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"It is better to be drunk with loss and to beat the ground, than to let the deeper things gradually escape."

- I. Compton-Burnett, letter to Francis King (1969)

"Cynical realism – it is the intelligent man’s best excuse for doing nothing in an intolerable situation."

- Aldous Huxley, "Time Must Have a Stop"

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Thursday, 29 June 2006
Legal Matters: Third Time is Charm, or Not
Topic: The Law

Legal Matters: Third Time is Charm, or Not

School's out, the Fourth of July is at hand, and the Supreme Court is ending its session and packing it in for the summer, which in their case means from now until the first Monday in October. That's a long summer, but not to worry, the week gave us their decisions on what is permissible and what is not, as it is their job to listen to the opposing views on this matter and then look closely at the constitution, and decide who is right, and who is being silly. That's been their job since 1803, since Marbury v. Madison - Chief Justice John Marshall presided over that case, and used the case to legally establish the right of the judiciary - and in particular, the Supreme Court - to determine the constitutionality of the actions of coequal branches of government, and that's the basis for the current authority of the Supreme Court. After this week's closing flurry of decisions, the legal-eagles in the current administration might now start saying that one from back in 1803 was clearly decided wrongly.

The first two of the three big decisions weren't so bad for the guys in charge, The third was a killer.

The first was Kansas v. March (PDF format), having to do with a case bumped up from the Kansas Supreme Court, where that lower court had ruled that state's capital-sentencing system was unconstitutional. They have the usual system out there - in death penalty cases, after the jurors find the defendant guilty beyond a reasonable doubt, that jury must then weigh various statutory "aggravating factors" against "mitigating factors." The former includes things like how shocking and awful the crime was and all that, and the later are pleas for mercy - the poor defendant was abused as a child or whatnot. The jury then decides whether the defendant should die, or just rot in jail. But Kansas added a twist. If there's a tie - the aggravating factors pretty much balancing the mitigating factors - then the defendant dies. That is the default - all things being equal, you die. That's how they do things in Kansas.

The Supreme Court said that's fine, don't get all excited. The vote was five to four and Justice Clarence Thomas, the fellow who likes porn tapes and said those odd things about Coke cans to Anita Hill, authored the majority opinion - this just does not violate the prohibition on "cruel and unusual punishment" in the Eighth Amendment. The jury was given the opportunity to consider all the mitigating evidence, there's no compelling reason to micromanage one state's specific sentencing scheme. Jurors had the right to look at everything, but there's no constitutional rule requiring how the state decides to break any tie. The dissents all harped on the idea that this was about death, and that made the default "cruel and unusual punishment." The reply was a resounding "not our business." Or so it seemed.

Score one for the forces of vengeance and retribution. As the president, who holds the record for governors ordering executions to proceed, likes to say, "Folks have to understand there are consequences." Even when all things are equal. And "folk" like death as a default.

The second case was the Texas thing - instead of redistricting every ten years after each census, Tom Delay, now indicted on all those felony charges, had the folks in Texas change the boundaries of all the congressional districts in the state in the middle of the ten years, and the Republicans picked up six seats in Congress in the election that followed. The Democrats called foul, and sued, and lost. The decision is here (132 pages of PDF), but you can find a summary here and a good news item here. It comes down to this - the court said a state can redistrict any time it want as there's nothing in the constitution that forbids it (the census clause of the Constitution is only a suggestion, it seems), and there no controlling specific federal law about all this, so what happened in Texas was, while plainly political, not a constitutionally impermissible gerrymander. It may be crass and unfair, but it's not illegal. But then what happened in one district (the Twenty-Third) was illegal and unconstitutional. There you can't just reduce its Hispanic percentage for political reasons - there are specific laws in that case, like the Voting Rights act.

Ah well, the Supreme Court isn't going to get into hardball politics and the law, again. Florida in 2000 was quite enough. This was narrow and precise, without consideration of larger issues, like fairness.

Walter Dellinger - professor of law at Duke University and a partner in the law firm of O'Melveny & Myers - isn't impressed -
Partisan gerrymandering is wrong, and it is a constitutional wrong, for it involves discriminating against some voters on the basis of their political beliefs and interfering with the process of self-government by the majority. But what is a court to do? An appreciation of the political effects of different districting plans cannot be eradicated from the legislative mind. How much consideration is too much? How is a court to tell? And will the body politic believe that federal judges, because they are unelected, are disinterested referees of the political process?

Until I heard the oral argument, I thought that the Texas case might be the exceptional one in which there was actually a judicially manageable standard that could be invoked to set aside what the state legislature had done. The facts suggest a perfect storm of partisanship: Texas had adopted a Democratically biased congressional redistricting plan in 1990; a split in the control of the state legislature had led to deadlock over the required decennial redistricting in 2001; a court had to act to adopt a plan. Tom DeLay, accusers said, raised illegal corporate money to gain control of both state houses, tried to get the Federal Aviation Authority to monitor Democrats fleeing to Oklahoma to defeat a quorum, and pushed through a partisan plan that made the Texas delegation to Congress heavily Republican.

Finally, it seemed, a case that could be resolved with a "judicially manageable standard." Given the almost unbroken tradition, pegged to the census clause of the Constitution, that the lines for Congressional districts are redrawn every 10 years, some explanation is required for the highly unusual act of the Texas mid-decade gambit. Of the Texas move it can truly be said, to paraphrase the late coach Vince Lombardi, "Partisanship was not the most important thing; it was the only thing."

One sentence leaps out in today's controlling opinion by Justice Kennedy in the Texas redistricting case. He is writing about the decision of the newly installed Republican majority in the Texas state legislature to take the highly unusual step of redistricting the state's U.S. congressional seats in the middle of a decade - specifically, this one. And he says: "The legislature does seem to have decided to redistrict with the sole purpose of achieving a Republican congressional majority, but partisan aims did not guide every line it drew."

I would have thought the first part of that sentence would have disposed of the case: If the legislature has decided to undertake an action "for the sole purpose of achieving a Republican congressional majority," it has right then and there failed the basic constitutional test that all legislative acts must, at the very least, serve some legitimate legislative purpose. An act with the "sole purpose" of achieving a partisan aim does not satisfy that standard.
Yeah, but it all stands as it is now. And the old "one man one vote" myth is just that - that's not how things work. That's why we have an electoral college and all that. Everyone games the systems and some votes count more than others. Suck it up and move on.

Score one for the Republicans. They know how to play hardball.

Would the third time be charm?

Those in charge of things, "half in love with death" (not quite what Shelley meant) and fully in love with power, were on a roll. But then there was this on Thursday, June 29, the Supreme Court rules 5-3 that George W. Bush overstepped his authority in ordering military trials for detainees at Guantánamo Bay - and that the procedures administration had intended to use violate both US law and the Geneva Conventions (treaties we ratified that thus have the force of law). They said that the administration can hold the detainee in question - Salim Ahmed Hamdan - "for the duration of active hostilities." That's fine. No problem, but the president really must "comply with the rule of law" if he wants to have the guy or any other detainees tried and subjected to criminal punishment.

It was Justice Anthony Kennedy joined John Paul Stevens, Ruth Bader Ginsburg, Stephen Breyer and David Souter in the majority. In his separate opinion, Kennedy said that trial by military commission "raises separation-of-powers concerns of the highest order," and that the "concentration of power (in the executive branch) puts personal liberty in peril of arbitrary action by officials, an incursion the Constitution's three-part system is designed to avoid." Antonin Scalia, Clarence Thomas and Samuel Alito dissented. Scalia said they had really did have no jurisdiction in the matter, implying it was not their job to tell the president what he could or could not do. The new Chief Justice, Roberts, sat this one out. Before he got the current job he had ruled on the matter from the bench of a lower court - no one could tell the president what he could or could not do. His new colleagues just don't seem to agree.

The ruling, Hamden v. Rumsfeld, is here (one hundred eighty pages in PDF format). That's a little daunting.

There's an interesting survey of the implications from Tim Grieve here, and there are some curious implications.

First this could impact the whole business of warrantless wiretaps. Grieve points to this, and comments -
The decision, five justices - Kennedy, Stevens, Souter, Breyer and Ginsburg - reject the Bush administration's argument that the power to try detainees by military tribunal was implied in the Authorization for Use of Military Force approved by Congress in the days after 9/11.

