My Response to Clint Taylor
Clint,
The question for me is not whether I prefer Bush to Kerry. I already know that I do, for many (although not all) of the reasons that you outlined. Rather, the question is would I rather SAY and THINK TO MYSELF that I voted for Bush or that I voted for Badarnik.
Why is the last question the way I choose to look at it? Because I am incredibly certain that my vote WILL NOT SWAY THE ELECTION and if it did, it would be tossed out in a recount. Single votes do not matter - groups of votes do - and my voting third party will not affect enough other people to make a noticeable difference in this election - even in a state as close as Ohio.
Additionally - my voting third party has an added bonus in that I am more likely to succeed at convincing Kerry Ohio voters to not vote for their candidate and switch to Bush, because I will be more likely to portray myself as a neutral relatively unbiased observor. I have already used this tact to switch quite a few votes from Kerry to Bush.
Now, going to the second question - which would I rather SAY I voted for after the election. I will not outline my issues in not voting for Bush - you already know them (war on drugs, increase in government spending/entitlements, protectionism, stance on gay marriage). However, there are additional reasons that we have not mentioned that could sway my vote either way. First, Badarnik is a little too isolationist for my tastes. Second, I want to give the president "moral support" for many foreign policy stances that I find courageous. Finally, saying that I voted for Bush has much more comedic effect on those whose opinions I find simplistic than saying I voted third party. On the other hand, there is something to be said about voting for somebody who you agree with on almost all the issues (Badarnik). Also, if Bush ends up losing, I'll have the satisfaction of knowing that I least cast my vote for a candidate that I believe in. Finally, it is very important to me to vote for at least one libertarian an election cycle - it just so happens that in this election, the only liberterian on the ballot is running for president.
I have not made up my mind yet on how I'll vote, but I'll make a decision tonight after seeing Team America for inspiration.
All the Best,
Elliot
Tuesday, October 19, 2004
Clint Taylor: "Elliot - you better vote Bush"
Here is an email Clint Taylor sent me yesterday. As many of you know, I'm torn between voting Bush and Badarnik (Liberterian Party).
Elliot:
You’re not shy about your conflict over whom you will vote for. Will you vote for Bush, or withhold your vote and assent to Kerry’s leadership? Bush has expanded government! He’s not for abortion rights! He’ll empower a shadowy Christian theocracy!
Well, Hamlet, do you expect the supporters of the various candidates to come to your dorm and give you a power point to resolve your political identity crisis?
Because I will, if that’s what it takes. I’ll do anything legal and ethical that might help convince you George Bush deserves your vote in Ohio. It’s that important.
This is about more than the two candidates that are running and their records (or their lack thereof.) It’s about the judges they will appoint, the advisers they will heed, the message they will send to the rest of the world.
You could get tied up in intellectual knots computing the lesser evil. You could assign weighted balances to various issues and run regressions on their departure from your positions. Or you could step back and look at the big picture:
This election is a referendum on the relationship of America to the rest of the world. Bush stands for the proposition that it is all right for America to go on offense to protect our security. Like we did in Iraq, and Afghanistan.
Kerry says he believes that, but he hasn’t really projected that image well. He could do so if he wanted to; but even while he swears he’ll hunt down terrorists and kill them he sounds like he’s trying to convince himself. With good reason: he voted against Iraq I. He voted for Iraq II but then switched his position. He militated against anti-communist activities in Central America because (according to the Boston Globe) they reminded him of Vietnam. He served admirably but then returned and castigated U.S. involvement there even as he slandered American troops as butchers, renegades, and rapists. I think the only war he was for was part of the drug war, when he voted for the invasion of Panama in 1989.
Kerry’s slogan is “safer at home, more respected abroad”. The two are, sadly, mutually exclusive. Before September 11 we were somewhat more respected abroad, or at least marginally less detested, even as the hijackers planned our destruction. If we are less respected now, we are also safer at home thanks to the elimination of the Taliban, the capture of Saddam, and the disarming of Libya.
A side effect of our offensive operations has been the extension of democracy and human freedom where it hasn’t ever taken root before. Women vote in Afghanistan. Iraq is a mess but they’re having elections; the mass graves have been opened, and Uday’s rape rooms are closed. The Iranian mullahs are desperate and walking a nuclear tightrope that I suspect will be neatly snipped soon after the election. Bashar Assad is showing a little perestroika. Aristide is out of Haiti; Charles Taylor—a repugnant cannibal—is out of power in Liberia. These aren’t accidents: because tyrants are America’s natural enemies, we are sowing the seeds of democracy on their graves. Which has never been a popular thing to do.
Kerry, meanwhile, needs to review Machiavelli’s dictum that it is better to be feared than loved. He proposes truckling to the Iranian mullahs and offering to give them nuclear fuel, and “calling their bluff”. Why? Does this man seriously doubt the Iranian mullahs are bluffing when they say they want a peaceful reactor? Is he that credulous? Now this isn’t like giving them a ready-made bomb; he might argue; if they try to turn this into highly enriched uranium the inspectors will catch them.
He’s crafty, this John Kerry. I’ll bet when he was a prosecutor, he would evaluate whether a suspect was a murderer by handing them a pistol and seeing whether he shot anybody with it. This was the logic that motivated the 1994 agreed Framework with North Korea. That worked brilliantly, until North Korea just threw out the inspectors, turned off the cameras, and opened up Bombs R’ Us.
Kerry’s logic on Iran will have us repeat that performance. And Iran, unlike North Korea, has already been tied to terrorism. The one I remember most vividly is the car bomb at a Jewish community center in Buenos Aires in 1994. Killed 85 people, and scared the living crap out of my girlfriend who was studying abroad not too far away. That was the second bombing in Buenos Aires; they blew up the Israeli embassy a couple of years earlier. (Here’s a link: http://www.cnn.com/2003/WORLD/europe/08/22/britain.argentina/) As I married that girl and she is now the mother of my daughter, I have a selfish interest in making sure that Iran will not repeat that stunt with a nuclear weapon. I want Iran armed with spitballs, not our own troops. I don’t need to call their bluff. They’re not bluffing.
