Managing the Message: Terrorist Surveillance Program

The resurfacing of this oldie-but-goodie on the front pages today makes it seem like the perfect time to deconstruct the history of this term a bit. But as a brief aside, I would encourage everyone to go and read Prof. Jack Balkin's post today on his blog regarding the Administration's proclivity to grab as much power as they can and hold it until the can't hold on any longer, at which point they abruptly change direction and expect us to all get amnesia about their prior arguments on the given subject. He does a much better job of articulating the problems with this approach than I ever could.

And now back to the TSP. What's so interesting about this piece of Administration rhetoric is that unlike the death tax, for example, we can see exactly how the term was ginned-up. This is because the term TSP emerged as the moniker for a previously unknown intelligence program, which almost axiomatically, had no real name prior to its public disclosure (NYT subscription required) by the New York Times. This story first broke on December 16th, 2005 and it took over a month, until January 23, 2006, for the Administration to roll out the now-ubiquitous TSP as the description of choice for this once-secret program.

What I find so interesting about this example of Managing the Message is that in this case, it's not so much about misleading anyone as it is about accenting certain elements over others. Critics of the warrantless wiretapping program / TSP were particularly bothered by the fact that this wiretapping was being done without a warrant and without court supervision, in violation it now seems, of the spirit if not also the letter of FISA, the Foreign Intelligence Surveillance Act. While "warrantless wiretapping program" is a faithful description the activity which was taking place, it unquestionably puts an emphasis on the legal issues and ramifications associated with the program and is less descriptive of the purpose or intended targets of the program.

Conversely, the Administration thorough the use of the term TSP to describe these activities clearly wanted to shift the focus away from the legalities and towards the intended targets, and implicitly, their justification for creating the program. TSP is also, at least partially, faithful to the factual underpinning of the program, in the sense that the stated intent is to use this surveillance as a tool to disrupt terrorist plots.

Where this analysis starts to break down a bit, not surprisingly, is where the legal issues collide with the program's stated purpose. Unfortunately, the principal objection to this program concerns whether the lack of oversight is leading to non-terrorist Americans being eavesdropped upon with any sort of Court oversight. It's on this dimension where I think the TSP rhetoric becomes somewhat more disingenuous, as it attempts to imply that only terrorists are being surveilled. That may or may not be the case, and it's that general uncertainty which led to the enactment of statutes like FISA in the first place.

Perhaps it's even too obvious to discuss at this point, but the Administration's goal in branding this program the TSP was as much to put the focus on terrorism and all that they are doing to prevent it as it was to deflect attention from the dubious legalities, two things which the word "warrantless" doesn't accomplish. And to a large degree, I think the Administration was successful is shifting the terms of the debate. My gut tells me that the early polling probably indicated that the warrantless nature of the program was concerning to Americans and that the rebranding to the TSP was likely in response.

I found this analysis by a pollster who maintains the blog Mystery Pollster as a forum for him to comment on the "inside baseball" of political polling. This entry summarizes a no-longer-free Gallup write-up which, at the time of its writing (late Feb. 2006, well after the introduction of TSP but he Administration), showed an pretty even split on the issue. What I don't know is when the underlying polling data was generated. I think it would be very interesting to track the change in public opinion as the the moniker TSP was introduced. The post goes on to talk about how the framing of the questions can have a massive impact, much along the lines we've been discussing here. Interesting point of view regardles....

Managing the Message: We Showed You Ours, Now You Show Us Yours

Cassandra inspired me to provide the next installment in this series after I read her fantastic introduction to why language matters so much in politics.

The latest thing we're hearing out of the Administration is that opponents to the Administration's eminent troop increase slated for Iraq should come forward and lay their plans on the table. This clip from the Daily Show last night (my primary source for all things politics, incidentally) while long and at times not entirely on point (though quite funny nonetheless) combines a nice montage of Administration officials exhorting Members of Congress and others to "bring forth yer Plans". Then, again much more succinctly and humorously than I can do so here, John Stewart politely reminds them of the many other plans (The ISG Report and the Levin-Reed Amendment specifically) which the Administration has rejected out of hand.

But this is about Managing the Message, and in this instance, I think the Administration is trying to paint the picture that they have studied all options and have done all of the heavy lifting and that this troop increase is the only viable alternative which is left after months and months of studying the problem. In fact, I'd argue that the rhetoric we are currently hearing provides an interesting explanation for why the President waited so long after the elections to announce his plan.

It now seems that he wanted to give the exercise of determining the "New Way Forward" a sense of exhaustiveness that only comes from multiple months of careful study, without official public comments. It also probably explains why the actual plan was so relentlessly leaked by an Administration which usually has a very tight lid on the whole leaking thing. They needed to test the waters a little bit without destroying the appearance of "heavy consultation" with the generals and such. Now that the plan is out there, they're happy to pretend as if there are no other alternatives, and that they are the only ones trying to LEAD in this uncomfortable situation, rather than take pot-shots from the outside, like they implicitly accuse Congress of doing currently.