... the Bush administration has advanced exactly the same argument in support of its warrantless wiretapping program. That is, Attorney General Alberto Gonzales and other administration officials have argued that Congress somehow implicitly authorized the warrantless wiretapping of American citizens when it passed the Authorization for Use of Military Force, or AUMF, in 2001.

So if the AUMF didn't implicitly authorize the use of military tribunals at Guantánamo, it probably didn't authorize the warrantless wiretaps either, right? That's how it seems, but readers with a keen memory will recall that in the Hamdi v. Rumsfeld decision in 2004, five justices - O'Connor, Rehnquist, Kennedy, Breyer and, in a separate opinion, Thomas - reached the conclusion that the AUMF did authorize the detention of enemy combatants for the duration of the conflict in which they were captured. Sandra Day O'Connor wrote then that it is "of no moment" that the AUMF says nothing about detaining enemy combatants. "Because detention to prevent a combatant's return to the battlefield is a fundamental incident of waging war," O'Connor said, "in permitting the use of 'necessary and appropriate force,' Congress has clearly and unmistakably authorized detention in the narrow circumstances considered here.'"

Why is the outcome in Hamdan different?
And there it gets complicated. Go read it, if you dare, but it comes down to this -
Assuming a legal challenge ever got to the Supreme Court, the outcome could turn on two questions. First, does the Foreign Intelligence Surveillance Act leave open the possibility that another "Act of Congress" might authorize spying without the warrants FISA requires? Although FISA itself says it's the "exclusive means by which electronic surveillance ... may be conducted," the administration has argued that FISA actually contemplates the possibility that a future act of Congress could expand the president's surveillance authorities. But even assuming the court agreed with that view, it would still have to grapple with the second question: If FISA does contemplate additional, broader authorizations for electronic surveillance, did the AUMF amount to one? To answer that question, the court would have to decide whether spying on American citizens - and, arguably, doing so without a warrant - is such an inherent part of waging war that the power to do so must be read into the AUMF in the same way that the power to detain enemy combatants was.
That could be interesting. Is listening to everyone's phone calls and scanning and storing their each and every email a necessary and appropriate use of force? That may be a stretch. Common sense says no, but these guys aren't big on common sense.

On the treatment of these detainees things are clearer - the interrogation techniques the Bush administration is using in the war on terror are now in question.

Marty Lederman, a Georgetown law professor who served in the Clinton and Bush Justice Departments, explains here that this Hamdan decision essentially "resolves the debate" over what interrogation techniques the United States may use against detainees -
More importantly, the Court held that Common Article 3 of Geneva applies as a matter of treaty obligation to the conflict against Al Qaeda. That is the HUGE part of today's ruling. The commissions are the least of it. This basically resolves the debate about interrogation techniques, because Common Article 3 provides that detained persons "shall in all circumstances be treated humanely," and that "[t]o this end," certain specified acts "are and shall remain prohibited at any time and in any place whatsoever" - including "cruel treatment and torture," and "outrages upon personal dignity, in particular humiliating and degrading treatment." This standard, not limited to the restrictions of the due process clause, is much more restrictive than even the McCain Amendment.

... This almost certainly means that the CIA's interrogation regime is unlawful, and indeed, that many techniques the administration has been using, such as waterboarding and hypothermia (and others) violate the War Crimes Act (because violations of Common Article 3 are deemed war crimes).
Oops. There's a problem if there ever was one.

But you remember this, the Attorney General himself arguing that the war on terror "renders obsolete" the Geneva Conventions' "strict limitations on questioning of enemy prisoners and renders quaint some of its provisions." The court says he's just wrong, as a matter of law. Grieve notes that in a section of his opinion in which four other justices joined, John Paul Stevens says that the Geneva Conventions' Common Article 3 applies to the U.S. conflict with al-Qaida. And Lederman argues that these prohibitions are stronger than those contained in the McCain torture ban the president signed last year. Grieve says he "might also note that the administration has argued that the McCain ban can't be invoked in court with respect to detainees at Guantánamo - an argument that may be moot if the Geneva Contentions' protections apply anyway."

This third decision seems to be a big deal.

See Walter Shapiro here -
It remains one of the most chilling public statements by a senior Bush administration official. Testifying before the Senate Judiciary Committee in December 2001, Attorney General John Ashcroft blustered, "To those who scare peace-loving people with phantoms of lost liberty, my message is this: Your tactics only aid terrorists - for they erode our national unity and diminish our resolve. They give ammunition to America's enemies and pause to America's friends."

Ashcroft's inflammatory claim that civil libertarians were arming al-Qaida came on a day when the attorney general had the unsavory duty of defending the administration's initial rules covering military tribunals. Now four and a half years later, the Supreme Court's end-of-the-session decision in Hamdan v. Rumsfeld both rejected these military tribunals and quickened the hearts of civil libertarians.

Read narrowly, the court's ruling applies only to the roughly 450 prisoners held at Guant?namo. In fact, Thursday's decision does not even guarantee any kind of trial for these detainees. As Justice Paul Stevens noted in his majority opinion, "Hamdan does not challenge, and we do not today address, the Government's power to detain him for the duration of active hostilities." Yet such a gimlet-eyed interpretation may be the equivalent of believing that Brown v. Board of Education applies only to schools in the greater metroplex of Topeka, Kan.

It is possible that Hamdan may someday be seen as the turning point in repudiating the Bush-Cheney view that all branches of government are equal but some are more equal than others. An optimist could find persuasive evidence in the decision that the Supreme Court was, in effect, saying to the White House: "Enough of your cockamamie theories about the all-powerful president in wartime. Enough of your cloud-cuckoo readings of the resolution that Congress passed after Sept. 11. And enough of your cataclysmic claims that the war against al-Qaida requires a wanton disrespect for international law and the norms of civilized behavior."

... the most compelling passage in Stevens' opinion is this four-word sentence: "That reasoning is erroneous." The octogenarian justice was rejecting the government's cherished argument that not one syllable of the Geneva Conventions applies to alleged al-Qaida captives at Guant?namo. Stevens held that, at minimum, Hamdan and his companions on the American-held tip of Cuba are covered by the portions of the Geneva Conventions that regulate the treatment of prisoners in civil wars and similar conflicts.
Or not. The White House could say that while what the Supreme Court rules is interesting, but they don't that they have to follow anything they say. The three branches of government are coequal, after all. And Marbury v. Madison was wrongly decided. Who is John Marshall after all? And that was back in 1803 - and 9/11 changed everything. And so on and so forth.

Lederman - "After today, any waterboarding will open you up to a possible war-crimes prosecution." But he suggested that Thursday's decision probably could not be used retroactively to punish anyone for employing "extralegal interrogation techniques." On the other hand he said - "I wish I could see the memos that are going out today from the CIA to the field."

That would be cool.

As for other view, see Walter Dellinger (cited above) and Dahlia Lithwick in dialog here.

Lithwick -
I am struggling to feel the same euphoria about the court's repudiation of President Bush's military tribunals in today's rather stunning Hamdan decision.

... If Lederman is right on this, I can take some comfort in an opinion that's about more than just a handful of guys at Guantanamo whose trials are on hold. But for the moment, I am trying to imagine explaining to Mr. Hamdan that the good news today is that he doesn't get a trial at all. The court finds that Hamdan can be detained "for the duration of active hostilities." It's not like the base at Guantanamo has to be closed. This case may not have that much immediate impact, outside of Guantanamo, but as a judicial smoke signal to the president, it's a whopper.

... Today's rebuke to the president still feels hollow to me because I just don't believe the Bush administration cares what the Supreme Court thinks about the constraints on executive war powers. As a legal matter, Bush lawyers always claimed they'd won the last round of enemy combatant cases, even when the rest of us heard O'Connor's admonition, in Hamdi v. Rumsfeld, about a state of war not being a "blank check" for the president. As a practical matter, even if it's true that U.S. forces and interrogators must now abide by the Geneva definition of torture, when is the petition for relief of a tortured detainee going to present itself before this court? And even if Guantanamo is closed, which I gather may soon happen, what is to stop Bush from falling back on secret prisons and extraordinary renditions - which we will never know about?

When I covered oral argument in Hamdan, I marveled at how Solicitor General Paul Clement unfailingly staked out the most extreme legal positions - positions that seemed utterly contemptuous of the court - and then refused to budge from them. He told an astonished Justice David Souter that it was possible for Congress to suspend the writ of habeas corpus accidentally. He told Justice Ruth Bader Ginsburg that enemy combatants simply have no rights under the Constitution and laws of the United States. He just kept repeating the Bush administration mantra: This is war and President Bush is king of the war.

