Snookered By The (Faux) "Pink Libertairan"

Back in January, I posted a link to what appeared to be something very rare: a blog by a young, attractive, libertarian woman. I found her thinking to be somewhat sophomoric and imbued with the confidence that comes only from youth and inexperience, but the author seemed unique enough that I thought the blog might make interesting reading from time to time. Today, I went back there for the first time, and, low and behold, learned that the young liberterian girl was actually (by his own confession), "an unemployed man without a wife or girlfriend still living with my parents despite being over the age of 30." What a bummer! Sophistry by Libertairan Girl was something I could tolerate, even find amusing. Sophistry by an unemployed 30-year old with no life is simply boring.

Before relegating him to my "deleted items box", though, i should point out that our hermaphrodite does make one observation that may not be entirely irrelevant to the debate raging recently over the paucity of women on America's editorial pages (see, e.g., this and this and this): precisely becuase they are so much rarer, it is a heck of a lot easier for a female (and especially an attractive female) journalist/blogger to attract attention than it is for a male. He/She moans:

When I had a blog as my real self, no one linked to me, no one left any comments, it was as if the blog existed in a vacuum. But things were different for Libertarian Girl. Every day I’d check Technorati and discover new unsolicited links. It was like I had warped into an alternate universe where all the rules had changed. At the rate things were happening, this would have been an A-list blog in a few more months.

It’s funny how there have been some posts in the blogosphere saying that the political blogosphere was a boys club that discriminated against women, as evidenced by how few politics bloggers were women. Boy were they completely off the mark. It’s ten times easier for a woman’s blog to become popular.

Yes, female editorialist/bloggers are realtively rare. But that very rarity has the potential to give them disproportiante impact.

Be careful what you wish for girls!

Scalia on Constitutional Interpretation

Courtesy of Three Bad Fingers by way of Instapundit, here is a transcript of Justice Scalia's recent speech on Constitutional Interpretation. It is a fscinating read, and anyone who believes (as I do) that the meaning we ascribe to the Constitution needs to evolve over time should take the time to peruse this. I guarantee it will challenege you to think more about what you believe in this regard.

Writing Women Into a Corner

Anne Applebaum to Susan Estrich: STFU

Still More Good News: Wolfy is outta here!

Courtesy of Laura Rosen at War and Piece (via Will Bunch), Wolfowitz appears to be headed to the World Bank. I'd have preferred out to pasture, but even at the World Bank he can do a lot less damage than at DoD. How much longer for Rummy I wonder?

Lots of Good News

I have had very little time to blog in the last couple weeks. Too bad too, becuase there is a lot of interesting stuff going on:

Countering the pro-Syrian demonstrations staged by Hezbollah last week, yesterday a Huge Demonstration in Lebanon Demands End to Syrian Control.

The Israelis continue to demonstrate that they are serious about making peace. First, theIsraeli Cabinet Pledges to Raze Some Outposts in West Bank in addition to those in Gaza and then announces that it will Turn Over Control of 2 West Bank Towns to Palestinians. My firend Yuval is just beside himself. But to me it's all to the good.

A California Judge Voids Ban on Gay Marriage. Do you realize that this issue has now been decided by three state courts and all three have held that such a ban is unconstitutional. The holy homophobes must going nuts. Now all we have to do is to (a) get the California Supreme Court and the New York Court of Appeals to affirm and (b) find some way to attack the state constitutional amendments passed last November. Actually, it's not going to be that easy. This is going to be a long bitter fight.

And then, most personally gratifying of all, Bernie Ebbers' "I know nothing" defense fails: Ex-Chief of WorldCom Convicted of Fraud Charges. Small comfort for the drubbing I took on Worldcom stock, but better than nothing.

Comparing Plans for Social Security

There was an interesting table in the Washington Post last week comparing the basic elements of five different approaches to Social Security. Notes on Bush's positions are included, but since he really hasn't proposed anything yet, there is not much there.

The main point the table drives home is that all we are talking about is money: every approach to the issue involves some combination of increased taxes and/or increased borrowing and/or decreased benefits. The only differences are how much of each.

The plan I tend to like the most is the second one on the chart from the Cato Institute. Here is the full text of that proposal. Here are the basic elements:

1. No changes at all for people 55 and older.

2. No increase in FICA rates or in the cap (currently $90,000) in wages subject to FICA

3. A guaranteed minimum pension for all at 120% of the poverty level.

4. Workers between 18 and 55 would technically have the "option" of staying in "traditional" social security. If they did, they would be entitled to receive whatever benefits would be payable (not promised) under current law. The catch: under current law, once the "trust fund" is exhausted, the SSA is required to reduce benefits to the levels payable with then-current FICA receipts. And, since the Cato plan involves a 50% cut in FICA receipts from any worker who opts out of traditional SS, the trust fund would probably be exhausted well before the 2042 current projections. In fact, therefore, most people below 45 or maybe even 50 would be foolish to stay with traditional social security.

5. People between 18 and 55 who opted out of SS would immediately receive a zero coupon bond with a value that, at maturity (i.e. age 62), would buy an annuity paying benefits equal to the benefits social security would have paid that worker under today's rules if that worker had quit working at the age at which he/she received the zero coupon bond.

6. All workers and employers would continue to pay 6.2% (each, for a total of 12.4%) into the government pension program just as they do today. However, half of that money would be invested by the government at money market interest rates during any given year and then, at year end, that half would be deposited automatically (with interest) into a closely controlled private account owned by the individual but offering a severely limited range of investment options (index funds, broad based bond funds, money market funds, etc.)

7. Once such a worker reached retirement age he would be required to use the assets of this account to by a lifetime annuity paying at least 120% of the poverty level. If his account was insufficient to do this, the government would make up the difference out of general revenues. After that, any assets remaining in the account would be treated much like a Roth IRA, with the worker having substantial discretion as to frequency and manner of withdrawals. Any remaining balance at death would become part of his estate.

8. The remaining 6.2% of FICA payments would be used to defray the transition costs. Eventually, these transition costs would start to decline and eventually to zero. Once that happens, the required payments would drop a well until (eventually) the required pension payments would drop to 6.2%.

What I like most about this is that it separates the "welfare" component of SS from its "investment" component. On the welfare side, everyone is treated equally. It answers the question: "Why should the government pay Bill Gates more than it pays Joe Lunchbox. Moreover, 120% of the poverty level seems to me to be a fair level for the government to guarantee. The remainder of the benefits which an individual receives will come from "true" investment. As such, the invested assets should, I think, belong to him. Finally, it begins to address America's miserable savings rate, essentially requiring every worker to save 6.2% of income for his retirement. This will create a huge new pool of capital for investment, and by spurring growth, this investment may actually increase both national wealth and tax receipts, thereby helping to defray the transition costs.

The problem, of course is the transition costs. They will be huge. Cato doesn't even try to estimate them, but the Post attributes an estimate of $7 trillion dollars over 75 years, which the Post says that this is roughly double the current SS deficit of $3.7 trillion over the same period. Estimates of this sort are almost meaningless, since there are way too many assumptions buried in a 75-year estimate of anything to allow reliable forecasting. But, in a larger sense, my answer is that if this is what it will cost, so be it. Getting to the end point Cato describes seems to me to be worth it. And, since $7 trillion divided by 75 years is "only" $93 billion/year, we could get most of the way there simply by rolling back the Bush tax cuts.

Could Bush Be Right Cont'd: On Ends, Means, Costs and Benefits

On Saturday, taking off from and Op-Ed piece by David Brooks, I wrote a post observing that (much to my chagrin) there were tantalizing signs that Bush might actually be right when he claims that the overthrow of Saddam and the efforts to build democracy in Iraq would trigger a liberalization of other Arab governments. I also noted that if these hints proved to have substance, then the invasion itself might well have been worth the costs.

At dinner that evening, I got into a discussion of these same isses with some friends who have even more trouble than I do giving Bush "credit" for anything. One question I was asked repeatedly was whether I was saying that "the ends justify the means?" The question was troublesome, and I admit to pretty much ducking it at the time. But it has stuck in my mind, and I feel compelled to try and answer it. After further (and more sober) consideration, I think the answer is a firm . . . "Maybe." I think a fairer statement of my argument is this: Every change in the status quo involves some costs, frequently in the form of human suffering. But, in some cases, the benefits of the change, to future generations if not to the present ones, are worth the costs entailed in achieiving that change. Perhaps this is the same thing as arguing that the ends sometimes do justify the means. But, to me at least, there are important nuances that are lost in that common indictment of action.

Take a simple example. Suppose a group of terrorists is holding some hostages. Few would disagree that the goal of freeing the hostgaes would be worth the "costs" involved in killing the terrorists, at least if there were no other less violent alternative. But, what if the only availible and effective means of freeing the hostages in any reasonable period of time involved risks to the hostages themselves? And, even more difficult, what if it involved risks to third parties? I think most people would agree that, if the only effective means for freeing the hostages involved risks to the the hostgaes themselevs and even to innocent third parties, the end of freeing the hostages is sufficiently important to justify using those means despite the potential suffering that may flow from that decision.