Managing the Message: Why Bother?

I must have started this entry about a dozen times because there were so many angles I wanted to explore before realizing that one of the joys of blogging is that since most likely no one besides my immediate family is reading this, I can ramble on as I choose, at least until Epicurus makes fun of me.That tells you something about this entire topic. I'm writing plainly because I have no expectation of an audience. Most politicians do, and the most successful of them have learned that a) there is always an audience, and b) there is always a message to send.

I've been fascinated by the use of language in political debate for a long time. Perhaps the most specific instance I can think of is when I worked briefly with a group discussing strategies to implement the Personal Responsibility and Work Opportunity Reconciliation Act of 1996. Each word promised no more and no less than the Act's drafters intended it. What it meant to the rest of the country was "welfare reform." (All kinds of fun slogans came too, including the perky 'a hand up, not a hand out'). What it meant for me and other low-level government folks was we didn't work for an employment and training agency anymore but instead a "workforce development" agency. Hmm. Reminded me of a joke a professor in college told about St. Petersburg/Petrograd/Leningrad/St. Petersburg, which, told with more flair and a Russian accent amounted to the "more things change, the more they stay the same."

This section was kicked off by an interview I heard on NPR with Frank Luntz, political consultant and message strategist extraordinaire. Luntz is perhaps most famous for replacing "estate tax" with "death tax" in the popular debate, and in this interview defends it on the grounds that he was clarifying - and not directing - debate. Now, I admire Luntz as a consummate artist with words. This switch of phrase has to go down as one of the most successful in modern political history. As Luntz himself says, it's all about associations: "estate" conjured up visions of the wealthy; "death," well, that conjures up visions of us all paying our pennies across the River. Millions of voters, who would never have to pay the tax, became convinced that this was a means of exploitation by the government of their hard work to leave something to their children. And now we know what happened to Kansas.

I've no desire to rail for or against the tax here; instead the Chorus wants to focus attention on the words our politicians use to explain themselves, their policies, and as so aptly noted by Epicurus here already, their mistakes.

Look at "surge" versus "escalation." I'm a little surprised it took the Democrats so long to get around to creating an answer (someday I'd like to see the Democrats present a message, rather than run away from one, but the rant on how "liberal" became a dirty word has to wait till I've had more coffee).

Plenty of folks have already noted "escalation" in the context of the Vietnam War, a parallel the Administration must have seen coming (in rhetoric if not reality - how will they define success in Iraq? If folks can think of Iraq without thinking of Vietnam). I'm a little surprised at the choice of surge. To me, surge implies a destructive force (a storm surge say), and I would have thought that the last parallel a post-Katrina administration would want. Grant you, surges recede, and at this point, I can't think of anything better (I invite folks to send their favorite alternatives) that doesn't trap them into a one-shot deployment of more troops.

(Out of curiosity I looked up "surge" in the online Merriam-Webster thesaurus: noun, example "a moving ridge on the surface of the water." Illustration? " A huge surge nearly capsized the boat and drenched the hapless fishermen." Perhaps the Administration can take heart - the word "nearly" has an awful lot of play in it.)

Look at the "war on terror." Lots of people have noted that this is a great phrase to choose if you want to a) imply a need for constant military readiness or engagement, b) do not want to confine yourself to one specific enemy, since you can't fight an emotion anyway, c) want to invoke patriotism and executive war powers, and d) want to create an us vs. them mentality wherever it would be convenient - between parties, between voting blocs or between countries. Masterfully done. And there's no danger of failure. How can you win or lose a war on terror? The "Axis of Evil" by contrast presents nothing but specifics: we know what an axis does - serves as the central point for moving bodies; we knew who was in it (a very funny Saturday Night Live sketch captures the point better than I); we knew what it was doing - bad things, say, funding terrorists and nuclear weapons. You'll notice that we don't use that anymore, and I'm convinced it's not because the Administration thinks there is no Axis of Evil.

The point is not to look only at what politicians say, but what they don't say, what they stop saying and what we want them to say. Whether it's global warming or climate change, the fact remains the weather is doing funky things, but the phrases themselves carry explanations as to why and ideas on what humans can do. It's worth it when the stakes are high to find the words that work.

Who Forgot to Call the Iraqis?

I think one of the most under-reported facets of President Bush's "New Way Forward" in Iraq is how little the Iraqis seem to like it. What we did hear, in a pretty full-throated form, is questioning of Sec.of State Rice and Sec. of Defense Gates by members of Congress as to exactly why this time the Iraqis would actually make good on their commitments regarding troop strength and their non-interference with respect to entering and clearing Shiite areas like Sadr City. As one American military official put it, as quoted in this New York Times article in today's edition, "We are implementing a strategy to embolden a government that is actually part of the problem. We are being played like a pawn."

