Will Marriage Equality Get Its Day In Court?

Lyle Denniston brings us the latest on the question:

Matching the speed of lawyers and lower courts in handling the same-sex marriage controversy, the Supreme Court on Wednesday set the stage for its first look at all of the pending cases, when the Justices assemble on September 29 for a private Conference.

Seven petitions — three from Virginia, and one each from Indiana, Oklahoma, Utah, and Wisconsin — will be submitted to the Justices at that session.  There is, of course, no certainty that they will act on any or all of them at that point, but the option is there.  With all sides agreeing that the time to rule is now, it would be a surprise if the Court opted to bypass the issue altogether in its new Term.

Michelle Garcia lays out the possible implications:

If the court rules in favor of marriage equality in all of these cases — or allows the current rulings from lower courts to stand — an additional 65 million Americans would live in states with full marriage equality. Currently, roughly 137 million people, or 44 percent of U.S. inhabitants, live in a state with marriage equality.

Congress Isn’t Doing Its Job

enator Lindsey Graham (R-SC)

Obama is claiming, dubiously, that he has the unilateral authority to fight ISIS. Even if that were true, Drum sees good reason to get Congressional approval:

If Obama is truly serious about not sending combat troops into ISIS-held areas in Iraq, then let’s get a congressional resolution that puts that in writing. Let’s get an authorization for war that spells out a geographical area; puts a limit on US troop deployments; and specifically defines what those troops can do. … It forces the president to explicitly request an escalation and it forces Congress to explicitly authorize his request. At the very least, that prevents a slow, stealthy escalation that flies under the radar of public opinion.

Why Andrew Napolitano wants Congress involved:

[W]ar often has surprise endings and unexpected human, geopolitical, and financial consequences. A debate in Congress will air them. It will assure that the government considers all rational alternatives to war and that the nation is not pushed into a costly and bloody venture with its eyes shut. A congressional debate will compel a written national objective tied to American freedom. A prudent debate will also assure that there will be an end to hostilities determined by congressional consensus and not presidential fiat.

Rand Paul, for one, is speaking up:

“It doesn’t in any way represent what our Constitution dictates nor what our founding fathers intended,” Paul, a likely 2016 presidential contender said on Fox News. “So it is unconstitutional what he’s doing.

“He should have come before a joint session of Congress, laid out his plan—as he did tonight—and then called for an up or down vote on whether or not to authorize to go to war,” Paul added. “I think the President would be more powerful [and] the country would have been more united.”

But Keating won’t be surprised if Obama chooses to go it alone:

It’s certainly valid to argue that just because ISIS have proven themselves to be more Kobe than jayvee, it doesn’t mean that airstrikes in Syria are a prudent policy. And there’s a good debate to be had about the role of Congress in authorizing military action in an age of asymmetrical threats and drone warfare. But let’s not kid ourselves: Shooting first and asking Congress later has become the rule, not the exception.

(Photo: by Melina Mara/The Washington Post via Getty Images)

Quote For The Day

“The fact is that Waking Up lends a different picture of Harris (at least to me): an intelligent and sensitive person who is willing to undergo the discomfort involved in proposing alternatives to the religions he’s spent years degrading. His new book, whether discussing the poverty of spiritual language, the neurophysiology of consciousness, psychedelic experience, or the quandaries of the self, at the very least acknowledges the potency and importance of the religious impulse—though Harris might name it differently—that fundamental and common instinct to seek not just an answer to life, but a way to live that answer,” – Trevor Quirk, TNR.

Quirk doesn’t care for the new atheists and, until reading this book, was repelled by Sam’s public persona. But I’ve known Sam for a while now and always knew he was different from the others in his camp. His book is a place where the atheist, the spiritual and the religious can meet and argue. Join me in this month’s Book Club discussion of Waking Up. Get it here. We’ll be debating it in October. One reader’s on board:

What a timely choice for the next book! I’ve had a somewhat searching summer and finally gave myself the permission to identify as an atheist. That doesn’t necessarily mean that I’ve taken a stand on the issue of God’s existence, but for all my life I’ve had a mental block against the word atheist. Atheism, on its face, seemed to lack the rich language necessary to sort out a complex world. In its fight against irrationality, it had forgotten how to make us feel (with notable exceptions). This gap felt real to me, but allowing myself the possibility of atheism applying to me opened me up a bunch of writers and thinkers.