Obviously, any person charged with effecting a change has a moral obligation to assure that the means chosen is the least costly of the effective means for achieving that end. Thus, use of deadly force would not be warranted so long as there remained some reasonable hope that the goal could be achieved by negotiation. Moreover, there are probably some "means" that are simply too "costly" to consider using in pursuit even of a very valuable goal. For example, the goal of liberating hostages would probably not justify siezing the families of the terrorists and torturing them one by one until the terrorists surrendered.

But, beyond these extremes, the decision of whether to pursue a particular course of action cannot be answered by resort a claim that ends do not justify means. As the hastage example illustartes, some ends do justify the use of some means, even if innocnt people may suffer as a consequence. Thus, deciding particular cases -- like Iraq -- involves a consideration of four sequential questions:

(1) Is the goal itself worth achieving. That is, if a particular change could be effected without any costs at all, would the owrld be better off. If the answer to this question is "No", then considering costs is pointless.

(2) Will a given "means" be effective in achieving the goal. If not, then again, consideration of costs associayted with this means is pointless.

(3) Are there other effective means that would be less "costly". If so, those means should obviously be preferred. But if not, then the choice comes down to:

(4) Are the costsassociated with the means "worth" the benefits that will flow from achieving the goal.

The first and last of these questions are pure value judgments and can be debated as such. The second and third are question of fact, but they can never be answered with complete confidence until after the fact. As a result, these questions do not provide answers to the question of whether a particular means was justified in light of a particular end. However, they do provide a framework for thinking about those issues.

In the case of Iraq, the goal is (or at least is now claimed to be) to achieve a near-term reduction in the threat Islamic fundamentalisms poses to the West by accelerating political liberalization of Arab governments. Few would argue that reducing the threat of Islamic fundmentalism is a worthwhile goal. And, most would agree, I think, that liberalization would tend to reduce that threat. Thus, most would agree, I think, that the goals are worth achieving so long as the costs are no excessive. Anyway, let's assume we have consensus on that point. If we need to debate the premises, we can do so later.

So, we have a goal that we agree is worth pursuing, at least if the means used do not involve significant costs. The next question is "Was the invasion of Iraq an effective means by which to pursue this goal. Bush claims it is. My sense originally was that it clearly was not; indeed, I believed it was actually counterproductive. In fact, this has long been my primary argument against the war. But, given recent developments, I now have to concede that Bush might actually be right. The jury is still veryy much out on this question, and if Bush is not right then the invasion will clearly be the unmitigated mistake we have all thought it was at least since the myth of WMDs was exploded. But, if he is right, then we who have opposed the war have some additional thinking to do if we are to maintain that opposition on any basis other than pure spite. Specifally, to condemn the war, we have to be able to either point to another means that would achieve the same goals at a lower cost, or we have to argue that the benefits of achieving the goals were not worth the costs involved.

On the first of these questions, I do not think one can point to diplomacy as a "less costly but equally effective" means. True, diplomacy is less costly than war. It is also true that negotiation, engagement, incentives, disincentives and other tools of diplomacy (together with what we Americans tend to think of as the historic inevitability of liberal democracy) might well have eventually resulted in Arab liberalization at a far lower human cost than resulted from military action. But that argument involves an implict rejection of a part of the original goal. Diplomacy might welll have worked, but it unquestionably would have taken years, even decades. The goal, here is to significantly accelerate this process in pursuit of a near term reduction in the threat posed by Islamic terrorism. It strikes me that military intervention was probably the only effective means to achieve that goal.

But, was military intervention in Iraq necessary? At the time that decision was made, we had already overthrown the Taliban and were in the process of trying to build a more liberal regime in Afghanistan. Why wasn't that enough? Why did pursuit of liberalization require two examples. It is here that I think the defense of the invasion of Iraq is weakest. (For a more detailed exposition of why I think this, see my critique of a William Safire Op-Ed piece back in Decemeber).

But let's set that point aside for a moment and get to what I think was the real issue behind my friends' ends-versus-means questions: even assuming that pursuit of liberalization in the Arab world was a worthwhile goal and even assuming that an invasion of Iraq was the only effective means available for pursuing that goal, were the benefits that would flow from achieiving that goal worth the costs that invasion imposed on the people of Iraq and on America itself? I presume from their question that my friends believe they were not. I am considerably less certain about that.

First, let's look at the issue from an entirely selfish point of view. I believe that reducing the threat terrorism poses to America and to the developed world as a whole is, by far, the Nation's single most important imperative. For that reason, I am a whole-hearted supporter of the invasion of Afghanistan despite the suffering it caused to the Afghan people and, to a much lesser extent, to the American people. Also, I believe that political liberalization of Arab governments is ultimately a condition precedent to reducing that the threat of Islamic fundamentalism. Thus, if I were convinced that, like the invasion of Afghanistan, the invasion of Iraq were the lowest cost effective means of achieving that end in the near term, I would be in support of that war as well, depite the suffering that it imposed on the Iraquis and the addittonal suffering it imposed on Americans.

But, the benefits of liberalization do not end there. Liberalization unquestionably has benefits for the Iraquis themsleves. For those living today, the balance between the costs and benefits may be a very close one. But if perspective is broadened to include future generations of Iraquis as well as present and future generations of citizens of other Arab countries, then I don't think the is pretty clear. As horrific as the suffering in Iraq has has been and will continue to be, if the result is a stable, relative free Iraq, and a growing liberalization throughout the Arab world, I believe the suffering will have been "worth it" even we ignore the benefits to American interests and security (which we should not, by the way).

In short, the issue for me comes down to this: First, will the invasion of Iraq and Afghanistan prove to have been effective in promoting liberalization in those countires and in the rest of the world? Second, was it necessary to those ends to invade Iraq as well as Afghanistan. If the answer to both of these question is "Yes", then I believe the invasions will ultimately be found to have been worth their costs.

Sooner or later, we will be able to answer the first of these questions. Probably we will never be able to answer the second. And for that reason, I will never be entirely comfortable with the decision to invade Iraq, even if it does result in the liberalization Bush claims it will.

The Latest on Enemy Combatants

Yesterday, Judge Henry F. Floyd of the US District Court for South Carolina held that Jose Padillla, an American citizen arrested on American soil, could not properly be detained as an "enemy combatant" and must be either charged as a criminal defendant or released. The case, Padilla v. Hanft, is the third lower court decision to come out of the Supreme Court's trilogy of enemy combatant cases last summer.

In Hamdi, the Supreme Court held that the "Authorization For Use Of Military Force" (AUMF)passed by Congress shortly after the 9/11 attacks had implicitly authorized the President to capture and detain individuals actively opposing such use of force and/or supporting those responsible for the 9/11 attacks. Thus, the court upheld the detention of Hamdi, even though he too was an American citizen, since he was captured on a foreign battlefield carrying a weapon in active opposition to US forces. Padilla, by contrast, was arrested, unarmed, by civilian law enforcement officials, at Chicago's O'Hare Airport, without a struggle of any sort.

Interestingly, though, the Hanft decision did not turn on whether Padilla was, in fact, an "enemy combatant". Indeed, given the procedural posture of the case (a motion by Padilla for summary judgment), the court was required to assume that the government's factual allegations were true: that Padilla had been in Pakistan and had returned to the United States with the intention of detonating a "dirty bomb." Assuming those contentions are true, it is hard to argue that Padilla is any less an "enemy combatant" than Hamdi was. Nevertheless, while accepting, as he had to, the Supreme Court's holding the AUMF did authorize military detention of American citizens captured on foreign battlefields, Judge Floyd held that it did not authorize military detention of citizens captured on American soil.

To my mind, this is all singularly unsatisfying. The Due Process Clause of the US Constitution provides that "No person shall be . . . deprived of . . . liberty . . . without due process of law . . . " On it's face, at least, this prohibition is directed at the government and protects any "person" whether or not the person is a US citizen. However, the requirements necessary to satisfy "due process" are not fixed but rather can and do vary with the circumstances. Perhaps it is true, therefore, as the Supreme Court held in Rasul, that the only "process" that is "due" to "enemy combatants" is an opportunity to contest the factual basis of their classification. In the case of citizens, however, the Due Process Clause is supplemented by the Detention Act, which was passed by Congress in 1950 in reaction to the internment of Japanese-American citizens during World War II. That Act provides that "No citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress."

The government argued both in Hamdi and Hanft that the Detention Act applies only to civilian detentions, not to military detentions ordered by the President in his conduct of a war. The Supreme Court side-stepped this argument, holding that, even if "an Act of Congress" was required, the AUMF provided that Act, at least under the circumstances presented by the Hamdi case.

But, the AUMF does not speak explicitly about detention at all. It provides, simply, that the President is authorized to "use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the [9/11] terrorist attacks" or "harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons." Nevertheless, the Supreme Court held that explicit authorization was not required:

The AUMF authorizes the President to use "all necessary and appropriate force" against "nations, organizations, or persons" associated with the September 11, 2001, terrorist attacks. 115 Stat. 224. . . . We conclude that detention of individuals falling into the limited category we are considering, for the duration of the particular conflict in which they were captured, is so fundamental and accepted an incident to war as to be an exercise of the "necessary and appropriate force" Congress has authorized the President to use.