To me, that statement says it all. There have been many suggestions (here and here, to offer just a few) that the Administration is engaging in a delicate act. To the American people, they are portraying the new plan as essentially an Iraqi creation which we modified a bit to suit or strategic objectives. Nevertheless, the above reports contend (and common sense would imply as well) what the Shiite-controlled government really suggested was they we get out of Baghdad and allow them to clean up the violence as they see fit (read: with a distinct lack of sectarian sensitivity, to put it mildly).

I think the almost guaranteed non-cooperation of the Shiite-led Iraqi government, due to fundamental differences in how to "handle" the violence in Baghdad and elsewhere, is the key factor which virtually guarantees that we will be disappointed with the 'New Way Forward"

Managing the Message: The President's Address on the New Course in Iraq

President Bush's address to the nation is already being picked apart by nearly everyone, and while I don't think there's much I can add, I thought there were a couple of interesting things about which I haven't heard much discussion of as of yet.

First, I'm not really sure exactly why everyone is so keyed on hearing an apology from the President regarding his handling of the war thus far. I guess it's rooted in the notion that it's difficult to except that he has really evaluated our strategy in Iraq from the ground up unless we hear some concrete acknowledgement that what we have done thus far has encompassed some strategic and tactical missteps. As profoundly as I have disagreed with both the underlying precepts which frame the Iraq conflict and many of the decisions which have been made in furtherance of those precepts, I'm not really sure I expect the President to take a self critical tone on national television every time I disagree with him.

That being said, this is about Managing the Message, an with that in mind, I think the President did an excellent job of providing that apology without apologizing at all. Frankly, I think this particular bit of message management is more important to the President personally than to the public or the media, because he's proven himself almost pathologically incapable of admitting mistakes. This is the passage that most of the press reports I've seen have chosen to designate as the apology:

"The situation in Iraq is unacceptable to the American people and it is unacceptable to me. Our troops in Iraq have fought bravely. They have done everything we have asked them to do. Where mistakes have been made, the responsibility rests with me."

Now if anyone else had uttered this, I'm not sure I'd be writing about it. And while I'm not sure how useful a pop psychology analysis of the President is, it strikes me that this is not an apology at all. All President Bush said is that mistakes have been made and if they were made, he is responsible because he's the guy at the top. It gives him plenty of room to come back to the people (and to himself) and say that he might be worthy of the blame but that it wasn't his fault, only his responsibility.

If you give your teenager the keys to the car, and he goes out, gets drunk, and wraps the car around a tree, you might not be to blame, but in many ways, you're certainly responsible. What's more, beyond that distinction, I think it's truly a stretch to characterize this passage as an apology. I think Bush thinks the blame may rest elsewhere (the Iraqi people, the insurgents, the Iranians, the lack of resolve on the part of the American people, al-Maliki), and that his strategy would have worked but for these factors, but nevertheless, because he is the Commander in Chief, he holds the responsibility. I'm not sure that Managing the Message in this instance matters all that much to anyone but Bush himself.

My other point is just a nit-pick. Normally Bush ends his speeches with "and may God bless the United States of America." While I could write all day about how I think this is inappropriate, that is well trodden ground. What's interesting is that this time, he closed by saying "We go forward with trust that the Author of Liberty will guide us through these trying times. Thank you and good night." I'm not sure why he went for the veiled reference to God this time around, but I do think it's another interesting example in an enduring pattern of this Administration using language which is specifically rooted in the Scriptures and which many non-Christian American might not instantly recognize or take offense towards.

Managing The Message: A Series

Here at Greek Chorus, we're pretty fascinated by the use of language in politics. Both the Dems. and the GOP spent lots of time, and pay armies of consultants to make sure that the message they are transmitting is best packaged to achieve the desired results with respect to public opinion.

As such, we're starting a thread which we're calling "Managing the Message" which highlights some of the examples which we see crop up. To be sure, we'll probably end up re-hasing some things which have been written about extensively, but hopefully will dig up some other, more off-beat stuff as well. Below is a running list of links for the series:

• Why Bother
• Bush's Address on the New Course in Iraq
• We Showed You Ours, Now You Show Us Yours
• Terrorist Surveillance Program
• All Things Must Now Be Secured
• The Epicurus 6 Step Program For Policy Denial

Smackdown Justice Scalia Style

Much has been written about Justice Clarence Thomas, his jurisprudence, and his proclivity to vote with Justice Scalia an overwhelming majority of the time. I don't want to rehash that here, nor do I feel qualified to give an informed interpretation of his skill as a legal opinion writer.

