Another War of Jenkins' Ear

Resist The Pointless

Archive for June 2010

In Which I Discuss Blagojevich’s Defense: I Am An Idiot

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I’m not kidding:

His attorney told an interviewer that he had neither the capability nor the intention of shutting Blagojevich up.

“He’s a celebrity idiot, but he is a celebrity,” Sam Adam Jr. told Chicago Magazine of plans to let his client testify.

Quieting Blagojevich would never work, he added.

“I can’t. But you’re going to see when he testifies. He’s truly funny — totally self-absorbed but truly funny,” Adams said. “He’s also one of the most insecure people I’ve ever met. It’s such a strange dynamic.”

I’m not sure there’s anything more to say on this. Perhaps one lesson is that there is a reason why most politicians act the way they do, being careful with words and not acting like an “idiot. ”

When we the public elect people to represent us and make public decisions (or put a different way, have elections to give us the option of removing certain members of the government) that has consequences, one of which is that there will be a disconnect between the way they talk to each other and the way they talk to the public. At times, this becomes frustrating when politicians talk down, or when they use “politically correct” language. But it can go the other way: when they start talking to each other or their aides like they are used to doing in addressing a bunch of supporters … people can make mistakes.

That said, I’m not sure I believe the allegation that Blagojevich was this stupid. But it’s basically all his attorney had left.

I’m really not looking forward to his trial: political circus doesn’t begin to cover itfrom the trials of Aaron Burr or any impeachment proceedings, it’s one of the bigger events of its kind in American history.

Written by John Whitehouse

June 2, 2010 at 11:29 am

Posted in Politics

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Reasons to Be Miserable

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Written by John Whitehouse

June 1, 2010 at 8:36 pm

In Which I Discuss UN Reform (or lack thereof)

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This is somewhat buried in the news, but French President Nikolas Sarkozy called for African permanent seats on the Security Council;

The French president waded into the heated debate over United Nations reform, backing Africa’s call for more seats at the Security Council and also a voice at the Group of 20 club of rich economies.

“How can we accept a world where 25 percent of the population lives in Africa and yet it does not have a permanent seat at the Security Council?” Sarkozy said.

“This is an anomaly, an injustice and a source of imbalance,” said the president who pledged to push for change to give Africa more of a say, in particular when France takes the helm of the G20 next year.

Describing global governance as a “critical point” for Africa, South African President Jacob Zuma said leaders had agreed to discuss at their next African Union summit a French proposal to seek two Security Council seats with 10-year mandates.

That would be an intermediary step on the way to satisfying Africa’s long-standing demand for two permanent Security Council seats with veto powers.

“We cannot have institutions that were established in the 1940s, when there were fewer countries and colonialism,” said Zuma.

This is unrealistic and it is difficult to see any of the other 4 countries (or even France when push comes to shove) going along with it.

Moreover, there are two other problems: which countries would have these “permanent” seats, and would the Security Council still be effective?

Presumably South Africa would have one seat. Would Kenya have the other? Would it rotate? It’s not clear.

In terms of effectiveness, the Security Council was largely ineffective during the Cold War due to the US and USSR having veto power (once the USSR stopped boycotting it). Moreover, in present day it has gone from useless to … mostly useless. China, the US, and Russia all regularly threaten veto power (and France and Britain occasionally as well). Adding more countries does less to add a voice and does more to just prevent the Security Council from actually doing anything.

But this is all beside the point: the root problem here is not the effectiveness of the Security Council, but rather what does it consider: Sarkozy and Zuma are not talking about giving Africa a veto (which would have been useful 100 years ago and more, but less so today) but rather they are discussing giving Africa an affirmative voice.

Unfortunately, it’s not a Security Council veto that gives someone a voice (though in certain circumstances that does help). It’s the power a state possesses, whether measured militarily in nuclear weapons or strength of an army or economically or socially or what have you. If the United States wasn’t a member of the Security Council, it wouldn’t affect the United States’ power, it would affect how meaningful the Security Council was. That’s the lesson of the League of Nations.