The capture and detention of lawful combatants and the capture, detention, and trial of unlawful combatants, by "universal agreement and practice," are "important incident[s] of war." Ex parte Quirin, 317 U. S., at 28. The purpose of detention is to prevent captured individuals from returning to the field of battle and taking up arms once again. . . .

In light of these principles, it is of no moment that the AUMF does not use specific language of detention. Because detention to prevent a combatant's return to the battlefield is a fundamental incident of waging war, in permitting the use of "necessary and appropriate force," Congress has clearly and unmistakably authorized detention in the narrow circumstances considered here.

But, if that is the case, how is Padilla different from Hamdi? The premise of the Hamdi decision was that the United States was at war with Afghanistan and more broadly with Al Queda. If Padilla, acting as an agent or supporter of Al Queda, was plotting to commit a terrorist act (as Judge Floyd was required to assume for purposes of ruling in the motion for summary judgment), then how can the government's interests in his detention be any less (or any less authorized by the AUMF) that they were in the case of Hamdi? The fact that Hamdi was captured abroad while Padilla was captured here hardly seems to be a principled reason for different treatment. Suppose Padilla had been a part of a guerilla force invading the United States? In short, I have to agree with the government that the issue of where an "enemy combatant" is captured is a meaningless distinction, especially in reference to deciding what was and was not authorized by the AUMF.

Yet, at an intuitive level, Judge Floyd's decision seems unassailable. And, if Judge Floyd is right, yet Padilla cannot distinguished in any meaningful way from Hamdi, then perhaps it is the Supreme Court's decision in Hamdi that deserves to be questioned.

It seems to me that Justice Scalia, in his Hamdi dissent, may actually have the "right" answer. Yes, the exigencies of a battlefield do allow military commanders to detain people opposing them for some period of time. But, within a fairly short period of time, those authorities have to process these detainees into two categories: non-citizens and citizens. Non-citizens captured on a battlefield can be detained for the duration of the conflict so as to prevent them from returning to the battlefield, but must be released as soon as the conflict ends. Citizens, by contrast, must either be released or charged with a crime regardless of whether the conflict is ongoing.

But what crime could Padilla and Hamdi be charged with. In Padilla's case, if the government's contentions are true and provable, the potential criminal charges are probably myriad: conspiracy to commit murder being only the most obvious. But what about Hamdi. He was, arguably, "just a soldier" captured on a battlefield, no more guilty of a crime than any of the POWs captured by the US in WWII. As Scalia suggests, though, his citizenship makes all of the difference. If he truly was an enemy combatant, actively engaged in fighting US forces on a foreign battlefield, is he not, in fact, guilty of treason? This is Scalia's point when he writes:

Justice O'Connor, writing for a plurality of this Court, asserts that captured enemy combatants (other than those suspected of war crimes) have traditionally been detained until the cessation of hostilities and then released. Ante, at 10-11. That is probably an accurate description of wartime practice with respect to enemy aliens. The tradition with respect to American citizens, however, has been quite different. Citizens aiding the enemy have been treated as traitors subject to the criminal process.

Citizenship, in short, is a two-edged sword. One edge cuts against the government, limiting the government's incarceration power (primarily) to cases where the citizen is charged with, tired within a reasonable time for, and convicted of a crime. The other edge, however, cuts against the citizen, imposing upon him obligations not imposed on aliens. Principal among these, of course, is to refrain from taking up arms against his country and/or aiding an abetting an enemy with which his country is at war.

The difficulty with this is that the government, despite being convinced that the citizen is planning to commit a terrorist act or has been actively engaged in aiding and abetting an enemy in a time of war, may not be able prove that fact with sufficient certainty to secure a criminal conviction, either because the evidence does not reach the "beyond a reasonable doubt" standard or because the government can not reveal the evidence without creating other, perhaps even more serious, dangers. In this case, an actual terrorist could well go free.

As this last point illustrates, these cases present a conflict of values. What do we value more, security or due process and the presumption of innocence. I, at least, come down in favor of the former. I would prefer to accept the risk that an actual terrorist will go free than to deny to a citizen accused of terrorism the due process rights to which, as a citizen, he is entitled.

Could Bush Be Right?

David Brooks had an interesting Op-Ed piece in this morning's NYT. Entitled "Why Not Here?", the piece argues -- or more precisely points out -- that Bush has succeeded in transforming the world's agenda; and further, that the transformation is positive.

The takeoff point for this is the startling acknowledgement by Walid Jumblatt that the mass protests against Syrian domination of Lebanon triggered by the assassination of Rafik Hariri were actually a result of the elections in Iraq.

"It's strange for me to say it, but this process of change has started because of the American invasion of Iraq. I was cynical about Iraq. But when I saw the Iraqi people voting three weeks ago, eight million of them, it was the start of a new Arab world."

Brooks points to other cases along the same lines: the elections in the Ukraine, the Palestian elections and the transformation underway in the Palestinian authority, and the elections in Iraq and Afghanistan themselves. But, perhaps the most startling example probably came too late to make it into Brook's column: Hosni Mubarak's call for democratic reform in Egypt:

Egyptian President Hosni Mubarak on Saturday ordered a revision of the country's election laws and said multiple candidates could run in the nation's presidential elections, a scenario Mubarak hasn't faced since taking power in 1981.

The surprise announcement, a response to critics' calls for political reform, comes shortly after historic elections in Iraq and the Palestinian territories, balloting that brought a taste of democracy to the region. It also comes amid a sharp dispute with the United States over Egypt's arrest of one of the strongest proponents of multi-candidate elections.

Is it possible that Bush is right? Is it possible that the invasions of Iraq and Afghanistan and the subsequent efforts to build democracies there will, in fact, work a positive transformation in the rest of the Arab world, or indeed in the world at large?? It's hard for someone who has been as opposed to the invasion of Iraq as I have been, and who is as much a devotee of realpolitik and as much a cynic about the role of ideals in international relations as I am, to countenance such a possibility. But, even I have to admit that there does seem to be a least a possibility that Bush's actions may end up working an historic and profoundly positive change in the world.

Never one to abandon cynicism too quickly, I should note that pursuit of liberty for the world's oppressed peoples was not Bush's original goal in going into Iraq. That was simply a post-hoc rationalization for what was actually an exercise of pure power motivtaed primarily, I believe, by personal animosity. Thus, if something good does come from it, it will be much more the result of serendipity than planning or intent. But still, this flowering of hope, however brief it turns out to be, is a reminder that ideals do have power, even if the person wielding them is doing so cynically.

Taking off on an earlier Op-Ed piece by Stephen Sestanovich, Brooks suggests, first, that the ability to envision and to pursue new worlds -- to jump in where angels fear to tread, as it were -- is to some extent America's role in the world, and second, that great change comes not from "realistic" incrementalism, but from the pursuit of the maximalist outcome. As Brooks and Sestanovich acknowledge, and as Iraq itself demonstrates, this impetuousness can, perhaps inevitably does, result in enormous human suffering in the near term. But if the result is a significant liberalization of the Arab world and a change in the way America is viewed there, it is difficult to say that, from humanity's point of view, the suffering was not worth the candle.

The Pope and The Enlightenment

Sylvia Poggioli had a piece on NPR's Morning Edition today describing the Pope's new book: Memory and Identity. Since I have not read the book, I can't vouch for the accuracy of Poggioli's reporting on its contents. However, that's really beside the point. Even if the Pope did not say what Poggoli attribues to him, the characterization itself captures something deeply troubling about the world today.

According to Poggioli, the book's major thesis (or at least one of its major theses) is that Europe is the epicenter of the war between good and evil (with Nazism and Communism being the most obvious examples of the latter) and that the primary source of this evil is . . . . The Enlightenment (!). Again according to Poggioli, the Pope argues that the source of Nazism and Communism, as well as more generalized evils like abortion, homosexuality, divorce, etc., is the widespread acceptance of the Enlightment's emphasis on reason and individuality as opposed to spirituality and unity with/dependence on God.

My first reaction was to laugh out loud. I suspect it would be pretty easy to show that far more evil has been (and is being) perpetrated in the name of God (or more broadly "true belief") than ever was or will be perpetrated in the name of man or reason. But my second thought was a more sobering one: There are a lot of people out there that agree with this thesis.

I am certain this is not a new observation, but much, if not most, of the conflict in the world today springs from a conflict between reason and individuality on the one hand and faith and forced conformity on the other. To some extent, of course that battle has been going on for centuries if not millenia. But right now, the latter values are in the ascendency. Indeed, even those who espouse the the political fruits of the Enlightment -- liberty and democracy -- do so on explicitly religious or quasi-religious (i.e. jingoistic) bases. Witness W's inaugural address.

I find this profoundly scary. A rejection of reason and individuality in favor of faith and conformity as the bases for human decision-making would be a catastrophe of the first order. Yet, that is exactly what is going on in today's world. I want to believe that this is only temporary: one of those pendulum swings that is eventuially self-correcting. But we are, it seems to me, getting close to a tipping point in this struggle, and if we go very much farther along the continuum, a correction could well take a very long time. Faith is ultimately totalitarian, with the true believers brooking neither dissent nor departure. Once such people actually achieve political power, the time and suffering required to reverse the process can be enormous.