That being said, after reading this majority opinion, just handed down today in the case of Medimmune, Inc. v. Genentech, Inc. et al. I was shocked at how ruthless Scalia was in criticising Justice Thomas' solo dissent in the case.

A brutal simplification would characterize the case as being about whether a patent licensee can challenge the validity of a patent without first breaching the license, by refusing to pay the agreed upon royalites. The licensor argued that to allow such a challenge would violate the Constitution's Article III "Cases and Controversies" clause. The majority opinion, signed by all eight justices, save Justice Thomas, found in favor of the licensee.

While the specific case is interesting and has potentially far reaching consequences in the area of patent law, what I found ingtriguing was how scathing Scalia was in refuting many of the contentions made in Thomas' opinion. As if often the case, much of the intramural battling was done in the footnotes. While there are many examples, here are some of the best (emphasis is mine, except where noted). I've broken them into two categories:

Indelicate Disagreement

- pg 3 of the majority opinion, note 2 - "The dissent contends that the question on which we granted certiorari does not reach the contract claim. Post, at 5 (opinion of THOMAS, J.). We think otherwise. The question specifically refers to the "license agreement" and to the contention that the patent is "not infringed."Pet. for Cert. (i). The unmistakable meaning is that royalties are not owing under the contract. "

- pg 8, note 7 - "Coffman v. Breeze Corps., 323 U. S. 316, 323–324 (1945), cited post, at 3, does not support the dissent’s view (which is why none of the parties cited it). "

- pg. 11, note 9 - "The dissent claims the cited cases do not "rely on the coercion inherent in making contractual payments." Post, at 9, n. 3. That is true; they relied on (to put the matter as the dissent puts it) the coercion inherent in complying with other claimed contractual obligations. The dissent fails to explain why a contractual obligation of payment is magically different. It obviously is not. In our view, of course, the relevant coercion is not compliance with the claimed contractual obligation, but rather the consequences of failure to do so."

Accusations of Outright Disingenuousness

- pg 4, note 4 - "The dissent observes that the District Court assumed that Synagis was "‘covered by the patents at issue.’ " Post, at 5 (quoting App. 349– 350). But the quoted statement is taken from the District Court’s separate opinion granting summary judgment on petitioner’s antitrust claims [emphasis in original]...This tell us nothing, however, about petititoner's contract claim or the District Count's later juristictional holding with respect to it."

- pg 6, note 6 - "The dissent asserts that petitioner did not allege a contract claim in its opening brief or at oral argument. Post, at 5. This is demonstrably false."

- pg 12, note 10 - "The dissent incorrectly asserts that Altvater required actual infringement, quoting wildly out of context (and twice, for emphasis) Altvater’s statement that " ‘[t]o hold a patent valid if it is not infringed is to decide a hypothetical case.’...As the full quotation makes clear, the snippet quoted by the dissent has nothing to do with whether infringement must be actual or merely threatened. Indeed, it makes clear that in appropriate cases to hold a noninfringed patent valid is not to decide a hypothetical case. "

I'll again leave it to the legal scholars to determine whether Scalia was being unfair in his criticism, though I will say as to the examples I classified as "Accusations of Outright Disingenuousness" even a layperson can safely say that Thomas was playing a little fast and loose with the facts.

It may also be that Scalia is always this harsh in the opinions he writes and I just haven't noticed. Nevertheless, it seems to me that while Scalia is often quite liberal with the sanctimonious rhetorical flourishes in an attempt to make the opposition seem silly or stupid, it is less obvious to me that he often accuses them of misconstruing the facts.

Is it Getting Warm in Here?

Over the holiday news break a rather interesting twist in the discussion over global warming occurred. The US Environmental Protection Agency is investigating the listing of polar bears as a threatened species under the Endangered Species Act. Why? Because the polar bears natural habitat - frozen tundra of the Arctic Circle is steadily eroding.

Normally the potential listing of a species is not newsworthy. But the polar bears present an interesting quandry for the Bush Administration.

For years it has been Bush administration policy that while there is data to suggest that the ice caps are slowly eroding and each year the frozen tundra polar bears and other native Arctic species depend upon forms later and melts earlier each year, there is no conclusive evidence to demonstrate that the global climate is changing. Even if such evidence is suggested, the administration maintains that there is no demonstration that human activities have had anything to do with the changes. Even if human activities have had anything to do with the changes, there is nothing the US can do about it without crippling the economy. Even if there is something the US could do about it, well, so the line goes, why should we? Other countries produce greenhouse gases as a result of their business activities.

Here's the twist: if polar bears are considered threatened or endangered, then the federal government has a duty to refrain from any action that might threaten or endanger the species and its critical habitat. That's not to say listing polar bears would mean the end of any Arctic exploration, or even Arctic oil drilling for instance. Only that any such activity would have to be examined so it could take place in the least harmful way to the bears or their habitat.

