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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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Friday, 30 June 2006
Religion: Two Hundred Thirty Years and We Still Argue
Topic: God and US

Religion: Two Hundred Thirty Years and We Still Argue

The week was dominated by the news of the Supreme Court decisions, particularly that amazing one on the last day of the court's term (all discussed here), and the current invasion of Gaza by the Israelis with them taking parts of the Palestinian government into custody, blowing up lots of infrastructure so as the week ended there was no water available there at all, and buzzing the government buildings in the Syrian capitol with the fighter-bombers we've sold then over the years, all to get that one soldier back. Things are a bit hot there. Then there were the calls for the New York Times to be charged with treason for printing a story about how we traced the terrorists' financial transactions, which the administration had actually boasted about doing some years back. It was supposed to be a secret? Guess so (discussed here along with the flag-burning business). And the week ended with this - "The American military is investigating accusations that soldiers raped an Iraqi woman in her home and killed her and three family members, including a child, American officials said Friday. The investigation is the fourth into suspected killings of unarmed Iraqis by American soldiers announced by the military in June. In May, it was disclosed that the military was conducting an inquiry into the deaths of 24 civilians in Haditha last November." We are the good guys, we really are.

And those were just the major stories. We live in turbulent times, and just where this all is heading is unclear. This country seems to be disintegrating before our eyes, or seems so to some, and you even get discussions of whether our president can be charged with war crimes - see this and this - theoretically possible but politically quite unlikely, even implausible. That's new. War crimes? That's unprecedented.

But the Fourth of July is fast approaching, and we can use the day to feel good about things - or not. Are you patriotic? Yeah, maybe you are. But are you godly?

Why should that come up now? Well, under the major stories there's some disagreement about core values that's getting nasty.

Things used to be different. Susan Jacoby is quoted here on the matter of church and state -
Those who cherish secular values have too often allowed conservatives to frame public policy debates as conflicts between "value-free" secularists and religious representatives of supposedly unchanging moral principles. But secularists are not value-free; their values are simply grounded in earthly concerns rather than in anticipation of heavenly rewards or fear of infernal punishments. No one in public life today upholds secularism and humanism in the uncompromising terms used by Ingersoll more than 125 years ago.

Robert Green Ingersoll on July 4, 1876, the 100th anniversary of the Declaration of Independence - "Secularism teaches us to be good here and now. I know nothing better than goodness. Secularism teaches us to be just here and now. It is impossible to be juster than just. Secularism has no 'castles in Spain.' It has no glorified fog. It depends upon realities, upon demonstrations; and its end is to make this world better every day - to do away with poverty and crime, and to cover the world with happy and contented homes."

These values belong at the center, not in the margins, of the public square. It is past time to restore secularism, and its noble and essential contributions at every stage of the American experiment, to its proper place in our nation's historical memory and vision of the future.
Yep, there are those of unchanging moral principles - Jesus is their savior and they know in which parts of the New Testament he was just kidding about tolerance and loving your neighbor and all the rest - and the rest of us just have no values. And the government should operate on those unchanging moral principles - and deal harshly with gay folks and those who would let other religions be and all the rest.

And there's no "making the world better." Life nasty, mean, brutish and short, and people need to be kept in line - and anyway the end is coming with its Rapture, and improving things thus seems kind of pointless.

But why would the issue of church and state and basic values come up this week? Well, someone stirred the pot again, and that would be the rising young star of the Democratic Party, Barack Obama, the junior senator from Illinois. He gave a speech at a conference of Call to Renewal, a religious group that wants to reduce poverty in America if they can. That speech would have been harmless enough, but he called for Democrats to embrace religious rhetoric from public platforms, and for the party to just lighten up about school prayer and all the other faith-based issues. It was, maybe, a "get religion and give in" speech. It raised some eyebrows. Liberal politics can be fused with religion? Really? For liberals religion was always a private matter, not political.

From a quick survey the reaction were mixed. From the left Michelle Murrain said this - "In the end, I think that this is very positive. He is right, most people in this country have some sort of faith, and Republicans have exploited this to forward their basically immoral agenda. He's not saying, and I'm not saying that we need to do the same. What he is saying, and I agree, is that politics and religion do mix, and we (that is, progressives) ignore that at our own peril." But another staunch Democrat said this - "I would agree with Obama that Democrats need to reach out to the Evangelical community, but let's not be stupid about it. Let's not compromise our principles and our beliefs in the basic humanity of ALL Americans in a cheap, transparent effort to woo a few more votes come November."