Sex (Mis)Education: Kanute-like Bush demands that the tide stop coming in

Nicholas Kristoll has a good Op-Ed piece in today's NY Times regarding the Bush budget priorities regarding sex education. According to Kristoff, amidst the sea of cuts in other domestic spending (on the grounds of of "ineffieciency" and/or "duplication"), "one program is being showered with additional cash - almost three times as much as it got in 2001. It's "abstinence only" sex education[!]"

Note, we are not talking about here about teaching the advantages of abstinence backed-up with education on contraception. We are talking about sex educatiuon that ignores contraception (even the rhythmn method) altogether and preaches only abstinence. Apparently, the Bushies believe that refusing to inform high schoolers about contraception is an efficient means of battling pre-marital sex, unwanted pregnancies and abortion, all of which it also comdemns.

Kirstoff sums up these "efficiencies" with some comparative statistics:

Other developed countries focus much more on contraception. The upshot is that while teenagers in the U.S. have about as much sexual activity as teenagers in Canada or Europe, Americans girls are four times as likely as German girls to become pregnant, almost five times as likely as French girls to have a baby, and more than seven times as likely as Dutch girls to have an abortion. Young Americans are five times as likely to have H.I.V. as young Germans, and teenagers' gonorrhea rate is 70 times higher in the U.S. than in the Netherlands or France.

The theory of abstinenece only programs is that, if we tell kids about all of the bad things that can happen to them if that engage in pre-marital sex but deprive them of reliable information on any ways other than abstinence to prevent those bad things from happening, kids will be scared out of having sex before marriage. Could any theory possibly be more preposterous?

Grand Strategy

Courtesy of Henry at Crooked Timber, Stephen Walt's article on US Grand Strategy in the Boston Review is well worth reading. It's worth reading, of course, because he agrees with me! Seriously, though, he does pull together, in a very readable article, lot of the strands of thought have appeared here at various points over the last several months.

Tid-Bits

Lots of interesting stuff in the papers today.

Newt's Legacy: Ever Bigger Government: "The Revolution That Wasn't"in the NYT Week In Review chronicles how Newt Gingrich's famous "Class of 1994" has learned to love big government. Newt himself is quoted as saying that "Republicans have lost their way." Many have noted this odd reversal, as well as the increasing identification of today's Republican's with yesterdays' Democrats (and vice versa), but there is a special irony seeing the New York Times sympathetically quote with Newt Gingrich on the role of government.

China and Korea -- and Engagement as a Strategy For Regime Change: A propos of my question "Where's China?," maybe she's moving in the right direction: "Chinese News Media Critical of North Korea. Let's hope that this is more than just venting by the Chinese government and actually presages active efforts to end the North Korean nuclear threat. Also, hearkening back (again) to Robert Wright's essay "The Market Shall Set You Free" (discussed here) there is this from the same article:

But the Chinese news media have stopped short of suggesting a popular idea among some of North Korea's harshest critics in the Bush administration: trying to change North Korea's government by sending in radios, or other steps to help the country's residents realize how poor and isolated they are.

That idea drew support in Japan on Saturday from Robyn Lim, a Nanzan University professor influential in defense policy circles, who wrote in an essay: "The crisis will be resolved either by war or by regime change. Let's try for regime change."

I have been unable to find either Robyn Lin's essay or sourcing for the statement that some in the Bush administration are thinking about "sending in radios, or other steps to help the country's residents realize how poor and isolated they are." But I like the idea that "regime change" is an alternative to "war" and that even some of the Bushies may be thinking of engagement is a method for achieving regime change. (Might I also renew my colleague's suggestion of bombarding them with LL Bean catalogues and pre-paid Visa cards as a supplement to radios?). As I argued here, engagement is probably the only course available to the United States that holds much promise.

Detention, Torture and the Reach of the Bill of Rights: Then there is this report on claims by the recently released detainee, Momdaouh Habib, that he was tortured (beatings, electric shock, cigarette burns, psycho-sexual humiliation, etc.) during the 40 months he was held by US forces. As a human being and an American I can only hope that these claims are untrue. But as a lawyer, what I am most interested in is the right of such people (non US citizens) to bring claims like this before the US courts during their detention. As discussed previously here, here and here, both the Supreme Court and the lower courts have been nibbling around the edges of this issues for some time.

The state of the law right now is that non-citizens held at Guantanamo do have a right to seek a writ of habeas corpus, but there is a split among the lower courts as to whether they have any constitutional rights that can be vindicated via that writ. Further, the only constitutional right currently identified as being potentially applicable is the right to challenge the factual basis for the government's classification of the detainee as an enemy combatant. Finally, even this right has so far come up solely in the context of detainees held at Guantanamo, where the US exercises plenary jurisdiction. Thus, it is unclear whether non-citizens can object to their torture even in Guantanamo, and non-citizen detainees held in US custody outside of US jurisdiction may have no rights at all. In short, for people like Habib, who is an Australian citizen detained and allegedly tortured by US forces in Pakistan, Egypt and Afghanistan long before arriving at Guantanamo, the current state of the law provides no obvious avenue for challenging either his detention or his torture. This is simply wrong.

I am not now going to attempt a detailed legal analysis of any of this. Rather, I want to make a normative statement: the Constitution -- and particularly the Bill of Rights -- imposes certain restrictions on the federal government. The Fifth Amendment provides that "No person shall be deprived of . . . liberty . . . without due process of law", and the Eighth Amendment provides that "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted". Neither of these restrictions is expressly limited to particular geographic locations, nor does either distinguish between citizens and non-citizens. Rather, based on the literal language, each operates as a limitation on the activities in which the government can engage anywhere and with respect to any person.

It may be years, even decades, before the incrementalist approach used by courts brings the law into alignment with these principles. But in an era where the US government is projecting its power over more and more foreign nationals in more and more geographical areas over which it has no formal jurisdiction, it is essential that the courts eventually do get there. And, the sooner the better.

Duty to Die? Finally, there is this, from the AP, a truncated version of which I found in my own hometown paper, the Toledo Blade: "Inventor Kurzweil Aiming to Live Forever." The article reports on a new book by Ray Kurzweil, whom the article indicates is no crackpot, entitled "Fantastic Voyage: Live Long Enough to Live Forever." In the book, Kurzweil apparently argues that science is within 20 years of achieving breakthroughs that will allow us to live forever:

Kurzweil writes of millions of blood cell-sized robots, which he calls "nanobots," that will keep us forever young by swarming through the body, repairing bones, muscles, arteries and brain cells. Improvements to our genetic coding will be downloaded via the Internet. We won't even need a heart.

As noted in the article,"Critics say Kurzweil's predictions of immortality are wild fantasies based on unjustifiable leaps from current technology." But, it seems that the biggest dispute is over timing, not the end result. And, even if the goal of immortality proves illusive, I don;t think anyone argues that there is a real, near term potential for dramatically increasing life expectancy. This very thought is one of the issues informing and bedeviling the debate over social security reform.

But whatever the prospects, this raises a thought that I have been mulling over for a couple of years. Don't we, as individuals, have a duty to die at some point? I am not suggesting that this is a duty to be enforced by the state or third parties. Rather, it is more like a duty we all recognize to leave the table at a crowded restaurant once you have finished eating. It stems, in the end, from simple good manners and consideration for others. Perhaps, someday, if colonization of the universe becomes practicable, we can think about living forever. But until then, the "table" we share with the rest of humanity is finite, and at some point it seems like we ought to be willing to say "I have had enough" and make room at the table for someone else.

Thoughts anyone?

Oh Korea

I have wanted to write about the North Korea mess ever since the reports came out that (e.g. this one from the NYT) of North Korea had again claimed -- this time very publicly and explicitly -- that it possessed nuclear weapons and was prepared to use them in the event of a US-led attack. It is possible that this claim is only a bluff, but Administration seems to believe it is not, and, despite the Administration's miserable intelligence record in the recent past, I tend to think they know what they are talking about in this case. Moreover, the prospects of nukes per se is only part of the problem. The other part is that the North Koreans clearly do have weapons grade materiel and are demonstrably willing to sell that materielto people who wish us ill.

So, what do we do? Aaaah. Now THERE's the rub. My delay in trying to actually suggest something on this question is a reflection of the fact that I have no frickin' idea! I still don't, but I am encouraged to write nontheless by the fact that I am not alone in my confusion. See, e.g., The NYT Editorial Borad, Daniel Drezner, One hand Clapping, and the links they provide. So far as I can tell some of the biggest voices in blogdom have, like me, either very little (e.g. Kevin Drum, Instapundit, and Laura Rozen) or nothing at all (Matt Yglesias and Crooked Timber) to say about the issue.

I will admit that my first reaction is "nuke the sumbitch before he nukes us!" But even if we could ignore or accept the unthinkable humanitarian consequences (which we or at least I cannot), the unceratinty about the geoploitical consequences makes this option unthinkable.