If Kerry is for calling bluffs, then he ought to have supported the invasion of Iraq. If Saddam had in fact secretly, illegally destroyed or given away his weapons to preserve their power as a deterrent, then that was a bluff. And like John Wayne in True Grit, twirling his Winchester and shouting “FILL YOUR HAND, YOU SON OF A BITCH!”, Bush called his bluff.
But I’m leading up to something here. You’re a libertarian, Elliot, and I’m more of a conservative and I certainly don’t take your support of a conservative candidate for granted. And even though you might like the expansion of liberty abroad, you’re probably worried about the state of it at home.
You should. Because Bush’s offensive strategy against terrorists is better for our liberties than Kerry’s defensive, consensual strategy. We need to defend the borders better. But to defend the borders without addressing the source of the problem means that we’re just buying time and we’re living in fear. Kerry has said he’d like to see terrorism reduced to a nuisance like gambling or prostitution. But that’s silly; we don’t quake in fear, worrying that we will be propositioned by some busty jihadi in fishnets. Conversely, the Indians that run our casinos might host the Syrian Wayne Newton, but they’re not going to blow up a Jewish Community Center. Terrorism, by definition, cannot be a nuisance, and nuisances do not inspire terror. They inspire indignation, maybe even outrage, but not terror.
Terror is the intended result of terrorism, however, and it is a very corrosive product. It eats away at our liberties. It rots our civility and it numbs us to the many awful things done to fight it. McCarthy exploited terror about communism (much of which was justified.) Putin is using it to consolidate power in Russia. Some say Bush is using it to consolidate power here. Of course, “some” are wrong.
Nine-Eleven’s terror had one salutary effect in that it dissolved a little of the crusted lime that held our anti-terror bureaucracy in place. We were free to ask questions and re-configure things. And the guys who wrote the Patriot Act noticed that we weren’t able to fight terrorism even as efficiently as we fought drug traffickers. They looked around and saw a number of walls and inefficiencies hobbling our law-enforcement and intelligence services, many of them put there by Americans who simply did not trust America to defend herself. And everyone, even drug warriors like me, agreed that we at least ought to be able to use the same tools and strategies to fight terrorists that we were able to use to fight drug traffickers.
Everyone but John Kerry, I should add—but that’s another article in pre-publication right now. And of course, it’s not that the drug war has worked out so great, rather, that if the CIA wants to talk about intelligence with the FBI to stop a terrorist, they should get to. If they want to get a FISA warrant from a judge to wiretap a suspect, they can. There’s no documented abuse of Patriot Act powers; the library search provision hasn’t even been used. It’s hardly a power grab.
All the same it’s regrettable that we’ve had to make some of those changes in evidentiary standards. It’s regrettable we need to talk about stuff like “moderate physical pressure” and “unarmed combatants” and “racial profiling” the ugly neologism of “homeland security”. But we do need to talk about it, because we are at war, and we are on the defensive. But we are on the offensive, too—we are undermine radical Islam where it grows. We’re not managing it. We’re ending it. Slowly but surely, across the world, we’re suffocating it like we did Communism. And someday radical, fundamentalist Islam will be remembered like the only like the extinguished Thuggee murder-cult in India (http://www.bbc.co.uk/religion/religions/hinduism/features/thugs/ ). Can you name a single Thuggee martyr who was crushed under the boot of British colonialism? Nope. Just the generic word “thug” brings them to mind now and then. (And by the way, Hinduism, the larger religion of which the Thuggees were a perversion, is doing quite well without them, last time I checked. There were Muslim Thuggees as well, but not anymore.)
This is not some Orwellian perpetual war. We beat Nazism by going on the offensive. We beat Communism by a hundred ugly proxy wars and rebellions around the globe. We will vanquish radical Islamism and perhaps leave some lasting democracies in its wake. And we will still be America when we finish.
A vote for Bush is a vote for a winnable, finite war on terror.
Contrast this to Kerry’s cosmopolitan approach to this war. He demands compromise, and burden sharing, and a defensive posture. He wants to manage the problem. He wants to regulate it. It’s “primarily a law enforcement problem”.
Like gambling. Like prostitution. Like the war on drugs, except that Kerry actually advocated... ahh, there I go again. Anyway, a daily event. No biggie. An “acceptable level of violence” as was decreed in Northern Ireland in the ‘80’s. A nuisance. A government program like poverty, a fake, platitudinous war, not a real one. Like the weird dystopia in Terry Gilliam’s Brazil, with bombs going off in shopping centers and a horrendous totalitarian mechanism torturing people to catch the anarchists.
I won’t have that here. I’ll make some compromises while I have to, with the understanding that this is temporary, while we fight the war over where it belongs. And I will only make those few compromises because we are willing to fight the war where it belongs. But not forever. Not that sort of perpetual management of terror. Not in America.
Now when we do fight, Senator Kerry insists we will bring our respectful partners along. We will compromise and deal. That’s necessary, to a point. But did you hear John Kerry say in the first debate that:
If the president had shown the patience to go through another round of resolution, to sit down with those leaders, say, "What do you need, what do you need now, how much more will it take to get you to join us?" we'd be in a stronger place today.
What if he’d said that? Those leaders would have realized “Wow, this guy’s desperate!” What would they have said then? How about, “We need you to join the International Criminal Court!”
Or, what if they had said, “Rejoin Kyoto!”
Or “Ratify the Law of the Sea!”