What I found entertaining - when I'm not horrified - is this Fox News story. John Gibson writes, "Turns out the polar bear is being used by environmental groups to force the Bush administration to cave on global warming."

To which I say, well, duh...of course that's what environmentalists are trying to do.

Why shouldn't the consequences of climate change have a face? I mean, the Bush Administration hasn't put a face on anything except the oil industry. Time to let the other guys force their way to the bargaining table.

Gibson claims that this will ultimately lead to a halt of all human activity - logging, fishing, etc. - that might in some way harm a cute little critter. Now, the Endangered Species Act hasn't eliminated logging or fishing at all in the thirty years it has been in existence (two years I drove behind logging trucks along the Carolina coast through areas designated as "wildlife preserves").

What it is designed for is forcing precisely kind of long-term policy evaluations that Bush's EPA has refused to engage in. If the Bush Administration had at least opened the door to the many groups concerned not about polar bears but about how to balance economic expansion with environmental stewardship, there would be no need to pursue, let's see... a statutory remedy created by Congress specifically to allow citizens to petition the EPA to address environmental concerns. I suppose if the Sierra Club had a K-street brunch with the chairmen of the Energy and Natural Resources Committee that would be a much more acceptable form of persuasion.

The issue of how to balance demands for our natural resources, production of energy, and the protection of our environment is one that is demands more than doomsday pronouncements from any side. The natural world is changing, and the US has the technological and financial resources to take a closer look at why - so that we don't have to choose between preserving our environment and building our future.

How quickly things change

So I stumbled across this news conference (real Player required) by House Republicans (none of the leadership, by the way) where they stand in a big group and announce their Minority Bill of Rights.....OK, I'm pausing for laughter now.

But seriously, they say they've lifted the language for this Bill of Rights from what was proposed by Speaker-elect Nancy Pelosi at the beginning of the 109th Congress. Furthermore, it seems like their major gripe is this "first 100 hours plan" proposed by the Democratic majority, which will be moved to the floor and voted on without the ability for the minority to amend it. From what I've read, after the first 100 hours, the Dems are going to allow more amendment opportunities than the GOP allowed when they were in the Majority.

I expect the minority to essentially debate via press conference, because by virtue of the system we have, the minority just has much less power to control the debate inside the chamber. Furthermore, I expect the minority to take every opportunity to try and paint the majority in a negative light and to expose what they see as hypocrisy. But in this case, I actually think it goes even further.

I think most objective observers would agree that the GOP-led House saw marked increases in the control which was wielded by the majority. Some members, specifically former Majority Leader Tom DeLay were even openly unapologetic about running the House with an iron fist and strictly enforcing both party loyalty and unilateral control of the Floor and the overall legislative process.

What I found so interesting in listening to this press conference was that their argument was essentially, though not so plainly stated - "We never promised an open, fair process for the minority and we never provided one. They had asked in the past for an open and fair process and have promised one on a going-forward basis, and given the 100 hours plan, they are not starting off the Congress by meeting their pledge. Therefore, we expect you the American people to be more angered by the 100 hours of departure from their promise than our 12 years of iron-fisted rule."

Sure enough, the first question out of the box from a reporter at the news conference was if any of the GOP participants had co-sponsored Pelosi's Bill of Rights in 2004. The response was essentially, "No, but the people have spoken in the last election, and this is a new day, and we should listen to them and run things more openly." Gag....

I guess you can't argue with this logic, with the tiny exception that they spent all of September and October tell us about how our country would go to hell in a hand basket if we voted for the Dems.

The second, and much funnier, justification, given by Rep. Patrick McHenry, was that Pelosi never had her Bill of Rights drafted into legislative language. His implication was that had she done this, rather than just releasing it as essentially a press release, it might have garnered more support.....OK, I'm pausing for some more laughter.

Having It Our Way

While American policy is highlighting the divided opinions, it's not going to be the last time national hypocrisy is found. The situation in Darfur was referred to the ICC by the Security Council - one of the ways the ICC gets jurisdiction - and its clear, that just as in with the International Court of Justice, the Security Council's permanent members can shortcut the development of a consistent and authoritative international criminal law jurisprudence by picking and choosing what matters get addressed in an actual judicial proceeding.

Now, I firmly believe that the US is in violation of international law in its treatment of the detainees at Guantanamo, and that regardless of what the Administration might think, the Geneva Conventions are not merely suggestions as to how to conduct wars but a statement by the world community that certain rights are fundamentally important. But there are real problems to developing a workable system of international criminal law, and the US is highlighting the right problems for the wrong reasons: can we ever really expect states to set aside political and military options/activities for the judgment of the international community?