Naturally, at one point or the other, I found myself reading Sam Harris. I definitely don’t agree with everything he writes, but it’s undeniable that he writes well and demands from you your attention. Waking Up seems to fit exactly into this gap that I mentioned. I had pre-ordered it when Sam Harris announced the project. Very excited to read the book and see what fellow Dishheads thinks.

Send those thoughts to bookclub@andrewsullivan.com.

The President’s Bullshit Legal Basis For War

Refugees Fleeing ISIS Offensive Pour Into Kurdistan

Eli Lake passes it along:

One Obama administration official said the argument that the new war is legal under the 2001 AUMF stems from the fact that ISIS began as a franchise of al Qaeda. Initially ISIS was known as al Qaeda in Iraq and at one point its leader, Abu-Bakr al-Baghdadi, pledged allegiance to al Qaeda in what’s known as an oath of Bayat.

But that argument would essentially ignore the fact that Baghdadi today has publicly broken with al Qaeda and declared himself the Caliph of the Muslim world.

Elias Groll hears a version of the same argument:

According to the senior administration official, that split does not matter for the purposes of targeting the Islamic State under the AUMF because of its “longstanding relationship with al Qaeda and Osama bin Laden” and “its long history of conducting, and continued desire to conduct, attacks against U.S. persons and interests.” In addition, the official said, there is “extensive history of U.S. combat operations against ISIL dating back to the time the group first affiliated with AQ in 2004.” ISIL is an alternate name for the group.

Describing the group as “supported by some individual members and factions” of groups aligned with al Qaeda, the official described the Islamic State as “the true inheritor of Osama bin Laden’s legacy.”

Robert Chesney, who is “cautiously supportive” of the Obama’s ISIS policy, rejects this legal rationale:

Until this evening the big AUMF interpretive boundary seemed to be the notion that it extended only to AQ’s associated forces actually engaged in hostilities against the United States (though the recent al Shabaab strike perhaps shows this line was not so important after all?). Now we are speaking not just of “associated forces,” but also “disassociated forces” that might, from a certain point of view, be seen as “successor forces.” Will we later hear of the AUMF applying to associated forces of this successor force? It is not hard to imagine many of them popping up the Iraqi-Syrian theater.

Benjamin Wittes is also throughly unimpressed by the administration’s logic:

This is not a stable or sustainable reading of the law, absent some dramatic, non-public intelligence about the ISIS-Al Qaeda relationship. Remember that this is a law that barely a year ago, President Obama was lecturing us needed to be narrowed and repealed. “This war like all wars must end,” he piously intoned. Apparently not, however, before we dramatically expand its interpretive scope and deploy it to support a new and open-ended military campaign that, in the president’s own words, “will take time.” All to avoid asking the girl, who might say no, to dance.

Jack Goldsmith joins the chorus:

The largest irony here is that President Obama has long hoped to leave a legacy of repealing the Bush-era authorization and declaring the “war” against al Qaeda over. “I look forward to engaging Congress and the American people in efforts to refine, and ultimately repeal” the 2001 law’s mandate” he said in a speech last May at the National Defense University. “I will not sign laws designed to expand this mandate further,” he added, before insisting that “history” and “democracy” demand that “this war, like all wars, must end.”

President Obama never did engage Congress to refine the 2001 law. The violent reality of the Islamic State has quickly belied the supposed demands of history and democracy. And the President, all by himself, has now dramatically expanded the 2001 mandate.