The widely-read lefty Duncan Black said this - "If you think it's important to court evangelicals, then court them. If, on the other hand, you think it's important to confirm and embrace the false idea that Democrats are hostile to religion in order to set yourself apart, then continue doing what you're doing. It won't help the Democrats, and it probably won't even help you, but whatever makes you happy."

In response to that there was this - "What nonsense! Obama's speech was far more critical of the cynical use of religion by the religious right than an attack on Democrats."

Maybe it was, but that's not how people saw it.

On the other side, Albert Mohler, president of the Southern Baptist Theological Seminary, thinks Obama offers "secularism with a smile," that he "seems to believe in the myth of a universal reason and rationality that will be compelling to all persons of all faiths, including those of no faith at all. Such principles do not exist in any specific form usable for the making of public policy on, for example, matters of life and death like abortion and human embryo research." That's here - there's no such thing as universal reason and rationality, as those two things never did anyone any good (the Enlightenment and all the science and political theory that arose from it was a crock, it seems). And anyway, you cannot be rational about abortion and human embryo research - you can only be right, or wrong. Rationality has nothing to do with it.

Michelle Goldberg, the author of the new book Kingdom Coming: The Rise of Christian Nationalism, thinks something even deeper is at play. She's a bit alarmed about what she has named, probably rightly, Christian Nationalism. That's what her book is all about - all the organizations with the explicit aim of creating a Christian nation, not exactly a theocracy, but a government that is run on purely Christian principles, allowing those of other religions and values only limited rights and little say in things. There a whole lot of these folks.

But she understand them, as she explains here -
When I was in Dover, PA during the intelligent design controversy, a preacher's wife told that if evolution is true, life has no meaning. "Where's this universe heading?" she asked. "What's the purpose of it all? There's no standard, no guidelines." Obviously, Democrats should not join Republicans in pretending that they have a lock on divine truth, but they can speak to people's anxiety, their hunger for community and purpose. The religious right offers people a narrative arc, not just about their own lives, but also about America's decline and imminent resurrection. Democrats need a mobilizing vision as well, one that speaks to the despair that underlies so much of our politics.
Ah, it's the existential despair thing. Since the secular left offers no comfort for "the absurd" - just fixing this policy or that and repairing roads or whatnot - the party that offers "meaning" in this sorry world gets their support.

Now THAT'S hard to counter. And she says that the trouble with Barack Obama's recent speech about religion and the Democratic Party is not "his embrace of religious language in the service of liberalism" -
Religious speech can be transcendent, and genuinely Christian ideals about justice and mercy can inspire even non-believers. The right has successfully convinced much of the country that the Democratic Party is hostile to people of faith, and speeches that work to counter that myth are valuable.

Unfortunately, Obama's rhetoric ends up reinforcing Republican myths about liberal Godlessness instead of challenging them.
Yeah, the other side really should take the religious right's rhetoric seriously, and should engage and argue with the movement's ideas and not just scoff at it all as fanaticism. There is a "spiritual void at the heart of American life" - social movements that offer people meaning and "existential solace along with practical policy solutions" are a good thing.

Obama -
Each day, it seems, thousands of Americans are going about their daily rounds - dropping off the kids at school, driving to the office, flying to a business meeting, shopping at the mall, trying to stay on their diets - and they're coming to the realization that something is missing. They are deciding that their work, their possessions, their diversions, their sheer busyness, is not enough. They want a sense of purpose, a narrative arc to their lives.

They're looking to relieve a chronic loneliness, a feeling supported by a recent study that shows Americans have fewer close friends and confidants than ever before. And so they need an assurance that somebody out there cares about them, is listening to them - that they are not just destined to travel down that long highway towards nothingness.
Yeah, he gets it. People do have a problem with that nothingness scenario. Those of us who have made our peace with it are just too smug. And he suggests keeping the God words in the Pledge of Allegiance is no big deal, or voluntary student prayer groups using school property to meet, and certain faith-based programs - targeting ex-offenders or substance abusers - are fine, as they fix things.