Or “Give us MFN trade status—as you overlook our own protectionism”
Or “Let us install international observers at your next election.”
Or “Ease up the visa scrutiny on our (Yemeni, Egyptian, Arabian, etc.) applicants!”
Or “Double your foreign aid to us!”
Or “Please enact some sensible gun control policy!”
Or “You know, if UNESCO just had another twenty billion dollars…”
Or “Give us some of that sweet nuclear fuel you’re passing out like Halloween candy!”
Or “Apologize for (Allende, Mossadegh, Crazy Horse, Noriega)!”
Or “Give up YOUR nuclear arsenal!”
Or “Grant a general amnesty for every illegal Mexican in your borders!”
Or “End the death penalty!”
Or “Leave (Chavez, Mugabe, Arafat, Castro) alone.”
Or “For God’s sake, QUIT LOOKING INTO OIL-FOR-FOOD!”
We would not be in a stronger place today.
Saddam would.
This litany of potential demands just shows how terrible a Kerry foreign policy would be for American liberty. For if these things were asked, he would consider them. If he refused, as I hope he would, we would really be no better off than we are under Bush. But if he said yes…
And he would.
I don’t trust John Kerry at the negotiating table. I don’t trust him because he basically is campaigning on begging for world approval, and gives us no clue of how far he is willing to bend to accommodate foreign leaders. Today the anti-Semitic former Prime Minister of Malaysia endorsed Kerry, and so did the Palestinian Authority’s foreign minister. What will their payoff be if Kerry wins? What could they possibly want that we ought to give them?
The sad thing is it isn’t even necessary. Bush has done a fine job managing an alliance. Consider this, from his speech in New Jersey today:
“America is safer today because Afghanistan and Iraq are fighting terrorists instead of harboring them.”
We are safer today and we are freer because of that. And so are Afghanistan and Iraq.
I understand why you don’t like Bush. But Kerry wants to manage the war indefinitely. That’s bad for our liberties. And “global test” or no, he will beg for an alliance when we need to exercise our power abroad. How much of our liberty will this need for affirmation cost us? He’ll leave us no freer, I guarantee that.
Bush wants to win. His vision of the war is sweeping, true, but ultimately, it’s finite. After a long slog, fundamentalist Islamic terrorism can go the way of the Thuggees if President Bush is allowed to keep the pressure up.
Please help him do so, Elliot. Our lives and our freedom might just depend on it.
--CWT
Here is an email Clint Taylor sent me yesterday. As many of you know, I'm torn between voting Bush and Badarnik (Liberterian Party).
Elliot:
You’re not shy about your conflict over whom you will vote for. Will you vote for Bush, or withhold your vote and assent to Kerry’s leadership? Bush has expanded government! He’s not for abortion rights! He’ll empower a shadowy Christian theocracy!
Well, Hamlet, do you expect the supporters of the various candidates to come to your dorm and give you a power point to resolve your political identity crisis?
Because I will, if that’s what it takes. I’ll do anything legal and ethical that might help convince you George Bush deserves your vote in Ohio. It’s that important.
This is about more than the two candidates that are running and their records (or their lack thereof.) It’s about the judges they will appoint, the advisers they will heed, the message they will send to the rest of the world.
You could get tied up in intellectual knots computing the lesser evil. You could assign weighted balances to various issues and run regressions on their departure from your positions. Or you could step back and look at the big picture:
This election is a referendum on the relationship of America to the rest of the world. Bush stands for the proposition that it is all right for America to go on offense to protect our security. Like we did in Iraq, and Afghanistan.
Kerry says he believes that, but he hasn’t really projected that image well. He could do so if he wanted to; but even while he swears he’ll hunt down terrorists and kill them he sounds like he’s trying to convince himself. With good reason: he voted against Iraq I. He voted for Iraq II but then switched his position. He militated against anti-communist activities in Central America because (according to the Boston Globe) they reminded him of Vietnam. He served admirably but then returned and castigated U.S. involvement there even as he slandered American troops as butchers, renegades, and rapists. I think the only war he was for was part of the drug war, when he voted for the invasion of Panama in 1989.
Kerry’s slogan is “safer at home, more respected abroad”. The two are, sadly, mutually exclusive. Before September 11 we were somewhat more respected abroad, or at least marginally less detested, even as the hijackers planned our destruction. If we are less respected now, we are also safer at home thanks to the elimination of the Taliban, the capture of Saddam, and the disarming of Libya.
A side effect of our offensive operations has been the extension of democracy and human freedom where it hasn’t ever taken root before. Women vote in Afghanistan. Iraq is a mess but they’re having elections; the mass graves have been opened, and Uday’s rape rooms are closed. The Iranian mullahs are desperate and walking a nuclear tightrope that I suspect will be neatly snipped soon after the election. Bashar Assad is showing a little perestroika. Aristide is out of Haiti; Charles Taylor—a repugnant cannibal—is out of power in Liberia. These aren’t accidents: because tyrants are America’s natural enemies, we are sowing the seeds of democracy on their graves. Which has never been a popular thing to do.
Kerry, meanwhile, needs to review Machiavelli’s dictum that it is better to be feared than loved. He proposes truckling to the Iranian mullahs and offering to give them nuclear fuel, and “calling their bluff”. Why? Does this man seriously doubt the Iranian mullahs are bluffing when they say they want a peaceful reactor? Is he that credulous? Now this isn’t like giving them a ready-made bomb; he might argue; if they try to turn this into highly enriched uranium the inspectors will catch them.
He’s crafty, this John Kerry. I’ll bet when he was a prosecutor, he would evaluate whether a suspect was a murderer by handing them a pistol and seeing whether he shot anybody with it. This was the logic that motivated the 1994 agreed Framework with North Korea. That worked brilliantly, until North Korea just threw out the inspectors, turned off the cameras, and opened up Bombs R’ Us.