Nichloas Kristoff comes as close as anyone I have read to propsing a potentially workable approach to the issue in his NYT Op-Ed piece on Wednesday:

The other option is the path that Richard Nixon pursued with Maoist China: resolute engagement, leading toward a new "grand bargain" in which Kim Jong Il would give up his nuclear program in exchange for political and economic ties with the international community. This has the advantage that the best bet to bring down Mr. Kim, the Dear Leader, isn't isolation, but contacts with the outside world.

This is essentially the same approach that Robert Wright advocated more generally in his Op-Ed piece (discussed here) a couple of weeks ago. The problem with the engagement approach, though, is that it assumes that the leadership of the target nation is at least rational and is not bent on sending his nation back into the stone age. There is little in the public record that would justify such an assumption about Kim Jong Il. In this reagrd, the Bushies may (for once) actually be right in assumimg that Kim will take whatever he can get out of engagement and welch completely on his supposedly reciprocal pledge to abandon his nuclear wepons program.

I think Wright is correct when he argues that "[i]nvolvement in the larger capitalist world is time-release poison for tyranny." Thus, in the loing run, I think the engagement strategy will work. But in a case like North Korea, the "long run" is probably to be measured in decades, rather than years.

There simply are no good choices for the Administration here. And, that may be the scariest part of all. Does the Administration that brought you Iraq have even the most remote chance of successfully negotiating the shoals posed by North Korea? The record so far suggests not. But many, just maybe, they have learned a thing or two over the last four years. And, maybe just maybe, they will find a way through this thicket. If they do, I will forgive them a lot.

Beyond this, my one question is where the [heck] is China? Surely the idea of a nuclear North Korea is at least a big a concern for China as it is to us. And, they unquestionably have a far greater ability to actually control old Kim that we do. This is China's chance to really emerge as a player in terms of maintaining world peace and security. Let's hope she grasps that opportunity -- for her own sake as well as ours.

Another Round With The Israeli Right

Nothwitstanding the acrimonious denoument of my earlier discussions with Yuval and company (posted here, here, here, and here), and my own admonition to myself to refrain from getting involved in such discussions again, I couldn't resist, and I got involved in another debate this week, this time with Rob Vincent. The following is not the complete debate. At one point, I got tired of being called obtuse, ignorant and bigoted, and started responding to the tone of Rob's message rather than their substance. Although I think this interlude is actually sort of amusing, I have omitted it here.

Background: On Saturday, February 5, I (and many others) received an e-mail from Yuval, forwarding -- with extravagent praise -- an essay by Dr. Michael Anbar entitled "A Constructive Solution." The essay makes for interesting reading, but is a bit long for inclusion here and I have been unable to find a link to it. However, it took the position that, in addition to the conditions President Bush has laid out for the creation of a Palestinian state (in Anbar's characterization: a permanent stop to Arab terrorism, dismantling of terrorist organization, and the establishment of genuine democracy in the proposed new Arab state, which is expected to live in peace with the Jewish sate of Israel):

there must be two additional, absolutely necessary conditions to allow Israeli recognition of that new Arab state. These conditions are:

1. That the Arabs recognize that their new state includes major parts of the ancient Jewish homeland, even if for the sake of peace the Jewish nation is ready to give up sovereignty over those territories. . . . [and]

2. That Jews can continue to live on legally acquired property in the new Arab state [i.e. the West Bank and Gaza settlements can continue to exist] and that this centuries-old legal right of residence of non-Muslims in the Holy Land will not be abrogated by the government of the new Arab state.

Andar concludes his essay with the following:

Ideal peace in the Middle East will take place only when the whole world, Christians and Muslims, Buddhists and Hindus, will agree that in the Land of Israel, no Jew lives on "Arab land". On the contrary, it is the Arabs who live on ancient Jewish land. This situation can not be changed, even if Arabs are granted political sovereignty over parts of this land.

I agree with none of this, of course, especially the part about there being no such thing as Arab land in Palestine, but I refrained from replying. Then, on Wednesday, February 9, Rob Vincent forwarded to me (and others) the following sermon, apparently broadcast on official Palestinian Authority television on February 4, 2005 by Imam Ibrahim Mudyris, who, according to the report Rob forwarded (from the Palestinain Media Watch) is senior Islamic cleric delivering the official PA Friday sermon (note: the ellipses are in the original from the PMW):

We do not love any land more than the land of Palestine. Had the Jews not expelled us from it with their planes, their tanks, their weapons, their treachery around us, we would never leave you, O Palestine. [Quotes Muhammad, who promised he would return to Mecca as a conqueror].

We tell you Palestine, we shall return to you, by Allah's will. We shall return to every village, every town, and every grain of earth which was quenched by the blood of our grandparents and the sweat of our fathers and mothers. We shall return, we shall return. Our willingness to return to the 1967 borders does not mean that we have given up on the land of Palestine. No!

We ask you: Do we have the right to the 1967 borders? We have the right. Therefore, we shall realize this right with any mean it takes. We might be able to use diplomacy in order to return to the 1967 borders, but we shall not be able to use diplomacy in order to return to the 1948 borders.

No one on this earth recognizes [our right to] the 1948 borders [before Israel's existence]. Therefore, we shall return to the 1967 borders, but it does not mean that we have given up on Jerusalem and Haifa, Jaffa, Lod, Ramla, Natanyah [Al-Zuhour] and Tel Aviv [Tel Al-Rabia]. Never.

We shall return to every village we had been expelled from, by Allah's will. Why? All the international laws deny the Palestinians their real borders. We might agree, but in the name of Allah, our grandfathers' blood demands that we return to them [the borders]. Your fathers' blood was shed there, at the villages, at Ashqelon, at Ashdod, at Hirbia [a village between Gaza and Ashqelon, where Kibbutz Zikim is located today] and at others places, hundreds of villages and towns. [Their blood] demands it from us, and it shall curse anyone who will concede a grain of earth of those villages.

Our approval to return to the 1967 borders is not a concession for our other rights. No!... this generation might not achieve this stage, but generations will come, and the land of Palestine... will demand that the Palestinians will return the way Muhammad returned there - as a conqueror."

Rob offered the following comment on this speech:

Well, obviously, this whole "peace honeymoon" that has been ushered in since the PA elections last month is a complete sham. Unless the PA leadership takes the step of formally recognizing Israel's right to exist as a Jewish state, to include amending the Palestinian Charter accordingly, as well as making the requisite public declarations over their own media in Arabic, their alleged moves towards peace are little more than a painful charade to watch.

Even these steps would only be a beginning; the Palestinians would have to follow through with a lot of measures beyond mere formal recognition if they were really serious about peace, but the fact is that they obviously won't do even this.

What will it take before people realize and face up the the plain, obvious truth about the Arabs generally and the Palestinians in particular?

And, with that, we were off to the races:

From: Patberg, William
Sent: Wednesday, February 09, 2005 2:32 PM

Rob --

I don't know if you sent this to me on purpose or by accident, but if the former, let me make a brief observation. To my ears -- as an outsider with no particular ax to grind in this debate -- the Imam's] speech . . . seems indistinguishable (except in direction, of course) from the thesis advanced in Michael Anbar's essay "A Constructive Solution" that Yuval distributed -- with high praise -- last Saturday. (copy attached). If there is a difference, I'd be interested in hearing what it is.

Bill

From: Robert Vincent
Sent: Wednesday, February 09, 2005 4:31 PM

Bill,

It was on purpose, and the differences are huge.

First, Dr. Anbar is not necessarily against Palestinian Arab sovereignty over the disputed territories, he clearly does not rule this out. He only asks that the Arabs recognize that these areas include pieces of real estate that are associated with the traditional Jewish homeland. In so doing, they would thus implicitly concede that there is indeed such a thing as a legitimate, historically supported political/geographic entity as a Jewish homeland.

Second, he only asks that Jews who currently live in areas that might become part of a future Palestinian Arab state be afforded the same basic human rights that Arab Israelis living in pre-67 Israel now enjoy, which is to be treated at least nominally, before the law, as citizens with the same rights as their Arab neighbors, and this includes the right to own property (something that is expressly forbidden to Jews by the Jordanian constitution, for example). Unless Jews are living on land that has been directly and forcibly appropriated from Arab owners, as is sometimes alleged, why should they have to leave, as the Arabs frequently and noisily demand? If they want to live near areas of religious significance to them, and if they are willing to accept local Arab sovereignty, why shouldn't they be allowed to stay and enjoy equal rights and protection under the law?

By contrast, the speech by the Imam quoted below asserts that Israel, as a Jewish state apart from Arab sovereignty, has absolutely no legitimate right to exist, and must be eliminated in total. (Some might argue that a call for the Israelis to "return to the borders of 1948" might mean that they require Israel to return to the borders set out by the original UN partition plan, which is about half the size of even pre-67 Israel. Even this is obviously neither just nor practical, but even if this were what was meant, why won't the Palestinians even formally acknowledge the right of Israel to exist in any form? Why do all of their maps and their textbooks depict all of what we know as Israel as "Palestine", inclusive of these areas?)

Have I sufficiently clarified this issue?