At the time, I wondered how such an unbending, unyielding view of the law, and the world, made any sense. It didn't seem to me a particularly helpful tactic in dealing with a Supreme Court that thrives on nuance. When you're talking to nine people who can churn out 132 pages of painstakingly detailed nuance on a regular basis, does the argument that the president thinks courts are soft, sloppy, and slow really seem like a winner?

... Do the Bush folks take this simplistic view of their own power - throwing around ideas like "unitary executive" and FISA-as-optional - because in the end, they just don't care what the courts think?

The administration isn't really asking for constitutional blank checks. Why should it, when the president thinks he has his own constitutional Swiss bank account?

... Does the president believe he is bound by this decision? Does he refuse to send a really senior representative to a Senate Committee hearing on signing statements; or offer substantive responses to congressional questions about warrantless wiretapping; or offer a nuanced argument to the high court to make clear that he's not accountable to any of those entities? And if the administration refuses to be accountable, then what will today's decision actually achieve? It's all very good for Mr. Hamdan and his nine friends at Guantanamo. But won't it encourage Bush to detain/render/wiretap/torture in even greater secrecy?

Cheer me up, Obi-Wan, you're my only hope.
Dellinger -
Because in order to understand the larger significance of today's decision, it is important to be clear about exactly how this presidency departed from fundamental legal principles. The problem is not the president's assertion that he can ignore laws he believes to be unconstitutional. The problem is what laws he believes to be unconstitutional.

For the proposition that the president has the authority to decline to abide by statutes he views as unconstitutional, the administration has relied principally on an opinion I authored as head of the Office of Legal Counsel in 1994. And rightly so. That opinion is based upon long-standing and consistent executive practice. Moreover, the most relevant U.S. Supreme Court decision, Myers v. United States, 272 US 52 (1926), by clear implication considers it appropriate for a president to decline to execute unconstitutional statutes. And as President Carter's Attorney General Ben Civiletti wrote in an 1980 opinion, the president's constitutional duty to execute the laws "does not require him to execute unconstitutional statutes; nor does it require him to execute them provisionally, against the day that they are declared unconstitutional by the courts."

This view is based upon the principle that the president's ultimate obligation is to the Constitution, and if a statute contravenes the Constitution, the president has the authority to decline to enforce it. This applies to laws that unconstitutionally impinge upon the president's own power. It is also unremarkable for a president to announce his view that a provision is unconstitutional in a statement issued when he signs the law.

The problem has been what those presidential signing statements say - even worse, what the legal opinions intended to be secret assert. They claim that laws whose validity has never been seriously questioned are unconstitutional based on extravagant and untenable theories of presidential power.

The fundamental, profound category error made by the administration has been to confuse two utterly different meanings of the term "inherent presidential power." One meaning would refer to what the president has authority to do on his own in the fields of national security and armed conflict when Congress has not acted. That should be a very broad area. The term "inherent presidential power" could also be taken, however, to refer to matters so deeply at the core of presidential authority that that any act of Congress that regulated or limited the exercise of that power would be unconstitutional - even if Congress was acting under legislative powers clearly conferred by the Constitution. That should be an exceedingly small set of matters.

This administration has taken the astounding position that if the president has 'inherent authority' to do an act whenever Congress is silent, then it follows that any act of Congress that regulates such an authority is an invalid impingement on his "inherent power." This conflation of what a president can do if no law prohibits his action and what he can when the law forbids it is a truly insidious legal doctrine.

The court made short work of it today. RIP "inherent presidential authority" to violate valid laws.

This seemingly simply proposition has huge consequences.

... Today's decision has been criticized by conservatives on the court and by some off the court. But just as this is not a victory for terrorists, neither is it a defeat for conservatives, as many will come to realize. Placing the presidency back under the law will look quite different to critics when there is a president less to their liking in the White House.
Yeah. That makes sense, but what if the Supreme Court places the presidency back under the law and the president shrugs and ignores the whole business? Who's going to do anything about that? Both houses of congress are firmly Republican - the Texas redistricting took care of that - and angry now.

So the summer beings. No more court decisions until late fall, and all this plays out now in whatever way it will.

As in this -
The Bush administration likely will have to extend rights to terrorism suspects at the U.S. military prison at Guantanamo Bay, Cuba, that it has denied for years, after the Supreme Court invalidated the government's system of military trials and ruled that the detainees must be treated according to international standards, officials and experts said yesterday.

Senior administration officials acknowledged that the ruling scuttles their plans to put as many as 80 detainees through administration-created "military commissions" - with extremely limited rights - and said it is unclear how they will respond. The 5 to 3 ruling in Hamdan v. Rumsfeld sent officials scrambling to evaluate options for the 450 detainees at Guantanamo Bay, some of whom have been held for more than four years without trial.

The choices, experts and government officials said yesterday, largely include putting suspects through time-tested military courts-martial, charging them in U.S. criminal courts or working with Congress to develop new rules to comply with the court's decision.

The administration could also ask foreign governments to try the more than 150 prisoners it considers hard-core terrorism suspects. The rest are likely to be returned to their home countries for further detention or release.

But if the United States decides it wants to hold the trials, detainees probably would gain more access to the evidence against them and the right to be present for much or all of the proceedings - both of which were denied in some circumstances under the military commission rules, the experts and officials said.

The court did not rule on whether Guantanamo Bay should be closed, and its action does not affect operations at the facility. Military officials said yesterday that scheduled military commission hearings for 10 suspects have been suspended.

Retired Army Gen. Barry R. McCaffrey, a professor of international affairs at the U.S. Military Academy who visited Guantanamo Bay last week, said the military commissions were destined to fail. He said the government should have used courts-martial and the Uniform Code of Military Justice (UCMJ), which grants defendants more rights.

"We put ourselves in an unnecessary legal mess from the beginning, and now we've gotten ourselves in such a mess legally and politically, there's no easy solution," McCaffrey said yesterday.
No kidding.

Posted by Alan at 22:59 PDT | Post Comment | Permalink
Updated: Friday, 30 June 2006 09:12 PDT home

Wednesday, 28 June 2006
Comfort Food and the Absence of Place
Topic: The Culture

Comfort Food and the Absence of Place

When the political becomes overwhelming - things really are a mess here and around the world - you can always turn the television to the Food Channel, where no one talks about the war or George Bush or the latest madness in congress. There's no talk of whether, in an open democracy like ours, the government should tell that newspaper up in Manhattan that there are certain things they just shouldn't print, because a free press is responsible and doesn't print what the government says it shouldn't, or like the White House press secretary at the time of the 2001 attacks famously said, people should watch what they say these days, and not express the wrong opinions. Whatever. On television someone is explaining crab cakes. That'll do. Did the Israeli army just arrest the entire government of Palestine as part of the new massive invasion into Gaza to get back that one soldier who had been captured? Seems so, but then there are these things you can do with both basil and rosemary when preparing a chopped garlic crust for those lamb chops.

That doesn't interest you? Scoot over to the Travel Channel and there's Samantha Brown providing one more tour of a fancy hotel you could never afford in a place you'd never go, or there will be one of those insider guides to Las Vegas - the real scoop on where the Rat Pack hung out in the early sixties or some such thing. But Frank and Sammy and the rest are all dead, and that town has changed. It's rather awful now, and the fake Paris in the desert is more than disorienting - it's existentially depressing, and deeply so. It's hard to explain, but imagine walking in off the street, where it's a hundred ten sun-blasted degrees, into a massively chilled casino, dark but with rank after rank of jangling slot machines being massaged by hopeful Asian grandmothers in their seventies, with fake Paris streets leading off from the edges, each with oddly exaggerated forced perspective, and a stylized painted blue sunshine sky twelve feet over your head. It's very odd - no Paris rain, no cigarette smoke anywhere (nor the diesel fumes you remember), and no one speaking French of course. Ah well, people love it.

Everyone, now and then, needs to escape. You have to take a break from the heavy stuff. Some like the fake Paris.

You could just go to McDonalds, of course, anywhere in the world - really. Well, you could, as Rolf Potts explains in Slumming the Golden Arches. That's where he suggests you'll find a completely culturally neutral place - a refuge. Although he doesn't mention it, what we have here is the contemporary equivalent of Hemingway's "clean, well-lighted place" - an odd safe harbor of sorts, a place that for a moment neutralizes the world and its woes. That's deep.