Kerry’s logic on Iran will have us repeat that performance. And Iran, unlike North Korea, has already been tied to terrorism. The one I remember most vividly is the car bomb at a Jewish community center in Buenos Aires in 1994. Killed 85 people, and scared the living crap out of my girlfriend who was studying abroad not too far away. That was the second bombing in Buenos Aires; they blew up the Israeli embassy a couple of years earlier. (Here’s a link: http://www.cnn.com/2003/WORLD/europe/08/22/britain.argentina/) As I married that girl and she is now the mother of my daughter, I have a selfish interest in making sure that Iran will not repeat that stunt with a nuclear weapon. I want Iran armed with spitballs, not our own troops. I don’t need to call their bluff. They’re not bluffing.
If Kerry is for calling bluffs, then he ought to have supported the invasion of Iraq. If Saddam had in fact secretly, illegally destroyed or given away his weapons to preserve their power as a deterrent, then that was a bluff. And like John Wayne in True Grit, twirling his Winchester and shouting “FILL YOUR HAND, YOU SON OF A BITCH!”, Bush called his bluff.
But I’m leading up to something here. You’re a libertarian, Elliot, and I’m more of a conservative and I certainly don’t take your support of a conservative candidate for granted. And even though you might like the expansion of liberty abroad, you’re probably worried about the state of it at home.
You should. Because Bush’s offensive strategy against terrorists is better for our liberties than Kerry’s defensive, consensual strategy. We need to defend the borders better. But to defend the borders without addressing the source of the problem means that we’re just buying time and we’re living in fear. Kerry has said he’d like to see terrorism reduced to a nuisance like gambling or prostitution. But that’s silly; we don’t quake in fear, worrying that we will be propositioned by some busty jihadi in fishnets. Conversely, the Indians that run our casinos might host the Syrian Wayne Newton, but they’re not going to blow up a Jewish Community Center. Terrorism, by definition, cannot be a nuisance, and nuisances do not inspire terror. They inspire indignation, maybe even outrage, but not terror.
Terror is the intended result of terrorism, however, and it is a very corrosive product. It eats away at our liberties. It rots our civility and it numbs us to the many awful things done to fight it. McCarthy exploited terror about communism (much of which was justified.) Putin is using it to consolidate power in Russia. Some say Bush is using it to consolidate power here. Of course, “some” are wrong.
Nine-Eleven’s terror had one salutary effect in that it dissolved a little of the crusted lime that held our anti-terror bureaucracy in place. We were free to ask questions and re-configure things. And the guys who wrote the Patriot Act noticed that we weren’t able to fight terrorism even as efficiently as we fought drug traffickers. They looked around and saw a number of walls and inefficiencies hobbling our law-enforcement and intelligence services, many of them put there by Americans who simply did not trust America to defend herself. And everyone, even drug warriors like me, agreed that we at least ought to be able to use the same tools and strategies to fight terrorists that we were able to use to fight drug traffickers.
Everyone but John Kerry, I should add—but that’s another article in pre-publication right now. And of course, it’s not that the drug war has worked out so great, rather, that if the CIA wants to talk about intelligence with the FBI to stop a terrorist, they should get to. If they want to get a FISA warrant from a judge to wiretap a suspect, they can. There’s no documented abuse of Patriot Act powers; the library search provision hasn’t even been used. It’s hardly a power grab.
All the same it’s regrettable that we’ve had to make some of those changes in evidentiary standards. It’s regrettable we need to talk about stuff like “moderate physical pressure” and “unarmed combatants” and “racial profiling” the ugly neologism of “homeland security”. But we do need to talk about it, because we are at war, and we are on the defensive. But we are on the offensive, too—we are undermine radical Islam where it grows. We’re not managing it. We’re ending it. Slowly but surely, across the world, we’re suffocating it like we did Communism. And someday radical, fundamentalist Islam will be remembered like the only like the extinguished Thuggee murder-cult in India (http://www.bbc.co.uk/religion/religions/hinduism/features/thugs/ ). Can you name a single Thuggee martyr who was crushed under the boot of British colonialism? Nope. Just the generic word “thug” brings them to mind now and then. (And by the way, Hinduism, the larger religion of which the Thuggees were a perversion, is doing quite well without them, last time I checked. There were Muslim Thuggees as well, but not anymore.)
This is not some Orwellian perpetual war. We beat Nazism by going on the offensive. We beat Communism by a hundred ugly proxy wars and rebellions around the globe. We will vanquish radical Islamism and perhaps leave some lasting democracies in its wake. And we will still be America when we finish.
A vote for Bush is a vote for a winnable, finite war on terror.
Contrast this to Kerry’s cosmopolitan approach to this war. He demands compromise, and burden sharing, and a defensive posture. He wants to manage the problem. He wants to regulate it. It’s “primarily a law enforcement problem”.
Like gambling. Like prostitution. Like the war on drugs, except that Kerry actually advocated... ahh, there I go again. Anyway, a daily event. No biggie. An “acceptable level of violence” as was decreed in Northern Ireland in the ‘80’s. A nuisance. A government program like poverty, a fake, platitudinous war, not a real one. Like the weird dystopia in Terry Gilliam’s Brazil, with bombs going off in shopping centers and a horrendous totalitarian mechanism torturing people to catch the anarchists.
I won’t have that here. I’ll make some compromises while I have to, with the understanding that this is temporary, while we fight the war over where it belongs. And I will only make those few compromises because we are willing to fight the war where it belongs. But not forever. Not that sort of perpetual management of terror. Not in America.