Ilya Somin counters those who contend that this isn’t a war:

Some defenders of the administration, such as legal scholar Peter Spiro, argue that the campaign against ISIS does not need congressional authorization because it is not a “real war,” primarily because the president assures us it will be limited to air strikes and probably won’t involve a risk of significant US casualties. The president himself said tonight that the campaign against ISIS “will not involve American combat troops fighting on foreign soil.” Such arguments are difficult to credit. Air attacks are among the most important instruments of modern warfare, and Air Force and Navy pilots surely qualify as combat troops; and it’s hard to see a meaningful distinction between “fighting on foreign soil” and bombing foreign soil. Repeated air strikes intended to – as the President put it – “degrade, and ultimately destroy” a potent enemy force that controls a great deal of territory, qualify as war by any reasonable definition. Claims that large-scale air attacks don’t count as warfare were specious when the administration trotted them out in defense of its intervention in Libya in 2011; and they have not improved with age. You don’t have to be a constitutional law professor, like the president, to see that.

Steve Vladeck doesn’t want to lose sight of the forest for the trees:

[A]ll of this focus on the legal rationales for military force shouldn’t obfuscate or excuse our continuing lack of understanding of the threshold questions: What, exactly, is the threat that ISIL poses to the United States, and why is that threat sufficient to justify uses of force beyond conventional self-defense? We heard a little bit on this front in the President’s speech last night–but, at least in my view, not nearly enough. And so for all the oxygen that will be consumed in the coming days and weeks over the meaning and scope of the 2001 AUMF, we shouldn’t let that drown out these critical (and necessarily antecedent) questions.

And Yishai Schwartz spells out the trouble with the administration claiming that “it is the ideology that matters, not the organization”:

The problem with the President’s legal theory is not just that it guts congressional war powers, but that it also seriously hampers our ability to achieve any kind of victory. Ideologies are notoriously difficult to stamp out. They evolve and spread and can go underground. States cannot. And while the Islamic State is most definitely a terrorist group, it is also a state. It has territory under its control and centralized bureaucracy—all of which makes it more easily destroyed. As they draft and interpret their resolution, Congress, and the president, ought to remember that.

(Photo: By Spencer Platt/Getty Images)

Why Are We Going To War?

David Rothkopf suspects that, “what Obama began last night will be left to another president to finish”:

A strategy requires achievable goals and a plan to realize them. A good U.S. national security strategy also should be built around an outcome that enduringly advances national interests. This speech lacked several key components in both respects. It did not specify who was in the coalition that would help achieve our goals or what the division of labor would be among the participants. Most glaringly in this respect, it did not address the issue of who would be providing the critical “boots on the ground” component of the coalition, the ones our air power would support. There is no strategy without them. There is also no good strategy if, by default, they end up being bad guys who pose a different kind of threat – as would be the case if we end up being the air force for the Syrian regime in its battle with IS, or with Iranian troops, or with Iranian-led Iraqi troops (as has already been the case in Mosul and Amerli).

Christopher Dickey predicts ISIS will survive the onslaught:

The group originally known as al Qaeda in Mesopotamia, which evolved into ISIS and now Islamic State or the Caliphate, has proved especially resilient. During the American-led surge in Iraq in 2006 and 2007, the organization bore huge casualties. But detailed research into documents captured from the group shows it had a well-defined structure that enable it to survive despite enormous losses.

“It could not do much when it was in survival mode, but it did survive,” says Princeton Prof. Jacob Shapiro. “The implication for dealing with the Islamic State is that we should not expect it to be destroyed for a long time. Even if there is a successful coordinated effort against it, the group will likely remain capable of conducting terrorist acts in Iraq and Syria for the foreseeable future.”

Friedersdorf pinpoints the faulty logic in Obama’s speech:

[I]f America didn’t successfully eliminate violent extremists in Afghanistan or Iraq even with tens of thousands of boots on the ground, if extremists in those countries began to gain more power as soon as Americans left, if we didn’t manage to successfully train their armies even during a years long deployment of our best forces, why do we think that a foe Chuck Hagel characterizes as the most formidable we’ve seen in the War on Terror can be beat with airstrikes and a few hundred advisors? Or are they not as formidable as Team Obama has led us to believe? The White House may have an internally consistent logic that they’re not sharing. Evaluating it is difficult so long as they talk to us like we’re stupid.

But what if Obama’s goals are much more modest? Juan Cole asks, “What if he really does mean he has a Yemen-like situation in mind?”