But the place is so American. Or is it?

This is the month for student travel in Europe and, as he points out, at any given moment, continental McDonalds will be filled with all those of American undergraduates, a little embarrassed but claiming they're there for "the clean restrooms, the air conditioning, the fact that it's the only place open during festivals or siesta." Maybe so, but in 1997 on a rainy night in Clichy, not far from the Moulin Rouge, it was just curiosity - was it really there? (It was.)

So why are all those people there now? Try this -
European onlookers will tell you (with a slight sneer) that these peripatetic Yanks are simply seeking the dull, familiar comforts American culture. And this explanation might be devastatingly conclusive were it not for the fact that European McDonald's also happen to be crammed this time of year with travelers from Japan, Brazil, Israel, New Zealand, Argentina, Korea, Canada, India, Taiwan, Australia, Mexico, South Africa, and - yes - neighboring European countries.
So what's up with that? They can't all be homesick for the McDonalds on McKnight Road in Pittsburgh or the one here in Hollywood at the base of Laurel Canyon on the Sunset Strip. That makes no sense.

No, something else is going on, and here's his odd thesis -
McDonald's has come to function as an ecumenical refuge for travelers of all stripes. This is not because McDonald's creates an American sense of place and culture, but because it creates a smoothly standardized absence of place and culture - a neutral environment that allows travelers to take a psychic time-out from the din of their real surroundings. This phenomenon is roundly international: I've witnessed Japanese taking this psychic breather in the McDonald's of Santiago de Chile; Chileans seeking refuge in the McDonald's of Venice; and Italians lolling blissfully in the McDonald's of Tokyo.
So it's that Hemingway thing - life itself will drain you, and flatten you so you just cannot feel anymore. He finds his "clean, well-lighted place" in Paris or wherever, but now McDonalds have made such places available to everyone.

You don't think so? Rolf Potts offers his evidence -
Before I traveled overseas, I never knew McDonald's could serve as a postmodern sanctum, and - save for the occasional Taco Bell burrito - I rarely ate fast food. This all changed when I moved to Pusan, South Korea, ten years ago to teach English. Overwhelmed by the onslaught of new sights, sounds and smells my first week in-country, I retreated to a McDonald's near my school, where I was able to stretch a Big Mac Meal into three hours of Zen-like oblivion. The appeal of this environment came not from the telltale icons of franchise culture (which I'd always found annoying), but in the simple opportunity to put the over-stimulation of urban Korea on pause. Once I ended my Pusan stint and started traveling across Asia, I retained this habit of occasionally seeking out McDonald's in times of mental exhaustion.
McDonalds "as a postmodern sanctum" for a Zen-like step outside the karma is a new one, but it does make some sense. When you're there you truly are nowhere, in so many ways.

And he says he'd "wager that the contempt sophisticated travelers hold for McDonald's has less to do with ethical principle than the fact that fast-food franchises ruin the fantasies of otherness that are an inherent part of travel. The aesthetic enjoyment of the Taj Mahal or the Jardin des Tuileries can feel compromised when the Golden Arches are just a few blocks away."

Yes, in the midst of the culturally specific, and intimidating and hyper-famous (you read all about these places in school, and were told they were significant in ways you, being a provincial hick, probably never fully understand), the meaninglessly general just down the street is unsettling. It's not exactly the jolt of carefully reading "Being and Nothingness" - but it will do. It's the real life Cliff Notes version.

But then Potts notes McDonalds really are specific, or quasi-specific -
In India, for example, a McDonald's serves chicken "Maharaja Macs" instead of Big Macs (due to Hindu and Muslim taboos against beef and pork), and a door-greeter is often available to assist the middle-class clientele. Moreover, as any Pulp Fiction fan will note, Paris McDonald's offer the option of ordering a frothy beer with le Big Mac.

At times, an international McDonald's franchise can serve as a kind of measuring stick for cultural nuance. In China, where familial identity is a core virtue (and where a sexually ambiguous bachelor-clown mascot might seem a little weird), Ronald McDonald is known as Uncle McDonald, and he has a wife, Aunt McDonald. In parts of Bangkok, where the laid-back Thai concept of sanuk (lightheartedness) threatens fast-food efficiency, McDonald's staff members use James Bond-style digital countdown clocks to ensure the food arrives in a timely manner. In Cairo, I witnessed young, middle-class Muslim couples going on chaperoned first-dates in a McDonald's; in Tel Aviv, the teenage staff got so flustered when I ordered non-kosher cheese on my Big Mac that they forgot to add the beef patties.
But these are minor frills and flourishes, as the core of the experience is that when you're at McDonald you're really nowhere, or everywhere. It's very Zen.

And Potts proves with his final remarks -
... it can be interesting to learn how the simplest experiences overseas can affect the way you see things when you come home. I recall how, after returning from my first year in Korea, the understated calm of a Great Plains Christmas left me with a severe case of reverse culture shock.

My solution? I headed over to the west 13th Street McDonald's in Wichita, where my sense of place melted away the moment I walked through the front door. Indeed, as I ate that Kansas Big Mac Meal, I may have as well have been back in Asia.
Ah yes, nowhere and everywhere. Bliss. Satori, and all that.

But if you think this sort of discussion of the philosophical and cultural implications of what McDonalds has created in this word - "a postmodern sanctum" for a Zen-like step outside the karma of the everydayness of this life and its world of illusions - is reading a bit too much into grabbing a Big Mac with cheese and a side of fries, then you will be flummoxed by Thus Ate Zarathustra, Woody Allen's new piece in the latest New Yorker. Who would have thought that "Friedrich Nietzsche's Diet Book" existed?

Well, it doesn't. But he pretends he found a copy, and he puts it in context -
Fat itself is a substance or essence of a substance or mode of that essence. The big problem sets in when it accumulates on your hips. Among the pre-Socratics, it was Zeno who held that weight was an illusion and that no matter how much a man ate he would always be only half as fat as the man who never does push-ups. The quest for an ideal body obsessed the Athenians, and in a lost play by Aeschylus Clytemnestra breaks her vow never to snack between meals and tears out her eyes when she realizes she no longer fits into her bathing suit.

It took the mind of Aristotle to put the weight problem in scientific terms, and in an early fragment of the Ethics he states that the circumference of any man is equal to his girth multiplied by pi. This sufficed until the Middle Ages, when Aquinas translated a number of menus into Latin and the first really good oyster bars opened. Dining out was still frowned upon by the Church, and valet parking was a venal sin.

As we know, for centuries Rome regarded the Open Hot Turkey Sandwich as the height of licentiousness; many sandwiches were forced to stay closed and only reopened after the Reformation. Fourteenth-century religious paintings first depicted scenes of damnation in which the overweight wandered Hell, condemned to salads and yogurt. The Spaniards were particularly cruel, and during the Inquisition a man could be put to death for stuffing an avocado with crabmeat.

No philosopher came close to solving the problem of guilt and weight until Descartes divided mind and body in two, so that the body could gorge itself while the mind thought, Who cares, it's not me. The great question of philosophy remains: If life is meaningless, what can be done about alphabet soup? It was Leibniz who first said that fat consisted of monads. Leibniz dieted and exercised but never did get rid of his monads - at least, not the ones that adhered to his thighs. Spinoza, on the other hand, dined sparingly because he believed that God existed in everything and it's intimidating to wolf down a knish if you think you're ladling mustard onto the First Cause of All Things.
And on it goes.

Allan says the diet book contains things like this -

Steak or sausages
Hash-brown potatoes
Lobster thermidor
Ice cream with whipped cream or layer cake

This is a meal for the Superman. Let those who are riddled with angst over high triglycerides and trans fats eat to please their pastor or nutritionist, but the Superman knows that marbleized meat and creamy cheeses with rich desserts and, oh, yes, lots of fried stuff is what Dionysus would eat - if it weren't for his reflux problem.
Yeah, whatever. Allen can be tiresome. But he does offer this "found" aphorism - "Epistemology renders dieting moot. If nothing exists except in my mind, not only can I order anything; the service will be impeccable."

So it's off to McDonalds now. It's nowhere, and everywhere, and down on the corner - Sunset and Laurel Canyon.