Regards,

-Rob

From: Patberg, William
Sent: Wednesday, February 09, 2005 6:21 PM

Rob --

Well, maybe I am reading the sermon too literally, but I don't see where it calls for the destruction of Israel or asserts that "Israel, as a Jewish state apart from Arab sovereignty, has absolutely no legitimate right to exist, and must be eliminated in total." Read literally, it asserts only an intent to "return" to the lands the Palestinians lived on in 1948, and it does not, explicitly at least, rule out the possibility that Israel will retain jurisdiction over these areas.. True, the last three words of the speech promise that the return shall be "as a conqueror." However, a charitable reader (which I understand you are not inclined to be) could chalk this up to a recognition that Israel would never agree to allow such a "return". However, if Israel would agree, as Dr. Anbar suggests the Palestinians should agree to his proposal, then the speech can be read simply as an insistence (to modify Dr. Anbar's proposal slightly):

1. That the Israelis recognize that their new state includes major parts of the ancient Palestinian homeland, even if for the sake of peace the Palestinian nation is ready to give up sovereignty over those territories.

2. That Palestinians can continue to live on legally acquired property in the new Israeli state and that this centuries-old legal right of residence of non-Jews in the Holy Land will not be abrogated by the government of the new Israeli state.

As to your broader question: I don't think it's particularly useful to talk about "the Palestinians" as if they were an undivided entity. Like "the Israelis," "the Palestinians" speak with many voices and have many views on the future of relations between the two peoples. Many of those voices clearly do recognize Israel right to exist. And, as to the Palestinian leadership, I think it has formally recognized Israel's right to exist in at least one forum: the Oslo accords. Moreover, the negotiations between the PA and the Israeli government that have occurred and are occurring constitute a pretty convincing de facto recognition as well.

On the issue of maps and text books -- and the founding documents of the PLO and other groups purporting to represent the Palestinian people -- I sympathize with you. They are and will continue to be big, big impediments to a reduction in the level of mistrust by the Israelis. But, what is it you would have them do here? Create maps that show Israel but do not show any Palestinian state? Create maps that show a Palestinian state that does not exist? Do Israeli maps show a Palestinian State on them? Does that mean that Israel does not recognize the right of such a state to exist? My sense is that neither side is doing a very good job of trying to reassure the other that it recognizes the right of the other to exist.

Bill

From: Robert Vincent
Sent: Wednesday, February 09, 2005 10:07 PM

Bill,

Yes, I think you are taking this sermon a bit too literally, to put it charitably. The implications are obvious. Take the quote below

"No one on this earth recognizes [our right to] the 1948 borders [before Israel's existence]. Therefore, we shall return to the 1967 borders, but it does not mean that we have given up on Jerusalem and Haifa, Jaffa, Lod, Ramla, Natanyah [Al-Zuhour] and Tel Aviv [Tel Al-Rabia]. Never."
Now, he is talking about "borders" here. By borders, I don't think it takes a rocket scientist to figure out that he is talking about sovereignty, not merely a "right of return". The following quote is even more explicit:

"Our approval to return to the 1967 borders is not a concession for our other rights. No!... this generation might not achieve this stage, but generations will come, and the land of Palestine... will demand that the Palestinians will return the way Muhammad returned there - as a conqueror."

When he is talking about what future generations will accomplish, he is pretty obvious in his intentions. I don't think refugees merely asking for a "right of return" would use the word "conquerer" in the same context, as even you concede. Taken along with the rest of this polemic, c'mon, what other conclusion can one reach, Bill??

Now, as to your little hypothetical below, it is utter nonsense. The Palestinians simply cannot call Israel, the disputed territories, or anything else for that matter, their "ancient homeland".

I do not deny that the Palestinians Arabs constitute a national ethnic group. As such, I concede that as such, they have existed since 1964, when the PLO was formed. Prior to that time, I challenge you, or anyone else for that matter, to come up with anything resembling convincing historical evidence that a coherent national ethnic entity known as the "Palestinians" existed before that time.

There never was a self-governing nation known as "Palestine". Not in antiquity, not ever. They never had a king (as the ancient Jews did), they never coined money (as the ancient Jews did), there are no references whatever prior to the second half of the twentieth century to distinctly identified "Palestinian" Arab authors, artists, leaders, philosophers, etc. Prior to the establishment of modern Israel, the Arabs that lived in what is Israel today were known as simply that - Arabs - not "Palestinians" as a distinct segment of Arabs. I challenge you to prove to me otherwise.

The region wasn't even referred to as "Palestine" until the Romans kicked the Jews out, and they (the Romans) only gave it that name in order to underscore the fact that the Jews had been kicked out, in order to "add insult to injury", as it were. The Ottomans who succeeded them, and who ruled the region for a longer unbroken period of time than anyone else, didn't even call the area "Palestine". They called it (or the bulk of it) "Southern Syria". What is commonly understood as "Palestine" today was divided among several Ottoman provinces: the provinces of Beirut and Damascus respectively, while Jerusalem was administered as a separate district that reported directly to the Ottoman sultan.

The name "Palestine" itself is derived from the word "Philistine", a name given by the Jews of antiquity to one of a number of Aegean peoples ("Sea Peoples", as they were referred to by the ancient Israelites) who had established themselves on the coastal plain of present-day Israel, with whom the ancient Hebrews competed for local control of the area. In all likelihood, these "Philistines" were not even ethnic pre-Moslem Arabs at all, but could very easily been Hellenic peoples.

The Palestinians, as a distinct people, were established in the wake of the creation of Israel, in direct opposition to the same. OK, this is not the first ethnic/national/political grouping to develop a distinct identity in opposition to someone else (after all, we Americans found our national consciousness within the context of rebellion against British colonial rule, although far be it for me to flatter the Palestinians with a comparison to our Founding Fathers). Everyone has to start somewhere, and that having been said, I'll concede that the starting point for the "Palestinians" is 1964. They are a national group, but one of very recent vintage. So puleeeze, don't feed me this crap about the Palestinians' "ancient homeland" within the borders of Israel. You want to uncritically accept their bullshit propaganda hook line and sinker, that's your choice, but don't expect me to buy that line. Looking at the broad sweep of history (not merely the last fifty years), by any of the basic measures of what constitutes a "nationality" -unique language, common history/folklore, common point of geographic origin - the Jews have this in spades, and the Palestinians have, well, bopkess (that's "goat shit", in case you didn't know).

To the extent that the Palestinians DO have a strong, robust claim to a "national homeland", I'd say that the evidence overwhelmingly points to a place called JORDAN. After all, Jordan was part and parcel of the British Mandate of Palestine, and the clear majority of the inhabitants of present-day Jordan are Palestinian Arabs. They are ruled over by a monarchy, the Hashemites, imported from the Arabian peninsula, and installed by British colonial authorities in the 1920s. Over the course of 1970-71, elements of the PLO, then based in Jordan, agitated to overthrow the monarchy and establish majority - though hardly democratic - rule. In July of 1971, they were crushed mercilessly by the Jordanian Army. Thousands of civilians killed, the PLO kicked into southern Lebanon, where they then proceeded to destabilize THAT country, leading to civil war, invasion by Israel provoked by their terrorism, etc., etc. Rather curious how little one hears about all of this........

As to some of your other points:

"De facto" recognition, as you call it, means absolutely nothing. Even if there are some Palestinian individuals who recognize Israel's right to exist (and I've yet to hear of any who say this unequivocally, as in, "right to exist as a Jewish State"), if they are not in positions of authority, this is pretty meaningless in practical terms. And no, like I told you a while back, the Palestinians never did recognize Israel's right to exist as a Jewish state at Oslo. All they did in 1993 was to make a promise to amend their charter to reflect this, but they never actually got around to doing this. In 1996 they held a conference at which they were supposed to do this, but while they debated the issue, they never did ultimately modify their charter. Anyway, I will not belabor this point any further. Don't take my word for any of this. Just watch the news, and watch how all of this unfolds. Here's what will happen over the next few months:

-Abbas and/or Hamas will make very vocal demands that the Israelis concede on some point that they cannot possibly concede on (e.g., right of return for all Palestinian refugees, plus their descendants, to anywhere in Israel, and/or sovereignty over the Old City in Jerusalem [that's three quarters of Jerusalem, including the Wailing Wall]).

-In parallel to the above, Hamas or some other terrorist group will use the cease fire to begin preparations for a new wave of attacks.

-This second item noted above will put the Israelis in a very difficult position. The Israeli intelligence services will surely detect these preparations. What will they do? Break the cease fire and attack the terrorists? Or allow innocent Israelis to be killed first just so as to avoid being accused of breaking the cease fire? Put in a different light, what do you suppose we would do? Suppose the EU or China offered to broker a deal between the U.S. and Al Queda, we found out they were preparing another 9-11, but we were hesitant to react because we didn't want to be accused of breaking this hypothetical "cease fire". Doesn't that sound absurd??? Yet this is the position Israel is being placed in!!

-And consequently, using the failure of the Israelis to meet their ridiculous demands as an excuse, one way or the other, the fighting erupts again, and in the eyes of many, manipulated by the Arabs and their useful idiots elsewhere, Israel is the "bad guys" again. Just like after Camp David in 2000. Like Lucy snapping the football out from under Charlie Brown yet again. Why do so many fail to see this pattern? Why don't you, Bill??