There is a long tradition of "do as I say, not as I do" in the international criminal law arena. Most of the criminal law the ICC has jurisdiction over is pretty well settled law: genocide, crimes against humanity, etc. But it's a pretty comprehensive list when you look at the type of military activities that might fall into those categories. The collateral damage provisions in Article 8 are pretty broad, and it's at least debatable as to whether the law on personal responsibility is settled enough that anyone should really have comfort that if their government winds up on the losing side of international opinion they won't be exposed to liability. The Rome Conference never came to consensus on the crime of aggression, and simply shelved the issue for a later date; there's still no definition in there.

The Security Council, which admittedly is not a judicial body but for practical purposes winds up being the only body which has an opportunity to address what might be criminal issues, has of course only selectively addressed state practices. I realize the ICC is focused on individual criminal responsibility, but unless there is ever going to be consensus on state practice, there is unlikely to be consensus on individual responsibility outside of specific problems that all Security Council members can agree on. I think what is changing is the international community's tolerance for balancing the need for American participation and leadership (money and troops) in UN efforts with the desire for what could be seen as the last bulwark against American unilateralism: developing a strong international legal regime to force the US to think twice about acting alone.

It seems almost impossible to expect states to ever take politics out of the equation when creating international law. I don't blame the Administration for being concerned its activities in Iraq could potentially expose it to liability but I think that we'd find most states who could have the same fingers pointed at their activities, even if they signed onto the statute, might have some new qualms. The state prosecution option is both the statute's saving grace, without which it would never have been signed, and the one thing that may ultimately shortcut any longterm credibility of the Court.

I Guess We Can Have It Both Ways

We'll, we're back after an extended holiday hiatus. Hopefully Cassandra and Hector will be more able to contribute, as to a certain extent, some of their time constraints have receded.

Today, I was struck by this AP article, which describes our shifting attitude towards the International Criminal Court, or ICC. The ICC is essentially an international judicial body, created under the auspices of the UN, which claims universal jurisdiction over the crimes of genocide, crimes against humanity, and the like. The thought in its creation was essentially to provide a venue to bring people to justice who otherwise would go free due to either an inability or unwillingness on the part of a particular State's judicial system to prosecute them.

The US has largely resisted the jurisdictional claims of the ICC and had even gone so far as to impose sanctions on other States who refused to sign bilateral agreements with the US pledging not to serve up Americans on their soil for prosecution by the ICC should they be indicted. The Administration's concern (which I share, incidentally) is that the ICC could be used maliciously as a way to mount politically motivated prosecutions of Americans.

What I found so interesting was the Administration's apparent new willingness to endorse the ICC when it is going after people which they dislike, while simultaneously bad-mouthing it as it pertains to Americans. They have voiced their approval of using the ICC to prosecute officials in Sudan as well as members of the Lord's Resistance Army in Uganda.

I don't expect complete policy consistency on the part of any government, as the world is just too complex and too nuanced to expect as much. Nevertheless, I think in a time where aspects of America's moral legitimacy are being loudly, and to some extent, responsibly criticized, it seems we are only adding to our troubles by explicitly holding ourselves to a lower standard.

Of course, that's not how it's spun by the Administration. They contend that we have a robust judicial system is place which is able to prosecute any offenses committed on the part of Americans. Unfortunately, if the recently passed Military Commissions Act is any indicator, I think their principal aim may be to provide cover for Americans thereby making our protestations with respect to the ICC somewhat suspect in their ingenuousness.

UPDATE: Congress Under-worked?

OK.... My suggestion in a previous post that Sen. Durbin was being partisan in his criticism of the 109th Congress' work schedule is completely overshadowed by this remark from Rep. Jack Kingston (R-Ga.).

In a Washington Post article regarding the new Democratic majority's plan to work many more days in the upcoming Congress, Rep. Kingston opines that, "Keeping us here eats away at families. Marriages suffer. The Democrats could care less about families -- that's what this says." I think I'll leave it to you to assess the relative absurdity of that statement.

UPDATE: Issues Misalignment Across the Parties

An interesting opinion piece in The New Republic by Brink Lindsey, the VP of Research at the Cato Institute, explores much more deeply the possibility of a Liberal-Libertarian union by proposing many policy positions which they could jointly take which would likely be palatable to all involved.

Lindsey doesn't mince words, lambasting the ex-Conservative majority as having "risen to power only to become squalid and corrupt, a Nixonian mélange of pandering to populist prejudices and distributing patronage to well-off cronies and Red Team constituencies." Ouch....

He does little to address the populist side of the political spectrum which would remain after a Liberal - Libertarian union, which is too bad, because as I explained a few days back, I think the Populist - Traditionalist folks would rule the roost after the realignment. Nevertheless, it's interesting to see some specifics about how the Left and the Libertarians might move close together.

Congress Under-worked?