But Goldberg contends this is silly, as there really is no battle at all -
It is a common right-wing talking point that liberals want to take the phrase "under God" of the pledge of allegiance. Undoubtedly, some of us regret that, during a moment of Cold War panic in 1954, our government amended the historic pledge to put the word God in it. However, there is now no organized movement to take it out. The California man who sued over the pledge a few years ago represented no one but himself, and in 2002, when the 9th Circuit voted in his favor, many ardent defenders of church/state separation groaned. "This is a godsend for the religious right," Rob Boston of Americans United for Separation of Church and State told me that day. "They're going to raise millions of dollars on this issue. I'm sure even as we're speaking, there are presses running overtime printing fundraising letters saying, 'Save the Pledge of Allegiance!'" Meanwhile, the Supreme Court had recently ruled that public money could be used for religious school tuition. "We're on the verge of tax-supported religion in this country. It's a startling change of policy, and instead of taking a hard, serious look at that, we're going to spend a couple of months arguing about the Pledge of Allegiance."
You do notice that no liberal anyone knows and not one Democrat is fighting against the mention of God in the Pledge of Allegiance. What's the deal here? The left did what, exactly? They should be asking why the government is funding specific religious education, but they're not even doing that.

It's all a myth -
Similarly, no one is stopping religious kids from gathering together to pray at school. Last year, when I was writing about the myth of the War on Christmas, I interviewed Charles Haynes, a senior scholar at the First Amendment Center and an expert on religion in public schools. He's presented as a heroic voice of sanity in John Gibson's ridiculous book "The War on Christmas: How the Liberal Plot to Ban the Sacred Christian Holiday Is Worse Than You Thought." This is what he told me: "The big picture is that there's more religion now in public schools than ever in modern history. There's no question about that. But it's not there in terms of the government imposing religion or sponsoring it, and that bothers some people on the right. They miss the good old days when public schools were semi-established Protestant schools."

In the last two decades, Haynes said, "religion has come into the public schools in all kinds of ways ... many schools now understand that students have religious liberty rights in a public school, so you can go to many public schools today and kids will be giving each other religious literature, they will be sharing their faith. You go to most public schools now and see kids praying around the flagpole before school." In this evangelical climate, I suspect many students who practice minority religions, or no religion at all, are made to feel far more alienated than when I was in school during the 80s and 90s. Nevertheless, when schools have stopped kids from engaging in religious speech - say, not letting them hand out religious tracts at lunch - the ACLU has stepped in to defend them, and they've been correct to do so. Liberalism, at its best, stands for free speech, even when that speech is annoying.
So the problem here is that Obama is basically saying the left and the progressives, and the major players in the Democratic Party, should stop doing what they're not doing.

What should be at issue these days? Goldberg has some ideas -
The relevant argument, then, is not about whether there will be prayer in public schools. It's about whether there will be government-mandated prayer in public schools. The argument is not whether religion can do good things in people's lives. It's whether the government should fund religion. The argument is not even whether religious groups should contract with the government to provide social services - Catholic Charities, the Salvation Army and others have been doing that for decades. It's whether religious groups that do receive taxpayer funds should be permitted to proselytize on the public dime, and to refuse to hire those of the wrong faith. The relevant debate is about government-financed religious discrimination. The rest is just a smokescreen to make it seem like defenders of the First Amendment are the ones on the offensive.
Yeah, it's all upside-down.

But what should the government be doing?

One of the contributors at Firedoglake says it seems so simple -
Congress shall make no law respecting
an establishment of religion, or prohibiting the free exercise thereof;
or abridging the freedom of speech, or the press;
or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

The first amendment puts the free exercise of religion right next to the freedom of speech and the press, and both of these next to the freedom to participate in the political realm shared by all. For over two centuries, society in general and the courts in particular have struggled with how to hold these three in tension. ... We all want our own beliefs respected, and part of that respect is the freedom to express them in public.

One big aspect of the whole "separation of church and state" discussion is generational. In the early 1960s, the Supreme Court made two major rulings that causes the TheoCons to scream for the heads of the Court. In 1962, the Court ruled in Engel v. Vitale (370 US 421) that the "Regent's Prayer" used in the public schools of the state of New York was unconstitutional. This prayer said "Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers, and our Country." (Students forced to pray for teachers: was this what Jesus had in mind when he said "Love your enemies, and pray for those who persecute you"?) The next year, the Court ruled in School District of Abingdon Township, Pennsylvania v. Schempp (374 US 203) that the practice of a daily Bible reading led by the teacher followed by a recitation of the Lord's Prayer by the class is similarly unconstitutional.