Perhaps satori awaits, but then there's this -
The Zen Buddhist experience commonly recognizes enlightenment as a transitory thing in life, almost synonymous with the English term epiphany, and satori is the realization of a state of epiphanic enlightenment. Because all things are transitory according to Zen philosophy, however, the transitory nature of satori is not regarded as limiting in the way that a transitory epiphany would be in Western understandings of enlightenment.

The transitory nature of satori, as opposed to the more enduring Nirvana that is sought in the Buddhist traditions of India, owes much to Taoist influences on Chén Buddhism in China, from which Zen Buddhism of Japan evolved. Taoism is a mystical philosophy that emphasizes the purity of the moment, whereas the Hindu roots of Indian Buddhism lend a longer view toward escaping the Karmic prison of perpetual reincarnation in the material world.
Oh. You want fries with that?

Posted by Alan at 21:30 PDT | Post Comment | Permalink
Updated: Thursday, 29 June 2006 06:06 PDT home

Tuesday, 27 June 2006
The Irony of Power: Losing it all by being strong...
Topic: Couldn't be so...

The Irony of Power: Losing it all by being strong...

Of course the big event of Tuesday, June 27, was the new war in the Middle East, as Israeli tanks rolled into Gaza and the Egyptian army was massing off to the south. This should be interesting, as the Associated Press notes here -
Israeli tanks and troops entered southern Gaza and planes attacked three bridges and knocked out electricity to the coastal strip early Wednesday, stepping up the pressure on Palestinian militants holding captive a 19-year-old Israeli soldier.

The soldiers and tanks began taking up positions in two locations about a mile east of the Gaza town of Rafah under the cover of tank shells, according to witnesses and Palestinian security officials. Palestinians dug in behind walls and sand embankments, bracing for a major Israeli offensive.
Oh great. Our Secretary of State, Condoleezza Rice, was trying urging Israel to "give diplomacy a chance." And that wasn't working. We taught them too well - somebody does something outrageous, and it will be war, and that's that. We lead by example, not by what we say. The Israelis say it's just a "limited operation" - and we said we'd bop into Iraq, get rid of Saddam Hussein and his government, hand the place over to Ahmed Chalabi, and be home by Christmas. We'll see.

There was some movement, or not -
Trying to defuse building tensions, negotiators from the ruling Hamas movement said Tuesday they had accepted a document implicitly recognizing Israel. But two Syrian-based Hamas leaders denied a final deal had been reached.

Israel said only freedom for the captive soldier, Cpl. Gilad Shalit, could defuse the crisis, not a political agreement.
We did teach them well. There's just nothing that can do. There are "consequences" - and that's that.

So we've become the model. As Fareed Zakaria points out in the latest Newsweek here, war had been our default approach to foreign affairs, and our diplomatic efforts, such as they are, whne we are forced to use such things, have been a bit limited and ineffective - "The entire approach of isolating, shunning and sanctioning regimes as a way of changing them or their behavior has been an unmitigated failure from Cuba (boycotted since 1960) to Iran (since 1979). Meanwhile, the regimes we have talked to and thus had influence with - in China, Vietnam, Libya - are evolving. In Washington, it's still more important to look tough than be effective."

And so it is in Israel, with the same bad PR - the minor side issues everyone picks on, as the locals just don't seem to appreciate that our looking tough, and doing the strong thing because it's noble and just "right," means they may be somewhere between inconvenienced and dead - "The attack raised the specter of a humanitarian crisis in Gaza, as water pumps in the strip are powered by electricity. Some power in Gaza City was restored by tapping into electricity supplied by Israel in northern Gaza."

But Israel wants that one soldier back - and no talking will do. No water? What's the problem? We taught them well.

On other hand, the other big story of the day was also awful, or cheering, depending on your point of view - the Senate, by one vote, rejected joining the house and moving forward with a new constitutional amendment to add the very first exception to that free speech stuff in the first amendment. There will be no change to the constitution to create a special case where one form of free speech, burning the flag in protest, is forbidden. The details are here, and the vote tally, of just who voted for and against, is here.

The ACLU had this to say -
"The Senate came close to torching our constitution, but luckily it came through unscathed," said Caroline Fredrickson, Director of the ACLU Washington Legislative Office. "We applaud those brave Senators who stood up for the First Amendment and rejected this damaging and needless amendment.

"America prides itself on tolerance and acceptance; it is essential that we not amend our founding document to allow censorship, even when the speech in question is reprehensible," Fredrickson added. "Today the First Amendment and, indeed, the entire Bill of Rights remain untarnished and more meaningful than ever. It is our hope that the Senate will now move on to the real problems this country faces."
Good luck with that. But then, the whole range of carve-outs the first amendment, creating specific but patriotic exemptions to the principles of free speech - first the flag burning exclusion, then anything said by the Dixie Chicks or whatever, then the exclusion that allows the government to tell the press what news can and cannot be printed or broadcast - were derailed at the first try. By one vote. They'll try again.

This "don't burn the flag" effort was discussed elsewhere in the pages in Shutting Things Down, along with the parallel effort to charge the New York Times with treason, formally or informally, for revealing all the secret spying done on us all - from the warrantless phone taps and data-mining of everyone's phone records, to sweeping up all financial records available. The former is clearly illegal on the face of it, and that may be news, while the later is, while amazingly broad, more defensible, if disturbing.

The Times thought people ought to know about both - so did the Wall Street Journal and the Los Angeles Times - but the administration thought not. Sure people might like to know that their privacy is pretty much gone, but if the bad guys got wind of the programs they'd stop using phones and banks. No, that can't be right, because that would be a good thing, crippling their communications and screwing up their funding. The basic idea must be then that they don't know we're looking for them, and now they do. No, that can't be right either - we said we're looking for them, so they know that. But the programs were secret, and now they're not. One must assume we're to imagine these programs are like the Enigma business in WWII - we'd captured the encryption device and finally figured out how it worked, and the Germans had no idea we could read their message traffic and were three steps ahead of all their moves. It must be like that. They simply had no idea we'd actually be tapping their phones and following the money. No, that can't be right either. Are they diabolically clever, as we're told they are, or dumb as a post? Which is it? They'd assume we were watching and listening and reading those bank records. And the American public wants that done. That's what the administration should be doing.

What the newspapers, particularly the Times, were reporting, was that this was being done in an odd way, outside the explicit law to protect us all from the spying being abused - used for political or financial purposes or whatever - and basically looking at anything and everything without much discrimination and certainly no oversight, and little focus, making us all "the enemy." That's news.

It's all very odd, but may come down to a matter of principle. The government said this stuff was classified, and when they say something is classified - even if illegal and ineffective and unconstitutional six ways from Sunday - you have to give them the benefit of the doubt and trust them that's it's for the best, really. What was revealed was offensive because it implied maybe you cannot trust this crowd, and after the war business - the WMD that we're there and the al Qaeda connection that wasn't, and the mobile chemical weapons labs that weren't there either, and the aluminum tubes they were told had nothing to do with any nuclear weapons program - anyone who implies that, that trusting these guys has been a problem and still may be, needs to be shut down fast.

So the National Review, faithful surrogate for the administration, demands that the New York Times has its press credential taken away - no more access to anything. (Read that here.) But then the new White House press secretary, Tony Snow of Fox News, tells Editor and Publisher that the Times won't lose its press credentials, really, and the attorney general, Alberto Gonzalez, isn't likely to "prosecute" the Times for treason or sedition or even littering - it would just be a political circus. Who needs that? (That item is here.)

So now what? Greg Sargent tries to untangle it here -
This is kind of strange. Both Snow and Dick Cheney have explicitly said that the Times is putting the nation's security at risk. Yet by all indications the administration is unlikely to take any real action against the paper, mainly because it would be politically disastrous for Bush.

That leaves only two possibilities. Either:

1) Officials won't act aggressively against an institution they're claiming puts American lives at risk, because it's politically untenable. That would mean the administration is putting politics ahead of aggressively prosecuting behavior it says endangers American lives.


2) The administration doesn't genuinely believe the Times has put our national security at risk at all, and hence won't act. If this is the case, both Snow and Cheney blatantly and repeatedly lied.

So there you have it. Either the administration is putting politics ahead of national security and won't act aggressively against an institution it says is endangering American lives - because it would be bad for Bush. Or the administration's claim that the Times endangered national security is just the latest in a long string of lies it has told to the American people. Which is it?