Your observation regarding Palestinian textbooks is absurd. What would I have them do? Well, if their intention indeed is to create an independent state in the disputed territories that lives side by side with Israel, in peace, then the maps in their textbooks can damn well reflect this intention: their "Palestine" in the disputed territories, and at the very least, pre-1967 Israel right next door. This is a no-brainer. "Do Israeli maps show a Palestinian State on them?"...Well, of course not, as there is as yet no Palestinian State as such! And if one is created, I'm sure the Israeli cartographers will oblige them accordingly. But you see, there IS a currently existing Israeli State, and the Palestinians can't even so much as acknowledge this basic reality to their schoolchildren (along with much of the rest of the Arab and Moslem world..do you perhaps see a pattern here?!) Truly, your arguments are very tedious at times, Bill........

Which brings me to a final point for you, Bill. I understand that you are an attorney. So is my brother. Now, correct me if I'm wrong, but my understanding of that profession is that one of the most critical, fundamental skills that is required of an attorney is the ability to read, understand, and objectively analyze and interpret written documents. With that in mind, I am amazed that someone of your training would read Dr. Anbar's piece on the one hand, and that Imam's sermon on the other, and conclude that these two documents are merely "mirror images" of each other. I am further amazed that someone of your profession, one that places a premium on precedent, factual evidence, etc., would weigh in on this subject as you have with such a complete and utter ignorance of the historical and factual context that surrounds this issue.

You say that you have "no axe to grind" either way with the parties involved, but your communications betray quite the contrary, that you are more than ready to engage in mental gynastics worthy of a gold medal on behalf of the Palestinians, while casting as pejorative an eye as possible against the Jews. At the very least, like so many who aspire to be "fair-minded" about this issue, you appear to lack the moral courage to go beyond this seeming compulsion to treat both sides in this conflict as "morally equivalent". All the while, you completely miss the obvious point that the idea of acting as an "honest broker" between the two sides in this conflict would be tantamount to the U.S. acting as an "honest broker" between Britain and Germany circa 1940. Will you open your eyes already??

Rob

[NB: It is at this point that things got a bit off track, but here's the reply I ultimately sent]:

From: Patberg, William
Sent: Friday, February 11, 2005 4:29 PM

Rob –

The problem with ancient history is just that: it’s ancient. The farther back in time one goes, the less and less power history has as a basis for present day claims of right. And, when you have to go back a thousand years or more to find a basis for a claim, the claim itself becomes extraordinarily tenuous because of all on the other, conflicting history that has intervened. When we are talking periods of years or even decades, perhaps it is true that “first in time is first in right.” But when we start talking centuries and millennia, the opposite is the case. Consider, in this regard, the Sioux vis-à-vis the Americans. The Sioux have only been displaced from their ancient homeland for a matter of decades. Yet even so, I think there are relatively few who would argue that they have a "right" to displace the Americans now living on those lands and recliam it as theirs.

The gist of your argument appears to be this (my responses are in [brackets]):

· The Jews lived and had a nation of their own in the land we presently called Palestine for thousands of years until being dispersed 2000 years ago, or maybe, as Mordechai argues, as recently as 1,000 years ago. [Agreed.]

· Throughout the period since the dispersal, the Jews have remained an identifiable (and identified) people with a distinct self-consciousness and a unique language, tradition, religion and culture. [Agreed.]

· Throughout that period the Jewish people have also (to quote Dr. Anbar) “maintained . . . their aspiration to regain sovereignty over their ancient occupied homeland.” [Not so sure about this one. I recognize that a belief in a Messiah who would re-establish a Jewish State in Palestine and rebuild Solomon’s Temple has always been a part of the Jewish faith. But, in practical political terms, the movement to establish a Jewish State in Palestine arose barely a century ago and did not become a widely accepted aspiration of the Jewish people as a whole until the Second World War and the Holocaust. Nevertheless, for present purposes, I accept this premise as well.]

· The “Palestinians”, by contrast, did not even exist as an identifiable people distinct from the rest of the Arab world until 1964, at the earliest. [We could quibble over dates, but I agree with the main point. Jewish distinctiveness and self-consciousness predates Palestinian – even Arab – distinctiveness and self-consciousness by thousands of years].

· Therefore, the Jews have a far superior right to Palestine – the ancient Jewish home land -- than the Palestinians do.

This conclusion, rather than the premises, is where we part company.

Before you go apoplectic on me, I am not questioning Israel’s right to exist. What I am saying, though, is that this right does not arise out of natural law or morality or out of thousands of years of aspirations. It arises out of the fait accompli, out of the undeniable FACT that the Jews, by diplomacy, persistence, force of arms, hard work, sacrifice and, most important, force of will, did in fact create a country in Palestine. But, we have to recognize that it created this country out of lands on which other people were then living – and on which they had lived for centuries at least, if not millennia. I am not criticizing the Jews for doing this. That is exactly how the United States was formed. In fact, that is the way all nations are formed. Once formed, nations do have something like moral right to continue to exist But no nation has the right – moral or otherwise – to create (or expand) itself via the displacement of indigenous populations, whether or not those indigenous populations constitute a recognizable people or nation. The right to exist, in short, flows not from morality or aspirations or history (regardless of how ancient), but from the power to make existence a fact.

Israel’s problem today is that, unlike the Americans before them, the Israelis lack the power – indeed, even the desire – to complete the conquest and assimilation of the indigenous people who occupy the land they want. Those people have fought back, and continue to fight back, and despite losing battle after battle (as well as a lot of additional territory), they have succeeded, with the aid by Israel’s own moral compunctions, international pressure and the threat that demographics poses to the Jewishness of Israel, in bringing the expansion of Israel to a standstill at something approximating the 1968 borders.

Some Israelis and Israeli supporters (e.g. Yuval and maybe you) want or feel compelled to continue the struggle because (a) they feel that the goal of reclaiming for the Jews all of their ancient homeland is worth the suffering that the struggle imposes on Israelis; and (b) they consider the prospect for peace with the Palestinians to be illusory in any event. Others both within and outside of Israel (e.g. me) want Israel to give up on the dream and accept the creation of a Palestinian State defined by the 1968 borders because (a) the dream of an Israel that includes all of the “ancient Jewish homeland” is unattainable and not worth the cost even if it were; (b) unlike the unresolved conflicts in Tibet or the other countries Yuval mentioned in last Saturday’s e-mail, the continued conflict between Israel and the Palestinians threatens vital interests of all of the “First World”; (c) the creation of a Palestinian State worthy of the name – while it does not guarantee peace – is the only path that offers even the hope for peace in our time, or maybe ever; and (d) because there is now considerable sympathy for the admittedly new but nonetheless now very real aspirations of the Palestinian people living in the West Bank and Gaza to have a state of their own.

Reasonable minds can differ as to how Israel should respond to this stalemate. However, we delude ourselves if we suppose that there is some “moral” imperative that dictates one outcome over another.

Social Security: It's so damn SIMPLE after all!

I finally figured out what I want to do with Social Security.

After a few days absence from the blogosphere, I was browsing through Matt Yglesia's musings when I came across this response by Matt to an earlier post by Josh Marshall regarding section 4 of the 14th Amendment. Intrigued by what the 14th amendment could possibly have to do with Social Security, I followed the links and found this post from Josh, which I reproduce in its entirety:

President Bush lays the groundwork for defaulting on almost two trillion dollars worth of US Treasury bonds, from today at the Commerce Department ...

Some in our country think that Social Security is a trust fund -- in other words, there's a pile of money being accumulated. That's just simply not true. The money -- payroll taxes going into the Social Security are spent. They're spent on benefits and they're spent on government programs. There is no trust. We're on the ultimate pay-as-you-go system -- what goes in comes out. And so, starting in 2018, what's going in -- what's coming out is greater than what's going in. It says we've got a problem. And we'd better start dealing with it now. The longer we wait, the harder it is to fix the problem.

It's what they're after. Just watch.

Apparently, the subsequent discussion regarding the 14th Amendment was over whether a default wouldn't be unconstitutional.

Though I haven't given it much thought, I suspect that the Constitutional issue is pretty much a red herring. But a light did go on in my head as I read Bush's quote. The bonds in the Trust Fund are not really promises to pay money to the Social Security Administration. They are promises to pay benefits to beneficiaries. If we don't pay the benefits, there will never be any need to redeem the bonds. And, if we do pay the benefits, the necessary money is going to (can only) come from current tax receipts and/or borrowing (FICA taxes for now but beginning in 2018, a combination of FICA taxes plus other federal revenue or borrowing). So, what is the point of going through the charade of "redeeming" the bonds. That is simply a pass through anyway. Why not eliminate the middleman and recognize that current benefits are and always will be paid out of current revenues (taxes or debt).

It turns out that a commenter on Matt's post had the same idea, and took it one step farther (further? -- can anyone explain the difference between those two words?):

Abolish the payroll tax, and fold Social Security payments into the general obligations of the US government.