Maybe it's because I never went to school in NY prior to 1962, but I like letting schools be schools, churches be churches, mosques be mosques, holy groves of trees be holy groves of trees, and so forth. But for some of a certain age who DID attend such schools, the loss of these prayers and practices felt like having a part of their school heritage cut out. The TheoCon leaders tapped into this pain, turned it into anger, and have used it ever since to fuel a "return to God" movement against the Court and all who agree with these rulings.
It that same existential despair thing - and the votes you can generate from it. Mix it with nostalgia for the good old days that never were, and you win, big time.

And the "return to God" things is really working (emphases added) -
Some of the more recent cases have cut into this protection of the religious rights of those in the political minority. In Employment Division of the State of Oregon v. Smith in 1990 (494 US 872), Justice Scalia wrote for a 5-4 majority that the state was within the law when it fired a Native American drug rehabilitation worker for using peyote as part of a Native American religious ritual. The most disturbing part of Scalia's opinion was this, because he accurately assessed the import of his ruling: "It may fairly be said that leaving accommodation to the political process will place at a relative disadvantage those religious practices that are not widely engaged in; but that unavoidable consequence of democratic government must be preferred to a system in which each conscience is a law unto itself or in which judges weigh the social importance of all laws against the centrality of all religious beliefs." (p. 891)

In other words, Scalia says that those who practice minority religions or those with practices rooted in opposition to prevailing religious beliefs only have such rights as the majority deigns to give them politically. This worries me greatly, because I break the laws of California (and at least 22 other states) every Sunday by providing alcohol to minors, some only just old enough to walk. It is part of a Sunday morning conspiracy of lawbreaking that goes by various names, including Holy Communion, the Eucharist, and the Lord's Supper. According to a compilation of state liquor laws as found in the Alcohol Policy Information System, run by the National Institute on Alcohol Abuse and Alcoholism (part of the NIH), at least 23 states provide no exception in the law for alcohol used in religious ceremonies. The only thing keeping me and my co-conspirators out of jail is the willingness of the various district attorneys and police departments to look the other way. (It's just a sip, officer...) That's not very comforting.
But that's the way it is.

But the real issue in this item isn't "the protection of beliefs of those in the political minority" - or the rights of those who just don't believe. You can make an argument for the church - any church - to support the separation of church and state. This doesn't have to do with the courts and all - it has to do with the question of "who speaks for the church?" You want these clowns in Washington speaking for your church? Have you no pride?

The idea is that the separation of church and state because it protects both church and state -
Bush has wrapped himself in the cloak of Evangelical Christianity. He ran for office twice on a platform of Christ guiding his policy. Check that knee before it jerks. However, we are now a global community, many people are being introduced to Christianity through this overtly faith branded administration and ... the current administration is giving Christianity a bad name. Which is the ever-loving point behind the separation of church and state.

... It's one thing to have to clean up my own sins and (as a pastor) the sins of my church. My mess, my problem. But having the sins of the White House attributed to me and my beliefs is more than I want to deal with. (It's bad enough that I have to take them as an American, but as a Christian? No thanks!)

... Think about it: who do you want speaking for your beliefs and your church (or whatever your collection of like-minded folks might be called)?
Yeah, but the Christian Nationalists got a taste of political power - having the force of the government behind you to make everyone else do what you think is right - and that's pretty heady. Bush may be an embarrassment at times - a bit dim-witted and inarticulate - but the power is intoxicating. It's a trade-off.

Some don't like it, of course. See Andrew Sullivan from early May - My Problem with Christianism: A Believer Spells Out the Difference Between Faith and a Political Agenda.

He does not use the term Christian Nationalists. He prefers Christianism. He explains it this way -
Christianity... is simply a faith. Christianism is an ideology, politics, an ism. The distinction between Christian and Christianist echoes the distinction we make between Muslim and Islamist. Muslims are those who follow Islam. Islamists are those who want to wield Islam as a political force and conflate state and mosque. Not all Islamists are violent. Only a tiny few are terrorists. And I should underline that the term Christianist is in no way designed to label people on the religious right as favoring any violence at all. I mean merely by the term Christianist the view that religious faith is so important that it must also have a precise political agenda. It is the belief that religion dictates politics and that politics should dictate the laws for everyone, Christian and non-Christian alike.
That may be overly clever, but it captures what's going on - you have specific values and beliefs, and if you get enough political power, you can insist others subscribe to those particular and specific values and beliefs, and behave appropriate to them, or face the penalties under the laws established by the political system. How could you resist the tempatation?