The answer, of course, is number two. This isn't about protecting American lives at all. It's about scapegoating, pure and simple. Desperate to deflect attention from its disastrous international performance, unable to persuade Americans that things are improving in Iraq, the administration now is embarrassingly trying to shift the blame to an institution that GOP base regards as the most prominent symbol of liberal elitism in the land. This is a cheap stunt. The administration doesn't think the paper's endangering national security, and it's not going to genuinely go after the paper, either. This is just bluster for the boneheads, pure and simple.

Incidentally, the fact that the White House is engaging in such rank scapegoating is the real reason the administration has narrowed its previously broader attack on the media into one focused on the Times. Scapegoating requires the selection of a single target, the singling out of one from the herd so the rest of the herd doesn't feel it has a stake in the battle's outcome. And it appears to be working.

... now that the Times has basically been isolated in the White House's sights the rest of the media has unwittingly legitimized this assault on one of their own by cheerfully letting such ridiculous rhetoric find a comfortable place in the mainstream conversation.

Luckily this attack is pure bunkum and will end with a fizzle in a few days. But with this kind of official behavior slowly gaining legitimacy, doesn't the possibility grow that the next one might be for real?
That is a possibility, but how remote a possibility is the question.

Note Matthew Yglesias the day before with this -
Tragically, I walked through the door yesterday and my roommate already had Hardball on. There were two people debating the issue ... whether or not the New York Times should be brought up on charges of treason. Seriously. Treason. For publishing an article in a newspaper. Treason. And there was Chris Matthews happily presiding over the whole thing as if this was a serious conversation that people should be having. This all taking place on a network that, allegedly, does journalism.
Well, some wonder about journalism on MSNBC - think Rita Crosby. You can watch the debate on MSNBC Hardball here.

Duncan Black says this -
Torturing people, jailing journalists for treason, the president being allowed to disobey the law at whim... The mainstream media has made all of these things a part of the normal conversation. They've allowed "two sides" to all of these things to be debated on equal footing. ... Conservatives call for the New York Times to be blown up and their reporters and editors jailed and they get treated seriously on MSNBC's flagship political talk show.

There's a problem here. You've been playing this game for years, letting these people control the terms of the debate. This is where it has brought you. Congratulations.
On the other hand, James Wolcott is just nasty -
... Consider what's happened in the last 24 hours. Bush has called the disclosure "disgraceful," looking far angrier (or fake-angrier) than he ever did about the Katrina fuckup. Cheney, of course, released some deep-stomach rumbles. Tony Snow made his displeasure known. And in a cloud of dust rode the Ox-Bow posse, fashioning a necktie for Bill Keller and company. Congressman Peter King, the sort of bullyboy who would have been right at home planted next to Joe McCarthy during the Red Scare, urged criminal prosecution. Today alone I've seen Newt Gingrich employing his full-press sneer to decry the "pathology" of the Times is revealing security secrets, Hugh "The Iceman Cometh" Hewitt demagoguing the issue on CNN, the blue glint in his eyes demanding retribution. The Fox News All Stars haven't yet convened, but I'm certain they're return with a guilty verdict.* The right blogosphere is similarly inflamed. ... The National Review, stepping forward into the chamber with a heavy heart, grumbles, "The administration should withdraw the newspaper's White House press credentials because this privilege has been so egregiously abused, and an aggressive investigation should be undertaken to identify and prosecute, at a minimum, the government officials who have leaked national-defense information." I didn't bother listening to talk radio, but I'm sure they're baying for blood between commercials for bladder control.

What a gummy uproar. One so loud and ferocious that there almost has to be some follow-through, otherwise you are going to have one frustrated batch of highly indignants. They want the administration to show the Times and the rest of the press who's boss. The neocon contingent is already dismayed with the tiptoeing around Iran's nuclear program, with Ledeen and Perle lodging protests. If the pushback against the Times peters out, if the posse disbands shortly after mounting up, the White House is going to look weak in the bugged-out eyes of its mutant defenders. It'll be interesting to see if the controversy builds or fades over the next few days, and whether or not the Times-bashers will be compelled to call their own bluff. In the meantime, whatever one thinks of the Times's performance leading up to Iraq and the Judith Miller debacle, the ugly threatmongering and barking ("For the Times to release information about secret operations and methods is treasonous") of Peter King shouldn't go unchallenged. Let him climb the Empire State Building if he wants to work off steam.

*They sure enough did. Fox News All Star and full-time schmendrick Mort Kondracke said, more in anger than sorrow, "I think they [The New York Times] has forgotten that New York is the place 9/11 happened." Only a Beltway coward could be that obtuse.
Ah well, the talk is of shutting down the press. Make of it what you will.

But we are exporting democracy. To Iraq and wherever. See Josh Marshall here -
1. President encourages supporters to accuse newspaper reporters of treason: check.

2. President mandates systematic use of torture: check.

3. President routinely asserts right to ignores laws passed by Congress: check.

What am I missing?

Actually, I think it's more one of those trick questions. Like, we're not exporting "democracy" but our democracy. So, as we send it to them, we lose ours.
So it would seem.

And even that's not working, as Philip Gordon explains in the current issue of Foreign Affairs - "The rhetoric of the Bush revolution may live on, but the revolution itself is over." Why's that? We've overstretched ourselves in Iraq, alienated just ably every key ally, worn away almost all domestic support for spreading democracy abroad - only 20 percent of Americans today say that should be "a very important goal" - and Bush's post-9/11 revolution in foreign policy was enabled by "a feeling of tremendous power" that seems false now. There's more detail and other links here from Paige Austin, but you get the idea.

There may be a third war brewing in the Middle East, but since the flag thing failed, shutting down the Times may just what the doctor ordered. That'll fix everything.

Posted by Alan at 23:31 PDT | Post Comment | Permalink
Updated: Tuesday, 27 June 2006 23:47 PDT home

Our Man in Paris: Zizou Scores
Topic: Breaking News

Our Man in Paris: Zizou Scores
What's up in Paris? For those you following the World Cup games now in progress, Our Man in Paris (Ric Erickson, editor of MetropoleParis) covers the joy in the streets. Things are going well.

PARIS - Tuesday, June 27 - There's a mess of unhappy Spaniards in Hanover tonight. They sent out a dancing team of scrappy kids to take on the phlegmatic French, a gang of antique joggers and bicyclists, and oh woe, their bald team captain Zizou, the much beloved top-shooter for Real Madrid, whacked in an authentic 'Zizou' goal for France in the game's closing minutes.

The French were leading two to one, having just dropped in a dubious goal as a result of a fake penalty against a Spanish player, and if that had been the winning goal relations between to two countries would have become as sour as they were during the Peninsular War.

Sometimes one wishes there could be more than one World Cup winner. When the games get good, when the teams sparkle, when the weather presents itself as atmospheric as wine and the world turns without wobbling, football's folks put all their imagination into being fans, and they are all born winners.

The French have been glum about the series until now. So much so that they staged a minor victory celebration on the Champs-Elysées after scoring higher than Togo last week. It might have been the one and only French victory, the papers said.

Right now car horns are tooting and emergency sirens are racing to scenes of overjoy, while the police in the 8th arrondissement call for reinforcements to handle the impending delirious impromptu whoop-up on the Champs-Elysées.

In Hannover old guy 'Zizou' is probably drinking Champagne while the astonished French fans put away kegs of cool beer. Le Parisien on Monday questioned the possibility of Zinedine Zidane 'saving' the French effort. Sidelined for the match against Togo on his 34th birthday because of a penalty, tonight's goal erases that disappointment.

If the Spanish were the first formidable team to be put aside by the French squad, now they face the übermanschaft of Brazil on Saturday at 21:00 in Frankfurt. There are no more 'easy' games to come. Only the best of the best make it to the quarter-finals - and who they are will be known to all by this time Saturday Night.

Copyright © 2006 - Ric Erickson, MetropoleParis
This item is crossposted there.

Posted by Alan at 16:52 PDT | Post Comment | Permalink
Updated: Tuesday, 27 June 2006 18:59 PDT home

Monday, 26 June 2006
Shutting Things Down
Topic: Dissent

Shutting Things Down

Actually, the two issues that seem to be at the center of the national dialog as the week began on Monday, June 26, are related, even if they don't seem to be. As the Senate was dropping all other business to work on passing a proposed amendment to the constitution to ban flag burning - something no protester has done since the late sixties - simultaneously the whole right side of things is calling for the New York Times to be charged with treason, or so the Republican Congressman from New York, that excitable King fellow, said should be done. Well, he said that on Fox News Sunday and the president helped him out the following day, just as the Senate was getting into the flag burning thing.