And, why stop there? Let's get rid of the Medicare tax and fold those obligations into the general obligations of the federal government as well. Eliminating these taxes and yet paying benefits will require that other taxes (most fairly, I think, income taxes) be increased. But, for the vast, vast majority of American taxpayers this is a distinction without a difference: for most, the only difference between income, FICA and Medicare taxes is that the amounts appear in different boxes on W-2s, K-1s and/or 1040s.

I assume that this is not a new idea to anyone but me. But, just in case, but here's the basic concept.

First, get rid of the idea that some retirees/disabled are entitled to get more from the federal government than others. This belief is a consequence of the misconception that Social Security is some sort of savings plan under which those who pay more in are entitled to get more out. That is not what Social Security is or ever has been. Social Security and Medicare are both pure transfer payments from the young and able to the old and disabled. The myth that benefits are a recoupment of money previously invested is a canard complicates both public understanding and rational discussion.

Second, once we have clarified what Social Security and Medicare actually are, decide (via the political process) what level of health and retirement benefits it is appropriate for the government to pay to retirees and the disabled. Then pay that same level of benefits to everyone, regardless of earnings history, assets or anything else. For instance, maybe we decide that it is appropriate for the government to guarantee to the elderly and disabled an income equal to 125% or 150% of the poverty level plus medical insurance that will provide benefits comparable to those provided by Medicare today. We then provide that level of benefits to everyone, tax free. Too low for people with higher pre-retirement/disability incomes you say? I agree that there may be a need for some sort of a phase-in to avoid possible disruptions for people already retired or close to it. But my general feeling on this issue is that the function of government is to provide a safety net, not to maintain your pre-retirement/disability standard of living. If you want to have more than what the government will provide, think -- voila! -- "private accounts," i.e. IRAs and 401ks.

Third, eliminate the FICA and Medicare taxes for individuals, and require employers to pay their share of these taxes directly to the employee. This would result in something like a 15% increase in pre-tax income for anyone earning less than $90,000 per year and $11,000/year plus about 3% of earnings above $90,000 for people making more than that. Low income workers would pay 15% or less of this back to the government in income taxes. Higher income workers would pay up ot 40%. A start on pregressivity already.

Finally, increase income tax rates by enough to (a) pay for the benefits we have decided to provide and (b) ensure that those making less than $90,000 get a net tax reduction, with the absolute dollar amount of the reduction getting progessively larger as income declines.

There are a lot of things I like about this approach. But the four most important are its simplicity, its progressivity, its transparency, and most of all, its honesty.

Blomberg's Appeal of the NY Gay Marriage Case

Mayor Bloomberg is taking considerable heat for his decision to appeal Judge Doris Ling-Cohan's recent decision holding that a ban on same-sex marriage is unconstitutional. In one sense, I think this criticism is simply unfair. As a chief executive sworn to see that the State's laws are faithfully executed, it seems like he is duty bound to get a definitive ruling on what the law actually is, especially involving issues as controversial and far-reaching as this one does. And, in a case like this, such a ruling can only come from the State's highest court.

However, even in terms of advancing the cause of gay marriage, it is far from clear to me that the decision to appeal was a bad one.

The only people criticizing the decision to appeal, of course, are those who like the outcome of the case. If Mayor Bloomberg really does support gay marriage, as he claims, why would he seek to have the decision overturned? After all, as Alan Van Capelle reportedly observed: "The only thing stopping same sex couples from getting married legally [is] Mayor Michael Bloomberg."

It is possible, of course, that Bloomberg is simply a hypocrite as Joyce Purnick seemed to imply in Monday's NYT, or that, while personally in favor of gay marriage, he is bowing to political expediency, as Jim Rutenberger suggested in the same issue. But it is also possible that Bloomberg is sincere in his support of gay marriage and has concluded that an immediate, expedited appeal directly to New York's highest court is the best strategy for securing that right and perhaps even for advancing the cause of gay marriage nationally.

Sooner or later, the gay marriage issue going to come before the NY Court of Appeals (the state's highest court), and until it does the right to get a marriage license is more symbolic than real. Given that, it would seem that there is no real downside either for same-sex couples or for the cause of gay marriage generally in appealing now.

On the other hand, there are some very substantial upsides. By far the most important of these is that this case is probably as well positioned as any case could be if what you want is a ruling in favor of gay marriage. First, and most obviously, the lower court decision is very well written, researched and written. A good lower court decision is always the best "brief" to be filed in any appellate court.

Second, the appellant -- the City of New York -- has already expressed its support for the outcome and has made clear that it's arguments are being advanced more out of a sense of duty than a sense of conviction.

Third, perhaps as a reflection of this ambivalence, all of the important facts in the case have been stipulated. As reported in Gay City News:

The case was simplified somewhat by the city's agreement with the factual contentions that Lambda advanced in support of the plaintiffs' claims. There was no dispute that same-sex couples form families, that many of those families involve raising children and that exclusion from marriage imposes significant disadvantages on the couples and their children, because of the many rights and responsibilities associated with marriage that cannot be completely simulated through private contracting. The court devoted a section of its opinion to recounting in detail these uncontested facts.

In addition, it does not appear that the State argued that it was harmful to children to be raised by same-sex couples.

As any appellate lawyer will tell you, the state of the factual record in a case is at least as important as the legal arguments advanced in the briefs. This is particularly true in a case like this one.

As discussed in more detail in yesterday's post on this case, if the Court of appeals finds, as the lower court did, that existing state law in New York bars gay marriages, then the court will have to decide two issues. First, is the "right" at issue "fundamental?" The State argued below that the right at issue was the right to marry someone of the same sex. The lower court rejected this characterization, however, holding the right at issue is the right to decide whom you are going to marry. That latter right seems clearly to be a "fundamental" one. And, given both the lower court's phrasing of the issue, and the substantial support that phrasing has in decisions of the US Supreme Court, it seems unlikely that the NY Court of Appeals will be able to escape the conclusion (even if it wishes it could) that there is a "fundamental" right at stake.

If the right is fundamental, then the City must show that the restrictions state law imposes on that right (in this case an outright ban on choosing to marry someone of the same sex) are no broader than absolutely necessary to vindicate some "compelling" state interest. It is in this context that the stipulation of facts is so important. If one were seeking to uphold a ban on same sex marriages, one would presumably want to be able to argue, say, that the state has a compelling interest in the protection of children, that allowing gay marriage facilitates the adoption of children by same sex couples, and that children are harmed by being raised in such an environment. There are a ton of factual and legal problems with such an argument, of course. But, they have the potential to cloud the issue. In this case, though, it appears that these types of arguments are entirely foreclosed. As the case is postured, the City appears to be limited to arguing that the State's "compelling" interests lie only in preserving the "traditional" definition of marriage and in ensuring that NY law remains consistent with federal law and the law in most states. It is possible that the Court of Appeals will accept such arguments, of course. But it seems unlikely, especially given the excellent job that the trial court did in demolishing them below.

None of this is to say that winning the case in the Court of Appeals is a sure thing. Far from it. Appellate Courts judges are wily characters, and there is no way to assure, in advance, how they will decide a case. However, this case appears to be as well positioned as any case can be if you want to establish a right to same-sex marriage. As such, taking this case to the Court of Appeals makes a good deal of sense.

Moreover, one can even win by losing. Given the Republican control of Congress (for which there appears to have no near-term remedy), the dependence of the Republicans on the "moral majority," and the spate of state constitutional amendments barring gay marriage that were passed in November, the only near term hope for a nation-wide right to same-sex marriage lies in the US Supreme Court. While it is not entirely clear from the lower court decision in this case, it does appear that Lambda Legal included a claim that a ban on same-sex marriage also violated federal due process and equal protection guarantees. If so, then, even if the New York Court of Appeals decides that a bar on same-sex marriages does not violate the New York Constitution, it will also have to decide that it does not violate the federal Constitution as well. Once it gets by the State issue, of course, it will reach the same conclusion with respect to the federal Constitution for the same reasons. However, a ruling on the legitimacy of the ban under federal law will provide a basis for pursuing the federal claim in the US Supreme Court. Indeed, losing the State constitutional question is the only way to get the issue before the Supreme Court.

Admittedly, it seems like a long shot to suppose that the Supreme Court, given its current composition and already burdened by the legacy of Roe v. Wade, would hold that the federal constitution requires states to allow same-sex marriages. However, as Judge Ling-Cohan noted, the decision of the court in Lawrence v. Texas does provide some basis for hope in this regard. Moreover, whatever doubts one has about the current composition of the court, it seems unlikely that this composition will get more hospitable to gay marriage claims any time soon. And, finally, there is really no downside risk in going to the Supreme Court now, since, even if that Court holds that a ban on same sex marriage does not violate the federal Constitution, that will leave opponents of such a ban in a situation not very much different than the situation they are in today: seeking to have such bans declared unconstitutional under state constitutions.

There are, no doubt, counter-arguments to this analysis, and reasonable minds can certainly differ on what the best strategy is for advancing the ball on this issue. But the main point seems to me to be unassailable: One should not assume that Bloomberg's decision to appeal the NY gay marriage case is evidence of either hypocrisy or political cowardice. In fact, it is arguably not just consistent with his duties as a chief executive; it may also be the a very smart strategy for expediting real legal recognition of gay marriage.