Now when we do fight, Senator Kerry insists we will bring our respectful partners along. We will compromise and deal. That’s necessary, to a point. But did you hear John Kerry say in the first debate that:
If the president had shown the patience to go through another round of resolution, to sit down with those leaders, say, "What do you need, what do you need now, how much more will it take to get you to join us?" we'd be in a stronger place today.
What if he’d said that? Those leaders would have realized “Wow, this guy’s desperate!” What would they have said then? How about, “We need you to join the International Criminal Court!”
Or, what if they had said, “Rejoin Kyoto!”
Or “Ratify the Law of the Sea!”
Or “Give us MFN trade status—as you overlook our own protectionism”
Or “Let us install international observers at your next election.”
Or “Ease up the visa scrutiny on our (Yemeni, Egyptian, Arabian, etc.) applicants!”
Or “Double your foreign aid to us!”
Or “Please enact some sensible gun control policy!”
Or “You know, if UNESCO just had another twenty billion dollars…”
Or “Give us some of that sweet nuclear fuel you’re passing out like Halloween candy!”
Or “Apologize for (Allende, Mossadegh, Crazy Horse, Noriega)!”
Or “Give up YOUR nuclear arsenal!”
Or “Grant a general amnesty for every illegal Mexican in your borders!”
Or “End the death penalty!”
Or “Leave (Chavez, Mugabe, Arafat, Castro) alone.”
Or “For God’s sake, QUIT LOOKING INTO OIL-FOR-FOOD!”
We would not be in a stronger place today.
Saddam would.
This litany of potential demands just shows how terrible a Kerry foreign policy would be for American liberty. For if these things were asked, he would consider them. If he refused, as I hope he would, we would really be no better off than we are under Bush. But if he said yes…
And he would.
I don’t trust John Kerry at the negotiating table. I don’t trust him because he basically is campaigning on begging for world approval, and gives us no clue of how far he is willing to bend to accommodate foreign leaders. Today the anti-Semitic former Prime Minister of Malaysia endorsed Kerry, and so did the Palestinian Authority’s foreign minister. What will their payoff be if Kerry wins? What could they possibly want that we ought to give them?
The sad thing is it isn’t even necessary. Bush has done a fine job managing an alliance. Consider this, from his speech in New Jersey today:
“America is safer today because Afghanistan and Iraq are fighting terrorists instead of harboring them.”
We are safer today and we are freer because of that. And so are Afghanistan and Iraq.
I understand why you don’t like Bush. But Kerry wants to manage the war indefinitely. That’s bad for our liberties. And “global test” or no, he will beg for an alliance when we need to exercise our power abroad. How much of our liberty will this need for affirmation cost us? He’ll leave us no freer, I guarantee that.
Bush wants to win. His vision of the war is sweeping, true, but ultimately, it’s finite. After a long slog, fundamentalist Islamic terrorism can go the way of the Thuggees if President Bush is allowed to keep the pressure up.
Please help him do so, Elliot. Our lives and our freedom might just depend on it.
--CWT
Monday, October 18, 2004
The Case for Bush
Required Reading. I'll make up mind in the next day or two whether I'll vote for him or Badarnik (liberterian party). One thing is certain - I will not vote for Kerry in this election.
Required Reading. I'll make up mind in the next day or two whether I'll vote for him or Badarnik (liberterian party). One thing is certain - I will not vote for Kerry in this election.
Wednesday, October 13, 2004
Debate in Paradise
Today’s blogging post is a debate that I helped setup in my position as Speaker’s Chair for Federalist Society with my counterpart, Danielle Goldstein of the American Constitution Society. I’ll try my best to get the pertinent arguments down, but no promises. And if I misquoted one of the speakers, my apologies.
The topic is law executive power and national security. The moderator is Prof. Tino Cuellar. The debaters are Prof. John Yoo of Boalt Law School at Berkeley (famous for writing the Bybee memo that argued that torture was legit under the law under certain circumstances) and Prof. George Harris of McGeorge Law School, partner of Morrison Forrestor (MoFo) (famous for being counsel to John Walker Lynn)
Prof. Yoo frames the question of whether non-state actors such as Al-Queda should receive the benefit of our criminal Justice System.
Prof. Harris argues that the question is whether our civil liberties are capable of
accommodating the war on terror.
Tino Cuellar will now ask the first question. One side will answer, then the other side will respond.
Legend – C= Cuellar, H=Harris, Y=Yoo
C: Prof. Harris – are there any circumstances in which you think the president can detain a citizen as an enemy combatant without a hearing?
H: Yes, if we had a sufficiently large crisis, and were willing to put enough confidence in the executive. The difficulty here is that the crisis is not of a defined period of time, but rather is potentially a perpetual war. Here, finding the enemy is determining their guilt. It is circular. While this is possible theoretically, we are not there now. If we follow the administration’s policy, we are carving out an area of civil liberties
C: Suspension is critical in your account (of habeas course)…
H: I don’t think the president has the power to detain somebody without any review (hamdi)
Y: We agree on the following – there is a rule under the “war system” of detention. I disagree with him under the use of the word guilt. That is a criminal law concept. Guilt is a retrospective concept. Military system is different – it is designed to prevent FUTURE harms. It is not a question of guilt/innocence. Under the military system you can detain enemy combatants until the end of the conflict (not necessary to know when it ends under Hamdi). Court made clear that the executive is able to detain until the conflict is over – not relevant now to define when.
Hamdi also made clear that this rule applied it to U.S. citizens. However, the supreme court’s cases are clear – citizens who are enemy candidates get hearings (harris was correct here). But in enemy combatant cases the question is all about WHAT THE STANDARD OF REVIEW do the federal courts use to review the executive branch’s citizens. Court wouldn’t pick a std. of rev. in Hamdi. More clear to focus on what the hard choices are.