Obviously there's a call from the Republican side for everyone to get patriotic - and some antique form of letting people know you are unhappy with the government should be forbidden, and the press should be patriotic too, and not print what the government says they shouldn't print. Patriotism here is shutting up, and not rocking the boat.

But flag burning? When did that become a problem?

It became a problem, of course, when all the polling is showing the Republicans could easily lose the House in the upcoming November elections, and might lose the Senate too. They need to remind voters that they will let no one protest in the wrong way ever again, like way back when, nor will they let the press print what the government says it shouldn't print. There are limits, and people need to know them. For a crowd that so often derides "political correctness" as an evil that undercuts free speech and "open dialog," there's no small irony here. After all the outrage and anger at "what you can't say" - blacks really are inferior and Mexicans lazy and whatnot - here they are taking a gamble, hoping their hyper-patriotic base and a few in the middle will agree that there are, well, exceptions.

The effort in the Senate is being led by Senate Majority Leader Bill Frist, just as he led the effort to keep one brain-dead woman alive (he said she certainly wasn't, and he was a doctor after all), and just as he led the effort to pass a proposed amendment to constitution to ban gay marriage, as that was just wrong too. He needs a win one of these days, and this may be it. This one may have just enough votes to pass.

Tim Grieve here calls the effort "Gay Marriage II" and that fits. And as the Wall Street Journal notes here, Frist is working with Daniel Wheeler, the executive director of the American Legion and the president of the Citizens Flag Alliance. Wheeler "says he has never seen a flag on fire" but considers the flag-burning amendment "crucial because it 'reflects the values of the American people.'" Right.

Grieve says this -
Here in the reality-based community, we tend to deal more with things we have seen. And as we sit back to watch the Senate debate a constitutional amendment over flag burning, we wonder how some of the things we've seen "reflect the values of the American people." We're thinking here about places like New Orleans and Guantánamo; we're thinking about families struggling to make it on a federal minimum wage that hasn't been increased in nearly a decade; we're thinking about more than 50,000 dead Iraqis, more than 2,500 dead Americans, and thousands upon thousands upon thousands of both who will spend their lives suffering from the devastating injuries of war.

How does any of that "reflect the values of the American people"? And what, exactly, has Bill Frist done about it?
Not much, of course, but we're talking baseball, apple pie and motherhood here.

Really, we're talking baseball, Los Angeles Dodgers' baseball specifically - even if the team motto is, unfortunately, "Go Blue!"

Michael Scherer explains the baseball connection here -
If only for a cigarette lighter, Rick Monday would have gone down in history as just another above-average baseball player, a left-hander who peaked with a 32-home-run season. But on April 25, 1976, two bell-bottomed protesters jumped the outfield fence at Dodger Stadium and streaked onto the field with an American flag, a bottle of lighter fluid and a pack of matches. The first match didn't light. By the time they got the second match going, Monday had run over to snatch the flag away, making his mark as the slugger who saved the Stars and Stripes.

Thirty years later, it is politics as much as patriotism that keeps Monday's achievement in the headlines. Senate Republicans have been treating him like a war hero in recent weeks, passing a resolution to commemorate his courage and holding a Flag Day rally on the lawn outside the Capitol in his honor. The slugger brought with him the yellowed and tattered, but uncharred, flag he saved in Los Angeles, as six senators took their turn at a podium to praise Old Glory and memorialize the outfielder's spot decision. "It is arguably one of the greatest moments in the game," praised Sen. Jim Bunning, a Kentucky Republican, who played as a pitcher in the major leagues until 1971. "Like Rick, we should do everything we can to protect and honor our flag."
Monday was a pretty good ballplayer, and Bunning a fine pitcher, but this is almost comic. One assumes they served apple pie, and photogenic mothers of the June Cleaver type stood around with their cute little blond kids.

But Monday seems to really want to be, as Scherer explains, the "poster boy for the latest attempt to pass a constitutional amendment to ban flag desecration."

Ah, but such things happen when the Republicans sense danger, which in this case is a loss of power.

And this one will be close -
The current vote counts used by both Republicans and Democrats put the flag amendment within one vote of the two-thirds majority needed for passage - the closest margin on this issue in the history of the republic. A total of 14 Democrats, including Minority Leader Harry Reid of Nevada and Dianne Feinstein of California, are expected to join 52 Republicans who support changing the Constitution to allow federal prohibitions of flag burning. A solid minority of senators, including Majority Whip Mitch McConnell and two other Republicans, are expected to hold back the tide. The House, meanwhile, has already passed the flag amendment, under the unlikely leadership of Jack Murtha, the Pennsylvania Democrat, and Duke Cunningham, a now-convicted California Republican.
Stop! Yeah, the House passed it - they'd vote to take the vote way from women and dark skinned folks, to beatify George Bush if the pope would agree, and bring back slavery - as they are heavy with "red meat" conservatives, but the new enemy of the right Jack Murtha, and the man in jail for taking bribes so incompetent contractors got key defense contractors got business, led this. That's delicious.

And there's this from Frist, after the "baseball" rally - "There is a new spirit coming across the country. I think you can feel it in the last six months - people coming together around the flag." What's he been smoking?

Scherer helpfully runs down the main arguments and counter arguments - Senator Patrick Leahy of Vermont saying this is lot like the gay marriage thing, just posturing, and "I think the Constitution is too important to be used for partisan gain." And Mitch McConnell, the Republican from Kentucky, is screwing up his own party by saying he won't vote for it - something or other about free speech and all that, and then he may be up for Frist's job as majority leader.

The cool thing is how they're dealing with McConnell, "trotting out Heather French Henry, a former Miss America from Kentucky, to publicly call for her senator's vote." She says he's not representing "the people." And she was Miss America, after all. She knows. She had the title, officially.

And the Republicans want this debate now, and if it passes, the debate in the legislatures of all fifty states, and it must be ratified by thirty-eight to get added to the constitution. They've got the baseball players, and the former Miss America, and their side. You want to oppose that? Scherer - "Most Republicans have made no secret of their desire to thrust America into a full-fledged debate over a form of protest that went out of style before the Bee Gees fell off the charts."

Then there's Orrin Hatch of Utah -
"Five unelected activist jurists changed the law," Hatch said at the Flag Day rally, referring to the divided 1989 Supreme Court decision that struck down federal laws against flag burning. Hatch, of course, did not mention that one of those "activist jurists" was arch-conservative Antonin Scalia.
Oops. As you recall, the Supreme Court did rule that burning the flag might be offensive, but much free speech can be offensive to one side or the other, and you just didn't go and make rules to make sure no one is offended - that not how it's supposed to work. And Scalia said so.

And as for the matter of urgency -
... Republicans are also struggling to deal with the current trends in flag desecration. In recent years, public reports of flag burning have become far less common than fatal lightning strikes. This has driven Sen. Bob Bennett, the junior Republican from Utah, to oppose the amendment. "It's a non-problem," Bennett told Salon, in a statement. "The only time people burn the flag is when this amendment comes up."

... In 1990, Gallup found that 68 percent of Americans supported the amendment. That number dropped to 55 percent in 2005, a measure that held steady in a CNN poll completed this month. Flag burning is not a red-hot issue for voters in general: A June Wall Street Journal/NBC poll found that only 4 percent of registered voters consider flag burning one of the two most important issues in this year's election. By contrast, 53 percent identified the Iraq war and 32 percent mentioned illegal immigration, while on social issues, 21 percent of voters ranked abortion as a top issue, and 16 percent named gay marriage.

All this may make Americans wonder why the Senate is now closer than ever to forcing another round in the 1970s culture wars.
That's a good question. Everyone really misses the Bee Gees?

Some others make sense. Not a senator yet, but running in Virginia against the incumbent George Allen, is James Webb - the former Secretary of the Navy under President Reagan, the best-selling author (Fields of Fire from 1978), and a former United States Marine Corps officer decorated for valor in the Vietnam War. He's left the Republicans. He's running as a Democrat. Allen is the tobacco-chewing good ol' boy wannabe, son of the famous football coach, with the confederate flags all over (more detail in these pages here). So it's the done-everything, intellectual and writer and lawyer and man of action, against the "I don't read nothin' much" never-in-the-military man of the Old South, who went to high school out here in chic Palos Verdes and cut classes a lot.