One of the complaints you often hear tossed around about Congress recently is that they never work. More specifically, Sen. Dick Durbin was on the Senate floor today railing on the outgoing Republican majority for, amongst other things, having scheduled only 100 days in session this year. He contends that this is like working a part time job and is indicative of the way the GOP runs things.

While I'm not sad to see Frist and Co. go, I think it's pretty laughable to argue that Congressmen and Senators work part time jobs. In session or not, being in Congress is a grueling job and one which is vastly under-compensated when compared to the time commitments and responsibilities associated with comparable roles in the private sector.

These public servants are expected to fly back to their districts/states nearly every weekend to meet with their constituents. How would you like to have to go to a parade or a breakfast or who know what else every Thanksgiving, 4th of July, Memorial Day, Labor day....you get the idea. I suspect that even free dinners with lobbyists, contributors, and whoever else wants a hour or two of your time gets old after a few months with 3-5 of these meals a week.

To be sure, there are Congressmen and Senators who do not take their job seriously, but I think they are the exception rather than the rule. They certainly don't all make intelligent decisions all the time, but to imply that their jobs are easy or that they are overpaid seems to be to be either a political swipe (in Sen. Durbin's case) or the product of a deep misunderstanding of what their jobs are really all about.

The Great Writ

Lest you think that all of my posts on Greek Chorus will be confined to the theoretical realm, I thought I'd take the opportunity to comment on this front page NYT piece on the pre-trial issues surrounding the prosecution of Jose Padilla.

For those of you who are unfamiliar with Mr. Padilla's story, he is an American citizen and accused terrorist who was stopped by officials at Chicago's O'hare International Airport in 2002 and was subsequently designated an enemy combatant by the Bush Administration. Being so designated, it was the Administration's position that, despite that fact that he is an American citizen, they have the right to detain him until the "end of hostilities" (ostensibly until they declare an end to the war on terror, which is in my view, indefinitely). As an enemy combatant, the Administration contends that he has no right to legal counsel and perhaps no right to any sort of habeas corpus review.

The status of his right to habeas review is still an open question because on the veritable eve of the likely granting of cert. on his petition by the Supreme Court, the Administration abruptly transferred Padilla into the custody of the Justice Department and charged him with a number of crimes, none of which bore much resemblance to the actions he was initially accused of undertaking (including conspiracy to detonate a "dirty bomb").

Those skeptical of the Administration's motives (myself included) contend that this transfer was in effect an attempt to sidestep what the Administration perceives as a potentially damaging ruling on the habeas issues. There is some speculation the Administration may again choose to hold Padilla as an enemy combatant should he be acquitted in his criminal trial. This was also an argument made by his counsel as a reason why the Supreme Court should still have agreed to hear his petition. In fact, the 4th Circuit Court of Appeals actually denied the Administration's request for the transfer of custody, declaring that "we would regard the intentional mooting by the government of a case of this import out of concern for Supreme Court consideration not as legitimate justification but as admission of attempted avoidance of review." Nevertheless, the Supreme Court ultimately overturned this ruling and subsequently denied Padilla's habeas petition on mootness grounds, albeit with three justices dissenting from the denial of cert.

With that as background, the article describes (with photos) the conditions of Padilla's detention while classified as an enemy combatant and outlines one of the main pre-trial arguments being made by his attorneys. They claim that he is unfit to stand trial because he is incapable in aiding in his own defense. They cite experts who have examined him and have stated their clinical belief that he suffers from severe post-traumatic stress disorder (PTSD).

Furthermore, they also contend that the "aggressive interrogation techniques" to which he was subjected (which they contend include "hooding, stress positions, assaults, threats of imminent execution and the administration of 'truth serums' ") have made Padilla so suspicious that at times he contends that his own lawyers are actually part of an extensive ruse on the part of the government to interrogate him further. The government obviously denies the accusations of torture and retort that "Padilla's conditions of confinement were humane and designed to ensure his safety and security"

I frankly don't even know where to start with this. I could talk about how we seem all too willing as a nation to continence torture if we perceive that torture to make us more safe. I could start with how disturbing I find it that our government feels justified in manipulating our legal system so as to best avoid a head-on adjudication of these issues. I could tie this discussion into the recent passage of the Military Commissions Act, which in my view, tries to place a stamp of legitimacy on the denial of what I view as core Constitutional and human rights. But rather than tackle all of these admittedly large and complex issues today, let's just focus on the notion of denying an American citizen the rights afforded by The Great Writ.

Volumes have been written by much smarter people than myself on the legal issues surrounding Padilla specifically and the enemy combatant designation generally. I would just pose the question:

Legalities aside, do we want to be governed by individuals who feel that denying and/or manipulating the core rights of American citizens in the name of the "war on terror" is a morally acceptable policy decision?

