikely; thus, any number of things, including psychological visions, can be used to examine how it was accepted as true. Some might be deemed a bit unlikely, but much less so than resurrection from the dead (especially under the conditions put forth here). If you do believe in the Resurrection, on the other hand, some of this might seem like trying to stretch things to avoid "the truth."

This sort of thing cannot be seen in a vacuum. The idea TH can, after a short period of counseling and such, be declared "100% heterosexual" is quite honestly ridiculous. It is a bit hard even under the premise that homosexuality is not a part of oneself, but a fake "identity" that grows out of particular conduct. So, if someone stops having that sort of conduct, you are not a "homosexual." One wonders ... don't you need some grace period to determine this fact? It's like an alcoholic declaring himself "dry" after a few weeks -- you need more time than that to prove you won't fall back. Or, let's just say that he was always "100% homosexual," a long term affair notwithstanding. Still, even if you stop murdering, you are still a "murderer," right? It is a bit confusing.

[A comment in the entry linked in the opening quote references those who label themselves "black," even if they are biracial. This is a real issue and reflects the universal issues addressed here. But, in this sense, race is a social construct of sorts, while homosexuality is to my understanding ultimately something deep inside of someone. If TH means "socially" he is heterosexual, I might accept it in some fashion. But, I think he also means in a sexual sense. That is, from now on, he won't be attracted to guys, or have his life affected by such attraction. This doesn't quite fly.]

Seriously, TH appears to at least in part like guys -- at least, he appears to be a bisexual. To be fair, one really cannot know without looking close at his case, or closer than I have (perhaps, there is enough stuff on public record to make a good judgment ... I simply have not researched the point). Basically, I do feel comfortable saying that he has some homosexual tendencies. It is not credible to say otherwise given the information available. So, basically, one has to lie to oneself ... selectively look at the evidence to promote a presupposed viewpoint. One cannot cabin this tendency that easily. It will flow over to other areas, especially related ones (sexually, etc.). And, this is a great area of concern -- people are particularly concerned given the disproportionate influence granted to this group.

So, we can make fun of TH's "100% heterosexual" bona fides (sounds like one of those online tests you take where you can get an icon for your website/blog), but it won't stop there. This mentality helps promote bans on gay marriage and so forth. An actual reasoned out policy that passes the laugh test is ideal and all, but it isn't quite how the world works. The world works this way -- especially in the area of sexuality -- if teenage girls can act more slutty than Kelly Bundy and still be "virgins," TH can be 100% heterosexual. It's just a way of looking at things.

You know. Like criticism of a failed disastrous policy is "bad for the troops." Right, McCain?

[This blog is politics heavy, but again, the open-ended nature of this problem goes way beyond politics. It's like dating a liar. The person's a liar ... s/he might be selectively so, but quite often it's a consistent thing. They don't just lie about one specific thing.]

"Indisputable My Ass" -- Four Years Later

Four years has passed since Colin Powell gave his con job -- which he so generously admitted was wrong once Bush was re-elected (elected). Shortly afterwards, Tim Noah (Chatterbox at Slate) wrote a piece on how it is clearly obvious now that Saddam Hussein had WMDs though it might be sound judgment to keep the inspectors in for strategic reasons. This added to his "reluctant hawk" reasoning to back the war with the usual Thomas Friedmanesque hesitance.

I was not alone in finding this B.S. though the "conventional wisdom" now is supposed to be that "everyone" did until some unclear time afterwards, though even now we really shouldn't do TOO much about it, except give the backers of the failed and mishandled policy more time and to be real concerned about things. In fact, true assholes thinks this is a step too far. John McCain actually had the bloody nerve to suggest that not supporting a failed policy you truly believe is only worsening the situation (including killing and maiming our troops to little good end) somehow disrespects the troops. Other more "reasonable" sorts allow partisan concerns to delay votes on critical nonbinding resolutions, including ones they co-sponsored. This is so even though the delay moves are obviously in place as sham jobs to make Dems look bad.*

February 2003, on the Slate Fray (links here):

More of the bloody same bullshit. This is war we are talking about, and this is supposed to be a hesistant hawk, someone pushed into a hardline policy because of necessity, because things are bloody obvious. Indisputable, pardon my French.

Noah challenged someone to dispute the Powell presentation to the UN, which could be broken down into three parts: terrorist (Al Qaeda ... we know Saddam has connections to Palestian terrorists), chemical and nuclear. Noah himself says the terrorist connection is disputable. The nuclear part, which he seems to ignore here, has been disputed by many ... it is deemed by some the weakest part of the case. That leaves the chemical. Noah (being a good sport) agrees that maybe that wildman Alexander Cockburn and Hans Blix might have a point that a couple points were disputable. But that leaves a few that clearly aren't. Therefore, a fraction of Powell's presentation is indisputable enough for Noah.

Didn't take Noah that much to go to the war camp, huh? I bow to JackD who posted a bit before I to answer his snide comments as to the possibility that inspections might have some value, but apparently not much.

btw Noah didn't have to go to Wild Cockburn to dispute the testimony. Newsweek [www.msnbc.com] gave a rather mixed report as well. Also, if Noah thought only a little smoke was enough, the presentation might have been enough. But, if (as some of us do) he thought a compelling case had to be made to impress the UN enough to declare a pre-emptive war on Iraq, it is a bit more tricky.

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PS I attach the Newsweek analysis of key bits of Powell's case below. Suffice to say that other publications, like The Guardian, put forth a more damning case than Newsweek. All the same, if a middle of the road publication put forth such doubts, perhaps Noah should be a bit less cocksure of himself.

In a somewhat related vein, I was asked over the weekend to specify the difference between "atheist" and "agnostic." I think the main difference deep down is in strength of feeling -- atheists (as a recent debate suggested) tend to have a more doctrinaire side that tends to be a bit tedious. Anyway, it was suggested that there must be a God, since how else do you describe those lovely mountains etc. Not surprisingly, the same person was quite upset at God when someone close to said person died badly. There is a selective belief process here. Faith that seeks out something to hold on to, even if it is pretty weak. A priori thinking.

Not a reason to go to war. Got it this time?

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* Two Republicans likely to have tough re-election campaigns, one perhaps from Al Franken, voted for cloture. Some note this somewhat sarcastically, but that is the point of elections -- to pressure public officials to be concerned with what their electorate supports.