But then, when "the discourse about faith is dominated by political fundamentalists and social conservatives, many others begin to feel as if their religion has been taken away from them."

Who would that be?

The list -
The number of Christians misrepresented by the Christian right is many. There are evangelical Protestants who believe strongly that Christianity should not get too close to the corrupting allure of government power. There are lay Catholics who, while personally devout, are socially liberal on issues like contraception, gay rights, women's equality and a multi-faith society. There are very orthodox believers who nonetheless respect the freedom and conscience of others as part of their core understanding of what being a Christian is. They have no problem living next to an atheist or a gay couple or a single mother or people whose views on the meaning of life are utterly alien to them - and respecting their neighbors' choices. That doesn't threaten their faith. Sometimes the contrast helps them understand their own faith better.

And there are those who simply believe that, by definition, God is unknowable to our limited, fallible human minds and souls. If God is ultimately unknowable, then how can we be so certain of what God's real position is on, say, the fate of Terri Schiavo? Or the morality of contraception? Or the role of women? Or the love of a gay couple? Also, faith for many of us is interwoven with doubt, a doubt that can strengthen faith and give it perspective and shadow. That doubt means having great humility in the face of God and an enormous reluctance to impose one's beliefs, through civil law, on anyone else.
Sullivan claims a clear majority of Christians in this country fall into one or many of those camps. The evangelical right would say they're not "real" Christians.

And there's the political tidal wave -
... the term "people of faith" has been co-opted almost entirely in our discourse by those who see Christianity as compatible with only one political party, the Republicans, and believe that their religious doctrines should determine public policy for everyone. "Sides are being chosen," Tom DeLay recently told his supporters, "and the future of man hangs in the balance! The enemies of virtue may be on the march, but they have not won, and if we put our trust in Christ, they never will." So Christ is a conservative Republican?

Rush Limbaugh recently called the Democrats the "party of death" because of many Democrats' view that some moral decisions, like the choice to have a first-trimester abortion, should be left to the individual, not the cops. Ann Coulter, with her usual subtlety, simply calls her political opponents "godless," the title of her new book. And the largely nonreligious media have taken the bait. The "Christian" vote has become shorthand in journalism for the Republican base.
So what can the majority of "not good enough" Christians do about it? The idea here is the worst response, would be to construct something called the religious left, no matter what the junior senator from Illinois thinks -
Many of us who are Christians and not supportive of the religious right are not on the left either. In fact, we are opposed to any politicization of the Gospels by any party, Democratic or Republican, by partisan black churches or partisan white ones. "My kingdom is not of this world," Jesus insisted. What part of that do we not understand?
So Sullivan is having none of this mix of church and state -
That's what I dissent from, and I dissent from it as a Christian. I dissent from the political pollution of sincere, personal faith. I dissent most strongly from the attempt to argue that one party represents God and that the other doesn't. I dissent from having my faith co-opted and wielded by people whose politics I do not share and whose intolerance I abhor. The word Christian belongs to no political party. It's time the quiet majority of believers took it back.
Good luck with that. It may be too late. No one believes there is any "quiet majority," anymore than they believed Richard Nixon when he said there was a "silent majority" behind him all the way, agreeing with everything he did, who just didn't say a word for some reason. It's pretty to think so. And it's foolish.

So July Fourth will mark two hundred and thirty years of getting this church and state thing settled. The "Founding Fathers" probably thought they made things quite clear. And they sort of did, actually. But after all these years people still don't like the idea. The transitory news of the day comes and goes. This pesky issue is always around.

And for those of us who have embraced the absurd, who are "destined to travel down that long highway towards nothingness" and are fine with it - that's the way things are, and you do your best to do good things, be kind and tolerant, and inquisitive - look at all this and smile ruefully.

Posted by Alan at 23:21 PDT | Post Comment | Permalink
Updated: Friday, 30 June 2006 23:42 PDT home

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

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