Month: November 2005

He’s still furiously lobbying Senators to protect his right to torture. A man who avoided service in Vietnam is lecturing John McCain on the legitimacy of torturing military detainees. But notice he won’t even make his argument before Senate aides, let alone the public. Why not? If he really believes that the U.S. has not condoned torture but wants to reserve it for exceptional cases, why not make his argument in the full light of day? You know: where democratically elected politicians operate.

It seems that Judge Alito would regard the deliberate abuse of symbols of someone’s religious faith as arguably tantamount to “torture.” Since mockery of Islam has now been documented in many instances of the Cheney-Rumsfeld detainee-abuse policy, this strikes me as worthy of bringing up in Alito’s hearings. A legal reader discovered Alito’s opinion in Fatin v. INS, 112 F.3d 1233, where Alito held that asylum might be available for an Iranian immigrant who refused to wear a veil. Money quote:

In considering whether the petitioner established that this option would constitute persecution, we will assume for the sake of argument that the concept of persecution is broad enough to include governmental measures that compel an individual to engage in conduct that is not physically painful or harmful but is abhorrent to that individual’s deepest beliefs. An example of such conduct might be requiring a person to renounce his or her religious beliefs or to desecrate an object of religious importance. Such conduct might be regarded as a form of “torture” and thus as falling within the Board’s description of persecution in Acosta.

Alito should be asked whether Koran abuse, the forcible eating of pork, the mandatory swallowing of liquor, sexual humiliation, and other documented anti-Muslim instances of abuse under the Cheney-Rumsfeld rules constitute “torture.” (In the end, Alito did not grant the woman asylum, however, because the record did not show that the exile refused to wear a veil under all circumstances. But he set a clear, new, progressive standard in asylum cases. More here.)

Rows and rows of unbought Hummers.

What if we have over-estimated the extent of Jihadist influence in the Iraq insurgency? The bad news is: we’re still fighting Saddam. The good news: the insurgents are mainly rational actors trying to rule Iraq again, not crazy Wahabbists intent on Armageddon throughout the Middle East. This is why Zalmay Khalilzad has had some success at brokering some small deals with the Sunni elites. If this is the scenario, even Juan Cole might be hopeful. From a blogger’s account of a recent Cole college talk:

From this theory, though, Juan Cole draws an improbably optimistic conclusion — optimistic at least in a relative sense. Both the insurgency and the government are signaling that their objectives are political, not existential. They each want to rule Iraq, not exterminate the other side — although both sides have their eliminationist wings.

This creates the hope that in Iraq, as in Clausewitz’s doctrine, civil war is the continuation of politics by other means, not the opening salvo of the war of the all against the all. And this at least holds out the possibility (hope would be too strong a word) that the various sides will eventually realize they have to compromise — just as the warring factions in Lebanon brokered a workable peace once the leaders of the major factions decided it was no longer in their interests to keep fighting.

If this is the case in Iraq — if the war is essentially political — then America might not face the Hobson’s choice I’ve feared: Withdraw quickly, leaving behind a genocidal civil war, or stay, and get sucked into a brutal counterinsurgency campaign that itself could turn genocidal. U.S. forces could, in theory, be drawn down gradually, while disengaging from direct combat operations and playing more of a balancing role — preventing the Ba’athists from shooting their way back into power, while trying to stop the Kurds and the Shi’a from overreaching in ways that could break up Iraq entirely and trigger a regional war.

That’s exactly the scenario I lay out in a column tomorrow in the Sunday Times. We should by all means subject our own government to scrutiny. But we are still at war. And it would be insane to give up now, when all sorts of opportunities lie ahead.

Here’s an email typical of one I get all the time:

I have been a big fan of your blog for some time now, but I do have one major problem reading it – the white lettering on purple background makes it really hard for me to look at the site for any extended period of time. This is not an aesthetic problem – I absolutely no sense of color coordination and would not presume to criticize from that perspective. What I mean is that I find your site physically hard to read due some weird light dynamics related to the color scheme. Further, when I switch to a new site, I have to take a break for a minute or two until my eyes reset – like post-looking at a bright light or the sun.

I take the point. I actually like the color scheme and hope to retain it in an upcoming redesign. But I know it can be hard for some to read. That’s why there’s a little button up top of the Dish, just under the words “Daily Dish”. It’s easily missed but it says: “Black & White.” Click on it and the colors reverse.

Dale Carpenter finishes his superb defense of equality in marriage on the Volokh blog. Click here and scroll down for more. Jon Rowe has further thoughts (and if you aren’t familiar with his blog, you should be). Meanwhile, don’t forget that the most readable, funny, honest and persuasive book on the subject published this year is Dan Savage’s “The Commitment.” You know Dan from the summer when he guest-blogged here. The book is a rare blend of comic genius, frank memoir, and piercing, deadly forensics.

Some tough talk from a future Democratic presidential contender.