What if Obama wants to prevent the fall of Baghdad, Erbil and even Riyadh? What if he is privately skeptical about Baghdad recovering Mosul any time soon? He has after all used drones in Waziristan in northwest Pakistan not to inflict military defeat but for tactical advantage. Iraq and Syria are the new Waziristan. ….

Don’t listen to his expansive four-stage program or his retooled, stage-managed John Wayne rhetoric. Look at his metaphors. He is telling those who have ears to hear that he is pulling a Yemen in Iraq and Syria. He knows very well what that implies. It is a sort of desultory, staccato containment from the air with a variety of grassroots and governmental forces joining in. Yemen is widely regarded as a failure, but perhaps it is only not a success. And perhaps that is all Obama can realistically hope for.

That is my one sliver of hope: that Obama knows this can only be a permanent mowing of a lawn, that he’s just trying to stop ISIS from further expansion, that what we eventually get will be minimalism. If so, this speaks to a much broader question: is it in any way prudent to declare a lofty, even unachievable, goal, when you have only a modest hope for getting there? It’s the expectations game all over again – and I would have thought this president would have figured out by now the costs of over-promising.

The Case For War: Your Thoughts

image001 (1)

Several readers respond to my initial reaction to Obama’s address. One simply sends the above image. Another writes:

You seem to touch upon but never explicitly articulate the inherent contradiction in the president’s ISIS strategy. On the one hand, the president appears to acknowledge that only Iraq’s Sunnis can defeat ISIS. While commendable, it’s frankly difficult to reach any other conclusion: not only was Iraq’s army absurdly ineffective in fighting ISIS, but 100,000 U.S. ground troops couldn’t defeat al-Qaeda in Iraq. Only the Sunnis could.

The president’s strategy however is tailor made to prevent another Sunni awakening. As demonstrated in Iraq and Syria, ISIS thrives in (and only in) environments where Sunnis perceive themselves to be under attack by hostile outsiders (the Alawites in Syria and Shi’a in Iraq). The president’s strategy is for the U.S. to serve as the air force for the the Kurdish and Shia Iraqi troops in hopes that this will help them retake the Sunni parts of Iraq. It was the Shia Iraqi government’s control over Sunni territory that facilitated ISIS’s reemergence in Iraq in the first place. Being bombed by the most capable military power in the world is also unlikely to persuade the Sunnis that they are not under attack by outside forces.

I fear our reader is correct. There is no real integration of the Sunnis into the Iraqi government – and no real guarantee that they ever will be. If the US is seen as an ally of the Iranians and the Iraqi Shiites, it will help ISIS, not hurt it. Another dissents:

Look, this is not a defense of Obama or of the wisdom of any policy he is pursuing here.  But everybody, including you, has to cut out the non-stop fiction that we are talking about a “war” here, much less a new, defining war decision.

Obama wasn’t asking for a war before and didn’t ask for a war tonight.  No one is asking for a draft, a tax increase, ground troops or anything remotely resembling what – for hundreds of years – would be a “war.”  That whole narrative framing is disingenuous, misleading, and hyperbolic.

Yes, Obama wants to expand air strikes against ISIS … and couple it with (no doubt futile) efforts to “fix” the broken Iraqi government.  Did anyone for a moment doubt that we were going to try expanded airstrikes against ISIS?  And, wake up – did anyone doubt that some military reaction would come when a group like ISIS threatened massive, untapped oil fields?  (Oh, is that rude to say? Please.)

I am not saying that there aren’t all sorts of good, valid questions … but the hysteria and ridiculous demands for some sort of specific strategy, “end-game” and plan to “destroy” ISIS?  C’mon.  Again, I think we can debate the wisdom of the entire U.S. “war on terror.”  But right now what I see are a bunch of journalists and bloggers who so egregiously fucked up the Iraq War under George W. Bush that they are now running around trying to overcompensate for past failures.  And it clouds the debate, not informs it.  Too many hyperventilating about a “war” include not only neocons, but also pundits desperate for some re-do of prior mistakes.