Given my phrasing of the question, my view on the answer should be fairly obvious. To me, the multitude of arguments supplied by those who support the Administration's handling of Jose Padilla boil down to a technocratic/utilitarian worldview which places security and efficiency above all else. Perhaps even worse, by employing evasive maneuvers with the express purpose of shielding these issues from the public eye through a combination legalistic gymnastics, "carefully" worded press releases and tortured legal memorandums, the Administration has done its utmost to unilaterally revoke our rights. The good news is that history has shown our resilience with respect to these incursions upon our liberty, and in the end, we always seem to arrive at a reasonable equilibrium, though often only after a fair bit of zigging and jagging along the way.

Issues Misalignment Across the Parties

What if you could institute by fiat the party platform for either the Dems. or the GOP? If you undertook this exercise with the goal of maximizing the portion of the electorate which supports your platform, in theory you could create a party which would enjoy broad support until such time as there are major societal, economic, or moral shifts which cause a substantial realignment of voter views.

Given the results of the last election and some plausible interpretations floating around about the causes of the substantial victory enjoyed by the Dems., I think we are in period where either party (probably the GOP more easily than the Dems.) could undergo a reinvention, which while radical to be sure, would enable it to capture a lasting majority of the electorate.

It is my contention that a substantial majority (60%+) of American would sign on to the following platform (I'm *NOT* endorsing this platform in any way, I just think it would garner the votes):

- substantially increased protectionism, especially in industries where the price impacts for consumers would not be readily perceived
- strict enforcement of immigration law with very little tolerance for any sort of guest worker program or other vehicle which enables the sourcing of low cost labor from a non-American labor pool
- strong position on terrorism issues: support for things like the warrantless wiretapping program, tough "trial" standard for Guantanamo detainees, more pervasive surveillance of groups who appear to be "suspicious", tolerance for aggressive interrogation tactics
- isolationism-lite: withdrawal from Iraq and a limitation on US involvement oversees except when it pertains to direct, quantifiable, and imminent threats, and then only when undertaken with a very "tactical" game-plan
- support for stem cell research
- opposition to same sex marriage
- support for moderate, reasonable restrictions on abortion
- substantial tax increases on the wealthy undertaken in conjunction with an increase in the minimum wage

While not an exhaustive list of positions, I think the above would garner support from a substantial majority of Americans. For the GOP particularly, they wouldn't have to move the center of gravity *that* far to adopt this platform in its entirety. The key decision would need to be a willingness to abandon the "business" wing of the GOP. This is not a trivial step, especially as it pertains to fundraising, but if the GOP could somehow commit, it might pay lasting dividends.

I've long felt that the grand GOP collation of values voters and the business community is a curious one which is destined to breakdown at some point. I think both halves of the collation have felt that they have no better option while at the same time expressing displeasure about their sister wing of the Party. Furthermore, as has been endlessly repeated, many of the successful Dems. in this election cycle strongly embraced the populist issues set espoused by the likes of Lou Dobbs and others.

If the GOP could somehow jettison the business wing and simultaneously embrace/co-opt from the "new" Dems. the populist issues like protectionism, isolationism-lite, and the minimum wage, I think they could bolster their base with a number of new voters who aren't turned off by the values issues the GOP has long championed but were bothered by the pro-business, anti-worker/consumer economic policies.

Were they to do this, the old Right/Left labels would disappear and would be replaced something like a Populist Right and a Libertarian Left. I actually don't think it's a huge stretch to see traditional social liberals meld with classical economic liberals. Look at the Liberal Democrats in the U.K. I think this is especially true given what happened in the last election, with many wealthy, moderate Republicans, especially in the northeast, voting against would could be argued as their strict/purely rational self interest to help elect a Democratic Congress which may well reduce their future earnings and/or their wealth.

One need to look no further than traditional "Big L" liberals, who routinely vote against their economic interests, in many cases. Given a choice between a bunch of populist isolationists and a disconnected group of social liberals, I don't think it would be impossible to see the business community choosing the latter.

Welcome to Greek Chorus

I though I'd start things off by telling you a little about the genesis of this blog. The three primary contributors, Cassandra, Hector, and myself, have all been friends for many years and all have quite the appetite for kindly, yet at times heated, discourse regarding the weighty issues of the day.

Our interests are somewhat varied, but we all share a love for the discussion of politics, legal issues, foreign policy, and economics. While none of us are experts on any of these topics, our backgrounds and experiences give us all what we think is the ability to comment critically and constructively and hopefully in a way which is not too often partisan, shrill, or misleading.

While our own styles, points of view and biases will no doubt become quite apparent as this blog evolves, its worth noting that it took us nearly a month just to decide on the pseudonyms and the name for the blog. Many, many, many iterations were proposed, debated, amended, and abandoned before we finally arrived where we are. Perhaps Cassandra or Hector will feel moved to fill in some of the details....

And with that, we're off and running.