Allen wants the amendment to pass. Webb, doesn't -
"Jim Webb has great respect for our national flag and great respect for our Constitution, and is proud of the many contributions his family has made in defense of both. Like many combat veterans such as General Colin Powell and former Senators John Glenn and Bob Kerry, he does not believe it is necessary to amend the Constitution in order to protect the dignity of our flag. This is yet another example of deliberately divisive politics that distract Americans from the real issues that are facing our country," said Kristian Denny Todd, spokeswoman for the Webb campaign.
So why do military men, like Webb and Powell and Glenn, think this is all silliness? Maybe they fought so people had the right to burn the flag if they're angry - it's offensive, yes, and meant to be, but there are bigger issues, and it only makes the "burner" look petty and foolish. What's the problem?

What Webb says on his campaign site -
There are many challenges facing Americans today: an unpopular war, skyrocketing health care costs, a shrinking job market and rising inequality in society. I believe in the strength of American character and the ingenuity of the American people. With the right leaders we can overcome all of these obstacles. America doesn't lack ideas, it lacks leaders willing to stand up and make courageous decisions.

I have fought - and continue to fight - to protect American values. I fought in Vietnam with the hope that the Vietnamese might share the same freedoms we enjoy. I fought as a congressional committee counselor to guarantee our veterans the treatment they deserve. I fought as Secretary of the Navy to maintain the excellence of our military. I fought, pro bono, on behalf of countless veterans and refugees, in order that they might have their voices heard in the vast government bureaucracy. And I will fight in the Senate to give all Americans the chance to achieve their dreams.
Frist would say "that's a loser" and they will attack this -
Webb was commissioned a second lieutenant in the United States Marine Corps. He served with the 5th Marine Regiment in Vietnam as a rifle platoon and company commander. He remained in the Marine Corps until 1972, receiving the Navy Cross, the second-highest award in the Navy; the Silver Star Medal; two Bronze Star Medals; and two Purple Hearts.

Webb wrote his first book, Micronesia and U.S. Pacific Strategy, while a law student at Georgetown University. He received his J.D. in 1975. He served as Assistant Secretary of Defense for Reserve Affairs and then Secretary of the Navy (1987-1988) during the Reagan Administration. He resigned as Secretary of the Navy after refusing to agree to reduce the size of the Navy.

During the 2004 presidential campaign, Webb wrote an op-ed piece for USA Today in which he considered the candidacies of John Kerry and George W. Bush from the perspective of military veterans. He criticized Kerry for his activism against the Vietnam War in the 1970s while affiliated with the Vietnam Veterans Against the War, and Bush for having "committed the greatest strategic blunder in modern memory" with the 2003 invasion of Iraq.
So he's another Kohn Kerry coward, not a fighter pilot like Bush. You know how that will play out.

And then there's the Hollywood thing - Webb wrote the story and was the executive producer for Rules of Engagement (2000), and Tommy Lee Jones and Samuel L. Jackson were in that. And Rob Reiner is directing his Whiskey River, now in production at Warner Brothers over in Burbank. Rob Reiner is so not red state. And too there's his past - Webb won a varsity letter for boxing at Annapolis, but in his second-class (junior) year, he fought and lost in a controversial decision to Oliver North, the fellow convicted of lying to congress in the Iran-Contra business and who now has his own show, War Stories, on Fox News.

So he will probably lose. He doesn't care if some misguided idiot burns a flag one day. He thinks there are bigger issues than punishing such assholes, if they return from the late sixties and early seventies. The congress doesn't. The House passed the thing, and the Senate has dropped everything to try to pass it.

Some of us see the whole thing as kind of a joke. But it's not. It's chipping away at what cannot be "said" politically. That's a dangerous business. Patriots don't shut up when something is just wrong. And both said do dramatic things. How do you draw the line?

The there's the New York Times. How do you draw the line there?

First it was the Pentagon Papers, and now we have Eric Lichtblau and James Risen doing their reporting. Last year it was reporting that the Bush administration was monitoring telephone calls and scanning all telephone records without the warrants required by the Foreign Intelligence Surveillance Act (here). And last week it was the news that the Bush administration has been monitoring and examining the bank records of thousands of American citizens (here). The first won them the Pulitzer Prize. The second made lots of folks angry, like Congressman King from New York, who said here he wants to see the Times prosecuted for running banking story and "putting its own arrogant, elitist, left-wing agenda before the interests of the American people."

Monday, June 26, the president got angry, saying running the story was "disgraceful" and "does great harm to the United States of America." The White House press secretary said this - "The New York Times and other news organizations ought to think long and hard about whether a public's right to know in some cases might override somebody's right to live."

If they know we bent the rules to amass tons of private banking records then they'll hide the money trail and we'll all die? Something like that. You could see the Vice President and every talking head on cable discussing this. You believe there are some things you shouldn't know, as others would then know them too, or you don't, as knowing the administration is breaking a whole lot of laws and bending others, and your privacy is fast disappearing, is a big deal.

So which sort are you?

Arthur Silber puts it nicely here -
When you strip away the numerous distracting details and irrelevancies, people exhibit one of two basic perspectives toward government (including a particular administration that holds power), and toward authority in general. One group, composed of people some might consider skeptics but whom I regard as realists, consistently questions and challenges any concentration of power. Such people recognize one of history's primary lessons: that power seeks to protect its own prerogatives, as it simultaneously seeks to extend its reach. The realists recognize that people who routinely exercise great power should always be held to account for their actions, and there must always be restraints against abuses of power. They reject out of hand anyone's demand for unquestioning loyalty and obedience, a demand often expressed in the form: "Trust me." The realists know that it is precisely the person who makes such demands who is never to be trusted. Honorable people do not demand or expect unquestioning obedience.

The second group is made up of people who are eager to let others make the decisions that shape their lives. They identify with authority in general, and they willingly offer up their own judgment and independence on behalf of those who hold the reins of power. The phrase "speaking truth to power" not only doesn't hold meaning for such people: for these psychological dependents, truth and power are coextensive. The idea that truth and power might be fundamentally opposed almost never occurs to them, because they regard it as inconceivable and incomprehensible. These are the people who do not wait for the demand, "Trust me." They eagerly volunteer their trust to those in power before it is even requested. They think this proves their loyalty. If you rely on others to guide and protect your own life, loyalty is the prerequisite for such protection. The dependents know this without being told - and so do those who hold power. The necessary interrelationship of the dependents and those with power ensures that the scheme will continue without challenge.
And no one should, in anger, burn a flag. That's disloyal.

And as for the press -
The press in this country has voluntarily placed itself in the role of abject dependent for several decades. Many members of the press will rush to reassure us of their independence and their willingness to challenge power - and they will point to their treatment of the Clinton presidency as a notable example. But what did the press challenge in that instance? Not matters of state, and not anything remotely connected to the power government exercises or the policies it pursues - but irrelevant business deals from the remote past, or private sexual behavior. In the same way, if Bush should declare martial law after another terrorist attack and begin to exercise full dictatorial powers, the press will rise to the challenge of questioning absolute power in the new environment in its usual fashion. Our press will offer numerous articles and commentary about whether our President for Life (under an emergency law passed in both houses by large margins) should speak to us more often, to explain how he is protecting us and why we shouldn't be concerned about those friends, acquaintances and even relatives who have mysteriously vanished from our lives. Our President for Life knows what is best for us, our press will tell us repeatedly and with many variations, and he's the only one who can keep us safe. But it would be so much nicer if he reassured us more often. Unlike the members of the press itself, ordinary citizens often don't understand the wisdom exemplified by our leaders, and by our President for Life. They tend to worry unnecessarily. The President for Life should calm their fears, and talk to them regularly in his soothing, folksy way. He should make clear that, although he holds the power of life and death over all of us, he's really a "regular" guy. He just happens to be a dictator - but that last attack showed that's what we need now.
There's much more at the link, but with few exceptions, like the Times at times, that's where we are.

What's happening with these two issues this week is the loyalists against the realists. And the issue is whether folks should just shut up and trust the guys in charge. It's getting pretty basic.

Posted by Alan at 23:01 PDT | Post Comment | Permalink
Updated: Tuesday, 27 June 2006 07:08 PDT home

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