Zing! Look: the United States just announced it would begin airstrikes to back a ground campaign in Syria, a whole new theater of combat. It is only by the dangerous and corrupting process of the open-ended war on Islamist terrorism that we no longer think of that as a “war.” If another power started air-strikes on US soil, somehow, I think we’d think of it as a war. That this is now regarded as routine police work, which needs no Congressional authorization after 60 days, merely reveals the state of affairs we elected Obama to change. Another:

Try as I might, I just can’t see how you still maintain that this fight against the Islamic State is an inter-Islam fight.  I mean, check out this article, which I append only because it’s the most recent one I’ve read on the spread is IS. You’ve been gone, but articles like this have been coming out every day. IS has insinuated itself possibly as far as Egypt and Libya. And, of course, they made a grand attempt to exterminate the non-Islamic Yazidi last month, to say nothing of what they do to your fellow Christians.

These people are pure millenarians, Andrew, and they don’t give the slightest shit about the concept of “over here” and “over there”. I’m all for discussing the intelligence of an intervention, but we can’t have that discussion properly if we assume, from the outset, that they’re containable, or that anything we do would automatically make things worse by the very fact of our having done them.

And as for that singular success you mention, about the chemical weapons removal in Syria, two things: 1. That was a last-ditch success for the Obama administration; it was in no wise a success for anyone living in Syria because… 2. The direct consequence of that forced maneuver was to cripple the chances of the FSA in Syria and to cede the field of battle entirely to the Islamists. You can’t not have noticed this, but I don’t see you saying much about it. That “victory” came at a price that we’re still paying, and will go on paying for some time to come.

Try reading some of the Islamic State’s literature, like their irregular broadsheet Dabiq. It’s as clear as can be. The whole world will be brought face-to-face with Armageddon, not just moderate Muslims or the Shia. My view is: ignore this or laugh it off at your peril.  Welcome back, but don’t stretch the lessons of your break too far: the Islamic State is here, and it is spreading. If you don’t see that as a danger, then I think you need to take another look.

I would ask our reader to think of what our situation would be like if Assad’s WMDs were still at large – and within reach of ISIS. Then I’d favor intervention. But we avoided that true nightmare scenario only to enter into yet another one voluntarily. And the notion that the FSA was poised to win anything in Syria seems to me a fantasy. And another:

I hope you’re right about Obama’s true motives regarding our new intervention in Iraq.  I really wanted him to say that he was doing this reluctantly, that this is an exercise in containment, that this is an Iraqi fight and that our role would be absolutely minimal, that we’re doing this so that the Kurds – who seem to have their act together – don’t get overrun and so the rest of Iraq can get back to fighting amongst themselves rather than dealing with an unwanted invading force, that he was more interested in rebuilding America than waging Iraq War III.  I hope he has good reason to believe that ISIS in Iraq can be broken fairly easily and compelled to retire to Syria and that we won’t follow them there so that they become Assad and Putin’s problem rather than ours.

I suppose, however, that Obama had to act all commander-in-chiefy for a missile-happy American public and assure the people that we remain exceptional and tough.  Therefore, we can’t contain; we can only “destroy.”  With any luck, ISIS might roll back into Syria and a new story will arise to distract us so that Obama can scale this all back.  I hope that’s the game he’s playing with us.

One thing that has been overlooked in all this is the domestic politics in play: we’re two months away from a second-term mid-term election.  Obama’s popularity is as low as it’s ever been, dragged down it seems by the public’s sense that he is not a strong leader in foreign policy.  At the same time, a GOP wave has not yet fully formed; Senate races for Democratic-held seats in Alaska, Louisiana, Arkansas, Iowa, and North Carolina remain close.  Should Obama drop some bombs and ISIS ends up in retreat, the public could rally around the commander-in-chief, his poll numbers could rise, and some Republicans may even praise him for his foreign policy.  That might be enough to save the Senate for the Democrats.  It’s a gamble and a despicable way to play politics, but not out of the realm of possibility.