CHENEY AND WMDS: It’s the vice-president who’s been most active in preventing any real investigation of the intelligence discussions before the war. Update from Mike Crowley:

[Harry] Reid also made it clear that he believes the delay in the Senate Intelligence Committee’s investigation of prewar Iraq WMD–the underlying issue behind Tuesday’s closed session–is entirely attributable to Vice President Dick Cheney. “Nothing happens regarding intelligence gathering … unless it’s signed off on by the Vice President,” he said. “[Senate Intelligence chairman Pat] Roberts couldn’t do it”–i.e., Roberts couldn’t conduct a full investigation without Cheney’s approval. When I asked Reid whether he meant to state so flatly that Cheney was personally and directly stalling the Intelligence Committee’s work, he didn’t pause a beat. In fact he almost stood from his chair. “Yes. I say that without any qualification … Circle it.”

Many already have. Meanwhile, there’s more evidence that some pre-war WMD intelligence that might have undercut the administration was ignored or sidelined:

A high Qaeda official in American custody was identified as a likely fabricator months before the Bush administration began to use his statements as the foundation for its claims that Iraq trained Al Qaeda members to use biological and chemical weapons, according to newly declassified portions of a Defense Intelligence Agency document

Worth emphasizing here: this is not necessarily evidence of deception. It fits into a pattern of insufficient skepticism in advance of the war. The consensus was so great and the risk so dangerous after 9/11 that debunking Saddam’s claims was not on the agenda as much as, in retrospect, it should have been. It sure wasn’t on mine; and I regret it. But then, I didn’t have access to all the classified data, and the Bush people did. It’s clear now at least that we could have done with a bit more “conservatism of doubt” in the run-up to the war.

The much-bally-hooed official document has been pushed back again, according to National Catholic Reporter’s John Allen. (I should point out that some have tried to argue that earlier alarms about the policy were based entirely on reporting in the New York Times. Not true. They reports came from conservative Catholic sources and John Allen, one of the most clued-in Vatican journalists, and were confirmed by extreme statements – subsequently largely walked back – by Archbishop O’Brien). Money quote from Allen:

The official, who is familiar with the content of the document, told NCR its central message is that “homosexuals are not welcome in the priesthood.” The official said it also sets out guidelines, however, such as the capacity for celibacy, avoidance of the “gay lifestyle,” and the absence of an “overwhelming, permanent” orientation, which could make application less absolute than some of the document’s hard-line language may suggest.

This official said that the key to understanding the document is grasping its genre.

“This is not a matter of sacramental theology,” he said. “It’s not saying that homosexuals are intrinsically unworthy of being priests. It’s a matter of prudential judgment, that this is not a good idea.”

I’m going to wait for the actual document before commenting further. But there are both ominous and not-so-ominous signals coming from the Vatican.

“It was very brave of MTV to start the show with a transvestite.” – Borat, Kazakhastan media celebrity, on Madonna’s amazing performance at the MTV Europe music awards. She’s peerless.

Ramesh Ponnuru and Stephen Bainbridge respond to Amy Sullivan’s worry that pro-life Catholic judges might be refused communion if they dOn’t vote to overturn Roe or be less than categorical in abortion cases. Amy responds again. Ramesh says there’s an obvious distinction between legislating a substantive issue, and making a legal judgment on constitutional law. I see his point. But if such a judgment effectively allows abortion to continue, isn’t the judge de facto informally “cooperating with evil” and thereby liable to Church sanction with respect to the sacraments? Bainbridge argues:

There are cases–albeit only in those limited class of cases in which a judge’s decision constitutes formal cooperation with evil–in which a Catholic jurist is religiously obligated to put his faith-based beliefs ahead of, say, his views of precedent. Conversely, however, it seems clear that judicial decisionmaking–even with respect to issues, like abortion, that raise very profound questions–under Church teaching does not per se constitute formal cooperation with evil.

That’s a revealing per se qualification. Then he goes on to say:

[W]here a Catholic judge believes his participation in a particular case would constitute formal cooperation with evil, the judge should recuse himself–as often happens. The possibility that a judge (or justice) might have to recuse himself in occasional cases, however, does not strike me as a legitimate reason to deny the judge a seat on the bench.

I agree with the latter point. But what we are seeing are the political consequences of the Catholic hierarchy’s slow collapse into fundamentalism. Once a Catholic is denied the moral capacity to separate her public duties from her private faith – or risk exclusion from the sacraments – then she is in an acute conflict between public duty and private conscience. Recusal may be her only option. But we now have five Catholics on the court. In Benedict’s church, on critical Constitutional questions, we might face five recusals in abortion cases, which would make any ruling largely meaningless. This is the consequence of the Vatican’s retreat from the Second Council’s acceptance of religious freedom and conscience, and Benedict’s deep qualms about a clear separation of church and state. The theocons want to reverse the Kennedy compromise. And in doing so, they may be forcing Catholics in public life to withdraw altogether or face the charge of a religious conflict of interest. In their zeal, the theocons are unwittingly breathing new life into anti-Catholic prejudice, and new force behind the exclusion of Catholics from public life in a pluralist democracy.