Moreover, it seems everyone knows this. South Africa has been growing (if a bit erratically at times) since the end of apartheid. They’re about to host the World Cup. But geopolitically, it’s hard to say they are so powerful that the credibility of the UN Security Council is threatened if they don’t have a veto. (Though to be fair, I’m not sure Britain or France meet that standard either.)

Written by John Whitehouse

June 1, 2010 at 3:43 pm

In Which I Discuss Israeli Motives

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One of the weird things to me about the flotilla attack is that the motives for Israel to act in the particular way they did are unclear.

They clearly at some point would have to do something regarding the flotilla (I doubt “let it go unimpeded” was an option – there is an embargo on Gaza). But one would think they could have tried o divert it or blockade it or just to damage the ship enough to not continue further.

Why did they attack the ship 72 miles out to sea? (This does presume, of course, that there is a logical reason).

One potential answer is “because they can.” In this view, Israel can and must respond as forcefully as possible to those whose interest oppose it (I deliberately am not using the word enemies here; I don’t think it’s accurate to say the flotilla was Israel’s enemy the same way, for instance, Iran is). This is somewhat reminiscent of Eisenhower’s massive retaliation in practice.

The other line of thinking is the Lusitania argument. The Lusitania was a passenger ship famously sunk by a U-boat during World War I. There was great outrage at the time over sinking a passenger ship during a war and killing civilians. The Germans claimed the ship was carrying weapons. In the end the Germans were proven right.

The question, therefore, if one accepts this line of thinking, is what sort of weapons or munitions would be in a hold that Israel would fear be on that boat where they would have to intercept it 72 miles out at sea and not merely disable it or turn it away first. The list is not long, but one immediately thinks of some great weapon. Indeed, politicians like those now in power in Israel have been quite open about such fears.

There are problems with this theory. One, the first theory (because they can) strikes me as more plausible. Second, this would indicate a staggering failure of intelligence on the part of the Israelis.

This is a cautionary tale .. not of a robust self-defense as some would claim, but rather a cautionary tale of abandoning any diplomacy. Israel can do better. (Although, to be fair, a lot of countries could do better, and a lot of governments – including that of Gaza and the Palestinian Authority in the West Bank – could do better as well.)

See here and here for more information.

Written by John Whitehouse

June 1, 2010 at 1:40 pm

Posted in Foreign Policy

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In which I discuss “international waters”

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All this week I’m going to take a look at the Israeli attack and international law, piece by piece. Why in parts? One, to save my sanity. Two, to break the matter down into parts digestible by people without a law degree. (Hopefully).

(By the way: I should add that the worst part of this attack for Israel is not any judgment under international law per se, but rather the extreme chilling effect it would have on any possible Iranian sanctions. Others have said this long before I.)

So to start: One fact circulating regarding the Israeli attack on the flotilla is that it occurred in international waters; many people have not said what that means.

Here is a description from the Washington Post of what the Turkish Foreign Minister said:

Davutoglu displayed a map showing that the attack took place 72 nautical miles off the coast of Israel, far beyond the 12-mile sovereign border. He said that the “Israelis believe they are above any law” but that they would be held to account by Turkey and the international community. He likened the actions of the Israeli government to “pirates off the coast of Somalia,” not a civilized nation, and ridiculed Israeli claims that some in the flotilla were linked to al-Qaeda.

[ . . . ]

But he said that in Turkey’s view, U.N. Secretary General Ban Ki-moon has full authority under the statement to order an international probe. He noted that the incident took place in international waters so Israel has no right to declare it can conduct its own inquiry.

“We will not be silent about this,” he said. “We expect the United States to show solidarity with us. . . . I am not very happy with the statements from the United States yesterday.”

I’m going to take Dautoglu at his word regarding the 72 mile fact for two reasons; one, it is not in dispute by anyone I have seen (including Secretary-General Moon), and second that there is no reason to fudge the numbers dramatically.

The twelve mile rule regarding international waters has been set for a while – since the 1960s when a group of countries led by Egypt, Ethiopia, Saudi Arabia, Libya, and Venezuela moved to change territorial seas from 3 to 12 miles. (Which is what the Law of the Sea defines the limit as well).