C: Speaking of the std. of rev., at some level there is a dispute at how much power the fed. Gov. should have in detaining somebody. One justice said that “the very core of liberty secured by the anglo-saxon … [is freedom from detainment]”
Y: This is an example of Scalia’s use of overly vivid language. Let’s be frank – there is nothing in the Habeas Corpus body of statutes (?) that suggests how Habeas proceedings are to run, and there is no incentive for the legislature to pass such a statute.
The gov’t proposed standard was drawn from immigration law. There the std. Of rev. is the “some evidence review” – if the exec. Branch provides “some evidence” it gets some deference from the reviewing court for its decisions.
H: First, on this point of what the gov’t’s position is, it evolved. He goes on talking about how the gov’t provided only a three page hearsay memo to the reviewing court in Hamdi and said that was all it needs.
Yes, Hamdi did not give all the answers by any means. Yes, it said that the gov’t had the power to detain enemy combatants in time of war. What the court doesn’t answer (question presented by pedilla) is can we apply this (sorry, somebody whispered to me, so I lost that ) – if American detained, what is the std.? Some evidence?
C: What is your explanation of what meets “some evidence”? Does the three page Memo meet it?
Y: Yes, it was a summation of all evidence. You could call every soldier who had contact with hamdi, every official who dealt with issue. Old WWII case where captured german soldiers wanted De Novo hearing. Court deferred in interfering with military proceedings. Answers your question of why you would want a deferential standard. Cases like Milligan (old civil war case I think) took place AFTER war over. This is first habeas case that took place while still in heat of war (right?). In Hamdi and Lynn defendants wanted all Al Queda operatives in custody to come to court. We can’t do that in the middle of a war [my notes – would compromise security]. So we can’t have De Novo review.
C: Some sources have admitted that US uses moderate physical pressure to obtain crucial information. Should international law step in?
H: Yes, if the techniques are cruel and inhumane (I think he said that). State dep’t once said this about torture: Prohibite, categorically denounced, no official may use it or tolerate it, the law contains no provisions that permits it on grounds of exigent circumstances, etc. That was our pre 9/11 position. When we are looking for international support in the war on terror and we saying that doesn’t apply now, that is dangerous.
Suppose though that there is a ticking time (nuclear) bomb and we have somebody who knows. Well there, everybody knows what happens (You torture the bastard). And afterwards, maybe the torturer will have a necessity defense for prosecution. But this isn’t when torture has been being used.
Y: I don’t think it is the policy of the gov’t to engage in torture. Second, abu gharib (sp?) pictures does not mean that it was authorized or legal. Schelessinger report referred to by Harris does not find any authorization by higher ups. Also, what is it that you can do to interrogate people that isn’t in violation of torture ban. Shouldn’t we at least ask those questions? Isn’t it irresponsible to not ask the question.
So the torture convention which we ratified in ’92. There is torture and cruel/inhumane treatment. There is no statute that makes it a criminal act to engage in cruel/inhumane. Also lots of docs at time of adoption that state that because the cruel/inhumane standard so amorphous, no means of figuring out if in violation, so the admin at time of adoption didn’t want to fully get behind the standard by instiuting criminal punishment for doing it. Example - Is denying an attorney cruel/inhumane? Maybe.
In the war on terrorism, the most important commodity is information, which is the only way to stop them. As such, in this sort of conflict, by the circumstances we are placed in, we have heightened need to gain information.
C: Why can’t OLC share the legal justification for doing what it does on torture [prof. cuellar sends this - The question about keeping OLC memos secret wasn't primarily about the torture memos (though these were also kept secret) but about memos involving the authority of state and local law enforcement to get involved in civil immigration enforcement.]
Y: I know the opinion exists, but I have to admit I never read it. One possibility is classified information – but that is unlikely. Second is the attorney-client privilige – yes it is debatable whether such a thing exists for the government, but both the Clintons and the Bushes felt that when their admin went to the OLC, they were the client seeking legal advice, and they don’t want that advice shared.
H: You raise an interesting question about the duties of a government lawyer in those circumstances, but I do think to find the client we have to look at the whole executive, and not just the white house. One problem we have had due to this client policy is that we have been having policies determined in secret – where the white house knows, but the rest of the executive may not. Yes we have to protect information, but there is also a need to have some of these debates public debates. Schlessinger report speaks of isolation, use of stress positions, sleep/light deprivation, fear of dogs used and that is where you end up when you don’t set clear stds.
Y: I think there is a difference btwn. Law and policy. The Geneva conventions apply to nation states that have signed the treaty. Al Queda is not a nation, has not signed it, and has showed no desire to obey them. Now we can have a policy debate about whether we should give Geneva status to al queda members, but the government had that debate and made its decision. For that reason, the Geneva convention clearly apply in iraq, but Afghanistan was a tougher question. Afghanistan was a signatory nation, but by the taliban’s conduct’s they lost POW protections. It is up to the President to determine how this treaty apply (I think he said this)
C: Last question: No gov’t interest more compelling than the security of the nation. What exactly is the argument that the COURT has the experience/authority to arbiter claims on security against the executive. Why a judge?
H: I think it is particularly the place of a court to determine under what conditions we can imprison somebody. Its one thing to say that it is something that courts shouldn’t get into to determine prosecution of a war. But it is another thing to arrest people in Chicago, put people in the brig for three years, and then have the court accept an answer that they have no need to inquire.
Y: I have no comment on that point.
That brings up audience questions, but as I am getting close to carpal tunnel syndrome of the night, I will not be blogging that.
Today’s blogging post is a debate that I helped setup in my position as Speaker’s Chair for Federalist Society with my counterpart, Danielle Goldstein of the American Constitution Society. I’ll try my best to get the pertinent arguments down, but no promises. And if I misquoted one of the speakers, my apologies.