Last night’s speech also probably marks the demise of Rand Paul as a serious presidential contender.  The GOP will never embrace a non-interventionist, and if Paul morphs into an interventionist, his credibility as a man of principle (which is what his candidacy would be built around, and far more so in his case than others) is shot.  Count the votes his dad received in Iowa and New Hampshire in 2012; that’s how many Rand will receive in those states in 2016.  That other Paul – Paul Ryan – is the future of the Republican Party.

We’ll see, won’t we? If this feckless campaign does lead to the unintended consequences I fear, it could be one way for Paul to win the nomination. It’s a long way to 2016. Think of the changes between now and this time last year.

Will We Ally With Iran?

In his ISIS speech, the president stressed that the US would not enter a partnership with Bashar al-Assad to fight ISIS, but didn’t explicitly rule out working with Iran. Now the chairman of Iran’s Expediency Council, Hashemi Rafsanjani, says Tehran is ready to cooperate with the US. Obama might not be, but Murtaza Hussain suspects he won’t have much choice:

Thus far, U.S. hopes against ISIS have been pinned on the group’s most palatable enemies: The Iraqi Army, Kurdish Peshmerga, and more moderate Syrian rebels. While those groups have not been defeated, their position today is weaker than ever. As such, some cooperation with America’s ostensible enemies in the Iranian military will likely be necessary to any plan to defeat the Islamic State. Obama’s non-Iranian options look particularly bleak after [Tuesday’s] shocking assassination of one of Syria’s top anti-ISIS rebel commanders and dozens of his lieutenants. The commander, Hassan Abboud, was killed in an explosion during an underground meeting. So many members of his group, Ahrar al-Sham, were killed in the explosion that it’s now unclear whether it will continue to exist and provide a key counterweight to ISIS. Ahrar al-Sham was one of the best organized Syrian opposition factions aside from ISIS.

Brian Murphy believes that “Iran is likely to be drawn into any Western-led scenarios against the Islamic State militants and their networks.” One reason why:

The fight against the Islamic State must eventually cross the border to Syria, where the militants have important strongholds. Here’s where it gets really complicated. Obama had suggested that the ground game in Syria could be led by “moderate” rebels whose main goal – until now – has been trying to topple Syrian President Bashir al-Assad. Iran remains a critical ally of al-Assad. The West doesn’t want to deal directly with al-Assad to coordinate any strategies. But Iran could emerge as an intermediary.

Noah Smith argues that a reset with Iran would pay dividends both in the Middle East and in our dealings with Russia:

U.S. aerial firepower and Iranian troops could defeat ISIS, but more crucially, Iran is also in a position to stabilize the region. Assad is a monster, but if the U.S. and Iran were allied, he might be pressured into sharing power with the anti-ISIS rebels after ISIS goes down; as it is, our unrelenting commitment to get rid of Assad is assuring that Syria will remain in a state of anarchy, a vacuum that only an ISIS-type entity will ever fill. If anyone can pressure both Assad and the Iraqi Shiites into sharing power with local Sunnis, it’s an American-Iranian duo.

But there is another big, important reason for us to join with Iran: oil. The Iranian oil industry is currently restricted by U.S.-led sanctions that deprive it of Western technology and investment. With those sanctions removed, Iranian oil would begin to flow; if Iran helps stabilize Iraq, the effect will be multiplied. A flood of Iranian oil would give the U.S. the ability to level much heavier sanctions against Russia, and would ensure global oil supplies in the event that a broader conflict in Eastern Europe disrupts Russian oil supplies. In other words, becoming friendlier with Iran would strengthen our hand against the suddenly aggressive Russians.

 

Designs On Originality

Giselle Defares considers the divide between theft and inspiration in fashion:

Designers… pull from the world around them. Moschino took clear inspiration from Spongebob Square Pants and McDonald’s in its fall collection. And a new lawsuit was just filed against Roberto Cavalli by California street artists for the brand’s incorporation of their work. … But this landscape is quite different for small fashion houses and young designers, who struggle to brand themselves with distinctive designs before they are copied. Intellectual property laws generally do not protect utilitarian items like clothing, although some original prints, patterns, colors and unique combinations can be protected by copyright.