Much of the constitutional struggle that engulfed the English-speaking world in the seventeenth century revolved around two fairly simple phrases. One was “no man is above the law,” and the other “the king can do no wrong.” Each of these expressions reflected a fundamentally different notion of the rule of law, and they could not be reconciled.
Post-Restoration Britain found a series of legal fictions to address the problem of misconduct by the state, but in concept this often turned on the notion that the king commanded compliance with the law so that unlawful conduct could not be the king’s.
In America today, the mentality of courtiers has reappeared, and many of them seem bent on reassembling the fragments of that old crown that our ancestors brushed from the head of a Hanoverian usurper. They’re offering that crown up to a new King George. And the new attorney general, barely three months on the job, is installing himself not as a law officer to a republic but as a lackey bent on undoing not one revolution, but three.
What were those legal principles that allowed the Justice Department to find that torture was not torture, and that torture was therefore lawful? When we pull back the curtains, and shine a bright light, we find it rested on the same royal prerogative that Charles Stuart maintained all the way up the steps to the scaffold.
Intelligent Design? The Unending Saga of Intelligence Reform
Topic: Politics and Law
10:13 pm EST, Feb 26, 2008
Paul Pillar has written an important article in the latest issue of Foreign Affairs:
Two new books on intelligence reform -- Tim Weiner's Legacy of Ashes and Amy Zegart's Spying Blind -- distort the historical record. A third, by Richard Betts, rightly observes that no matter how good the spies, failures are inevitable.
I haven't read these books (yet), but it's notable that Pillar is absolutely lambasting a National Book Awardwinner:
Tim Weiner's Legacy of Ashes won the 2007 National Book Award for nonfiction -- but probably would have been a better candidate in the category of fiction.
Legacy of Ashes is not a history of the CIA, much less the history that the subtitle promises. It is largely a collection of tales of derring-do, deceit, and defeat. This highly tendentious book should be viewed the same way as a good novel: a lively read not to be trusted as history.
Based on Pillar's review, I think the new book by Betts is consistent with Timothy Naftali's book, Blind Spot: The Secret History of American Counterterrorism, which I reviewed in 2005. In a conclusion consistent with Pillar's observation now, I wrote:
Naftali seems resigned to the reality of future attacks, and he is definitely skeptical of any quick fix or silver bullet.
Russia is far more volatile than anyone now wants to believe. We do ourselves no favor by generously pretending that Russia is going to hold some type of "flawed" vote, when the real election will be determined by the scorecard of the clan wars.
The pliant justice system in Russia is being incorporated into inter-clan warfare.
If the West should have one hope, it is that Russia's next president, Dmitri Medvedev, will call a truce among the warring Kremlin factions, reinstitute judicial independence and bring his country back from the brink at which it now perilously totters.
From the archive:
Russia appears to be a nation off of its crutches and seeking to define its place in the world. Yet Russia has singularly failed to make others see clearly what it wants, or see the world as it does—revealing a dangerous flaw in its foreign policy implementation.
A closer look at Russian foreign policy reveals a lack of strategic priorities and a Russia alone and adrift.
Today's global liberal democratic order faces two challenges. The first is radical Islam -- and it is the lesser of the two challenges. The second, and more significant, challenge emanates from the rise of nondemocratic great powers: the West's old Cold War rivals China and Russia, now operating under authoritarian capitalist, rather than communist, regimes.
The southern port city of Basra has been, in effect, on its own since September, when British forces here moved to the outskirts, yielding authority to local leaders. British and American officials say Basra’s experiment in self-rule could serve as a model for Iraq’s future, but if so — many locals and outside advisers say — that future remains dark.
... a deeply troubled city: disappearances are common, political parties have militias of "hired mercenaries", political murders are executed by the "police", women are frequent subjects of targeted killings, and more.
What makes the situation in Basra so alarming is that it is a test of Iraqi rule under relatively optimal conditions.
From the recent archive:
"The connection between the softball and the parties and the corruption and the beatings was greatly intertwined."
It has been three years since the intelligence community was reorganized with passage of the Intelligence Reform and Terrorism Prevention Act in December 2004, and the results are not encouraging.
The DNI has become what intelligence professionals feared it would: an unnecessary bureaucratic contraption with an amazingly large staff.
Has this bureaucratic superstructure enhanced our intelligence capabilities?
This op-ed must be taken for what it is, but it's interesting to see this view getting ink.
"Their confidence was restored by his confidence. When he smiled on the crisis, it seemed to vanish."
Would we call this a cult of personality?
"Today, attacks on the cult of personality seem really to mean attacks on the ability to make speeches that inspire. But you only have to look at crucial moments in the history of our time to see how crucial it was to have a leader who could inspire, who could rally a nation to a standard, who could infuse a country with confidence, to remind people of the justice of a cause."
From the archive:
I've come to the conclusion that you actually want shifty, dishonest politicians elected by an apathetic populace. This means that things are working.
There are two reasons that people act: Carrots and Sticks. Lowering the barrier to entry might be a carrot, but the sticks are much more effective and come when the political situation makes it impossible for people to go about their lives without acting.
I'm confident that technology has improved the resources available to people if/when they choose to act. So far they don't need to, largely. Don't wish for times when they do. When people are involved and committed and political leaders are honest and have clear vision; that usually happens when things are really, really fucked up. Who are the U.S. Presidents we most admire? What was going on during their presidencies?
This is a little bit inside baseball, but of interest to those who've followedtheOLCsaga.
Of the core group of hearty Neocons, one remains on the job. He is Don Rumsfeld’s lawyer, William J. Haynes II, the DOD’s general counsel. Haynes had his escape plan carefully charted. The president nominated him to be a judge on the Fourth Circuit Court of Appeals. He expected to have his nomination confirmed, and depart for the bench.
However, something got in the way of his plans.
Viewed in perspective, Haynes’s long campaign can be divided into a significant number of skirmishes. He’s lost all of them, and he just keeps getting more bitter. Just looking back over the last year, there have been four high-profile skirmishes, not counting the innumerable battles behind the scenes in the bureaucratic folds of the Pentagon.
... This would be comical if it weren’t also tragic. But it tells us a lot about the current political dynamic surrounding the Neocons in the Bush Administration and how they band together to fight their rear-guard battles.
... The Neocons have burrowed into a handful of powerful redoubts and they maintain close contact with and support one another. Their bastion was once the Defense Department, but they have been pushed to the margins by Secretary Gates. But OLC and Dick Cheney’s office remain their last strongholds. Interesting how they work in tight connection to fend off attacks and mete out retribution against the enemy. And interesting that they consider competent, totally apolitical professional soldiers who refuse to be intimidated and cajoled as the “enemy.”
The Idea of a Party System: The Rise of Legitimate Opposition in the United States
Topic: Politics and Law
9:33 pm EST, Feb 5, 2008
A Super Tuesday excerpt for you:
While most of the Fathers did assume that partisan oppositions would form from time to time, they did not expect that valuable permanent structures would arise from them ...
The Fathers hoped to create not a system of party government under a constitution but rather a constitutional government that would check and control parties.
... Although Federalists and Anti-Federalists differed over many things, they do not seem to have differed over the proposition that an effective constitution is one that successfully counteracts the work of parties.