The topic is law executive power and national security. The moderator is Prof. Tino Cuellar. The debaters are Prof. John Yoo of Boalt Law School at Berkeley (famous for writing the Bybee memo that argued that torture was legit under the law under certain circumstances) and Prof. George Harris of McGeorge Law School, partner of Morrison Forrestor (MoFo) (famous for being counsel to John Walker Lynn)
Prof. Yoo frames the question of whether non-state actors such as Al-Queda should receive the benefit of our criminal Justice System.
Prof. Harris argues that the question is whether our civil liberties are capable of
accommodating the war on terror.
Tino Cuellar will now ask the first question. One side will answer, then the other side will respond.
Legend – C= Cuellar, H=Harris, Y=Yoo
C: Prof. Harris – are there any circumstances in which you think the president can detain a citizen as an enemy combatant without a hearing?
H: Yes, if we had a sufficiently large crisis, and were willing to put enough confidence in the executive. The difficulty here is that the crisis is not of a defined period of time, but rather is potentially a perpetual war. Here, finding the enemy is determining their guilt. It is circular. While this is possible theoretically, we are not there now. If we follow the administration’s policy, we are carving out an area of civil liberties
C: Suspension is critical in your account (of habeas course)…
H: I don’t think the president has the power to detain somebody without any review (hamdi)
Y: We agree on the following – there is a rule under the “war system” of detention. I disagree with him under the use of the word guilt. That is a criminal law concept. Guilt is a retrospective concept. Military system is different – it is designed to prevent FUTURE harms. It is not a question of guilt/innocence. Under the military system you can detain enemy combatants until the end of the conflict (not necessary to know when it ends under Hamdi). Court made clear that the executive is able to detain until the conflict is over – not relevant now to define when.
Hamdi also made clear that this rule applied it to U.S. citizens. However, the supreme court’s cases are clear – citizens who are enemy candidates get hearings (harris was correct here). But in enemy combatant cases the question is all about WHAT THE STANDARD OF REVIEW do the federal courts use to review the executive branch’s citizens. Court wouldn’t pick a std. of rev. in Hamdi. More clear to focus on what the hard choices are.
C: Speaking of the std. of rev., at some level there is a dispute at how much power the fed. Gov. should have in detaining somebody. One justice said that “the very core of liberty secured by the anglo-saxon … [is freedom from detainment]”
Y: This is an example of Scalia’s use of overly vivid language. Let’s be frank – there is nothing in the Habeas Corpus body of statutes (?) that suggests how Habeas proceedings are to run, and there is no incentive for the legislature to pass such a statute.
The gov’t proposed standard was drawn from immigration law. There the std. Of rev. is the “some evidence review” – if the exec. Branch provides “some evidence” it gets some deference from the reviewing court for its decisions.
H: First, on this point of what the gov’t’s position is, it evolved. He goes on talking about how the gov’t provided only a three page hearsay memo to the reviewing court in Hamdi and said that was all it needs.
Yes, Hamdi did not give all the answers by any means. Yes, it said that the gov’t had the power to detain enemy combatants in time of war. What the court doesn’t answer (question presented by pedilla) is can we apply this (sorry, somebody whispered to me, so I lost that ) – if American detained, what is the std.? Some evidence?
C: What is your explanation of what meets “some evidence”? Does the three page Memo meet it?
Y: Yes, it was a summation of all evidence. You could call every soldier who had contact with hamdi, every official who dealt with issue. Old WWII case where captured german soldiers wanted De Novo hearing. Court deferred in interfering with military proceedings. Answers your question of why you would want a deferential standard. Cases like Milligan (old civil war case I think) took place AFTER war over. This is first habeas case that took place while still in heat of war (right?). In Hamdi and Lynn defendants wanted all Al Queda operatives in custody to come to court. We can’t do that in the middle of a war [my notes – would compromise security]. So we can’t have De Novo review.
C: Some sources have admitted that US uses moderate physical pressure to obtain crucial information. Should international law step in?
H: Yes, if the techniques are cruel and inhumane (I think he said that). State dep’t once said this about torture: Prohibite, categorically denounced, no official may use it or tolerate it, the law contains no provisions that permits it on grounds of exigent circumstances, etc. That was our pre 9/11 position. When we are looking for international support in the war on terror and we saying that doesn’t apply now, that is dangerous.
Suppose though that there is a ticking time (nuclear) bomb and we have somebody who knows. Well there, everybody knows what happens (You torture the bastard). And afterwards, maybe the torturer will have a necessity defense for prosecution. But this isn’t when torture has been being used.
Y: I don’t think it is the policy of the gov’t to engage in torture. Second, abu gharib (sp?) pictures does not mean that it was authorized or legal. Schelessinger report referred to by Harris does not find any authorization by higher ups. Also, what is it that you can do to interrogate people that isn’t in violation of torture ban. Shouldn’t we at least ask those questions? Isn’t it irresponsible to not ask the question.
So the torture convention which we ratified in ’92. There is torture and cruel/inhumane treatment. There is no statute that makes it a criminal act to engage in cruel/inhumane. Also lots of docs at time of adoption that state that because the cruel/inhumane standard so amorphous, no means of figuring out if in violation, so the admin at time of adoption didn’t want to fully get behind the standard by instiuting criminal punishment for doing it. Example - Is denying an attorney cruel/inhumane? Maybe.
In the war on terrorism, the most important commodity is information, which is the only way to stop them. As such, in this sort of conflict, by the circumstances we are placed in, we have heightened need to gain information.
C: Why can’t OLC share the legal justification for doing what it does on torture [prof. cuellar sends this - The question about keeping OLC memos secret wasn't primarily about the torture memos (though these were also kept secret) but about memos involving the authority of state and local law enforcement to get involved in civil immigration enforcement.]
Y: I know the opinion exists, but I have to admit I never read it. One possibility is classified information – but that is unlikely. Second is the attorney-client privilige – yes it is debatable whether such a thing exists for the government, but both the Clintons and the Bushes felt that when their admin went to the OLC, they were the client seeking legal advice, and they don’t want that advice shared.
H: You raise an interesting question about the duties of a government lawyer in those circumstances, but I do think to find the client we have to look at the whole executive, and not just the white house. One problem we have had due to this client policy is that we have been having policies determined in secret – where the white house knows, but the rest of the executive may not. Yes we have to protect information, but there is also a need to have some of these debates public debates. Schlessinger report speaks of isolation, use of stress positions, sleep/light deprivation, fear of dogs used and that is where you end up when you don’t set clear stds.
Y: I think there is a difference btwn. Law and policy. The Geneva conventions apply to nation states that have signed the treaty. Al Queda is not a nation, has not signed it, and has showed no desire to obey them. Now we can have a policy debate about whether we should give Geneva status to al queda members, but the government had that debate and made its decision. For that reason, the Geneva convention clearly apply in iraq, but Afghanistan was a tougher question. Afghanistan was a signatory nation, but by the taliban’s conduct’s they lost POW protections. It is up to the President to determine how this treaty apply (I think he said this)
C: Last question: No gov’t interest more compelling than the security of the nation. What exactly is the argument that the COURT has the experience/authority to arbiter claims on security against the executive. Why a judge?
H: I think it is particularly the place of a court to determine under what conditions we can imprison somebody. Its one thing to say that it is something that courts shouldn’t get into to determine prosecution of a war. But it is another thing to arrest people in Chicago, put people in the brig for three years, and then have the court accept an answer that they have no need to inquire.
Y: I have no comment on that point.
That brings up audience questions, but as I am getting close to carpal tunnel syndrome of the night, I will not be blogging that.
Friday, October 08, 2004
Debate Reaction
Was it just me, or did Kerry look very haggard? He appeared pale, eyes sunken, the perfect picture of exaustion. Bush on the other hand, seemed like a teenage class clown with his expressions.
Anyway, on the substantive issues, I thought Bush cleaned Kerry's clock. Lines that allude to Kerry's desire of short-term popularity over security on the international stage hit home and went unanswered. And on the domestic side, Bush just let Kerry go on and on about all his promises that the president wouldn't match him on - and then Bush called him out on being for a rough form of socialized medicine.
I'm wondering if this will stop the bleeding - I think so.
Was it just me, or did Kerry look very haggard? He appeared pale, eyes sunken, the perfect picture of exaustion. Bush on the other hand, seemed like a teenage class clown with his expressions.
Anyway, on the substantive issues, I thought Bush cleaned Kerry's clock. Lines that allude to Kerry's desire of short-term popularity over security on the international stage hit home and went unanswered. And on the domestic side, Bush just let Kerry go on and on about all his promises that the president wouldn't match him on - and then Bush called him out on being for a rough form of socialized medicine.
I'm wondering if this will stop the bleeding - I think so.
Wednesday, October 06, 2004
VP Debates
I'll be up front - I missed the last thirty minutes of the debate. But from what I saw, Cheney cleaned up. He landed blow after blow on Edwards. Edwards only hit Cheney on two points - jobs and Cheney's senate record (voted against department of education, meals on wheels, head start, and urging the freeing of Nelson Mandela). Besides that it was all Cheney. Especially damning was when he nailed the Kerry-Edwards campaign for using the incorrect 90% of the cost 90% of the casualty statistics. But his faulting of Kerry's international Policy left Edwards stammering. As did his attack on Edward's non-presence in the Senate. Oh, and his line about being able to refute Halibuturn if given the time being shot down (the moderator wouldn't give him an extension) because it made Cheney appear willing, if given the chance, to squash a seeming smear.
A final note - did anybody else notice Cheney refusing to attack Edwards position on Homosexual Marriage? Perhaps a sign of conflict for him between what he believes in and what his duty is to advocate. But I wasn't paying that close attention by that point in the debate anyway.
I'll be up front - I missed the last thirty minutes of the debate. But from what I saw, Cheney cleaned up. He landed blow after blow on Edwards. Edwards only hit Cheney on two points - jobs and Cheney's senate record (voted against department of education, meals on wheels, head start, and urging the freeing of Nelson Mandela). Besides that it was all Cheney. Especially damning was when he nailed the Kerry-Edwards campaign for using the incorrect 90% of the cost 90% of the casualty statistics. But his faulting of Kerry's international Policy left Edwards stammering. As did his attack on Edward's non-presence in the Senate. Oh, and his line about being able to refute Halibuturn if given the time being shot down (the moderator wouldn't give him an extension) because it made Cheney appear willing, if given the chance, to squash a seeming smear.
A final note - did anybody else notice Cheney refusing to attack Edwards position on Homosexual Marriage? Perhaps a sign of conflict for him between what he believes in and what his duty is to advocate. But I wasn't paying that close attention by that point in the debate anyway.
Thursday, September 30, 2004
Debate Reaction
I decided not to go into specifics, because the swing voter doesn't care about them. My feeling was that Bush was less prepared than Kerry, and seemed quite evasive. On the other hand, if you were one of the ten people in the country who can explain Kerry's Iraq position, you win a cookie. If you believe that position is workable, you lose it.
My prediction is that Bush loses some momentum and Kerry cuts his lead to two or three points.
I decided not to go into specifics, because the swing voter doesn't care about them. My feeling was that Bush was less prepared than Kerry, and seemed quite evasive. On the other hand, if you were one of the ten people in the country who can explain Kerry's Iraq position, you win a cookie. If you believe that position is workable, you lose it.
My prediction is that Bush loses some momentum and Kerry cuts his lead to two or three points.
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