Indeed Israel too claims 12 miles of territorial waters – just see this article about a foreign submarine that entered within 12 miles of shore in 2004. (see also here).

However, territorial waters is not the same as an exclusive economic zone. We’ll start with that tomorrow.

In the meantime, I could really use a map of where the incident occurred if anyone has it.

Written by John Whitehouse

June 1, 2010 at 1:04 pm

In Which I Agree With David Souter

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I’ve long admired certain so-called “moderate” elements of the Supreme Court, like Sandra Day O’Connor and David Souter. David Souter gave me more reason to admire him with his recent commencement address at Harvard, which some have called a speech that could be one of the most import legal speeches in decades. In it, Souter discusses interpretation of the Constitution. And it is something that not just lawyers should be aware of, but any citizens.

The normal current public framing of Constitutional interpretation is that “judicial activism” is bad. Souter took issue with that and the originalism that in part defines conservatives like Scalia, Thomas, Alito, and Roberts.

Real life is hard, and it requires choices. Interpreting the Constitution is no different. Here is the relevant portion of Souter’s speech (though the whole thing is short and should be read in full).

Even the First Amendment, then, expressing the value of speech and publication in the terms of a right as paramount as any fundamental right can be, does not quite get to the point of an absolute guarantee.  It fails because the Constitution has to be read as a whole, and when it is, other values crop up in potential conflict with an unfettered right to publish, the value of security for the nation and the value of the President’s authority in matters foreign and military.  The explicit terms of the Constitution, in other words, can create a conflict of approved values, and the explicit terms of the Constitution do not resolve that conflict when it arises.  The guarantee of the right to publish is unconditional in its terms, and in its terms the power of the government to govern is plenary.  A choice may have to be made, not because language is vague but because the Constitution embodies the desire of the American people, like most people, to have things both ways.  We want order and security, and we want liberty.  And we want not only liberty but equality as well.  These paired desires of ours can clash, and when they do a court is forced to choose between them, between one constitutional good and another one.  The court has to decide which of our approved desires has the better claim, right here, right now, and a court has to do more than read fairly when it makes this kind of choice.  Choices like the ones the Justices envisioned in the Papers case make up much of what we call law.

Should the choice and its explanation be called illegitimate law making?  Can it be an act beyond the judicial power when a choice must be made and the Constitution has not made it in advance in so many words?  So much for the notion that all of constitutional law lies there in the Constitution waiting for a judge to read it fairly.


Let me, like the lawyer that I am, sum up the case I’ve tried to present this afternoon.  The fair reading model fails to account for what the Constitution actually says and fails just as badly to understand what judges have no choice but to do.  The Constitution is a pantheon of values, and a lot of hard cases are hard because the Constitution gives no simple rule of decision for the cases in which one of the values is truly at odds with another.  Not even its most uncompromising and unconditional language can resolve the potential tension of one provision with another, tension the Constitution’s Framers left to be resolved another day; and another day after that, for our cases can give no answers that fits all conflicts, and no resolutions immune to rethinking when the significance of old facts may have changed in the changing world.  These are reasons enough to show how egregiously it misses the point to think of judges in constitutional cases as just sitting there reading constitutional phrases fairly and looking at reported facts objectively to produce their judgments.

The fair reading model has all that to answer for, but more than just that.  For the tensions that are the stuff of judging in so many hard constitutional cases are, after all, the products of our aspirations to value liberty, as well as order, and fairness and equality, as well as liberty.  And the very opportunity for conflict between the good and the good reflects our confidence that a way may be found to resolve it when a conflict arises.  That is why the simplistic view of the Constitution devalues those aspirations, and attacks that confidence, and diminishes us.  It is a model of judging that means to discourage our tenacity (our sometimes reluctant tenacity) to keep the constitutional promises the Nation has made.

So, it is tempting to dismiss the critical rhetoric of law making and activism as simply a rejection of at least some of the hopes we profess to share as the American people.  But there is one thing more.  I have to believe that something deeper is involved, and that behind most dreams of a simpler Constitution lies a basic human hunger for the certainty and control that the fair reading model seems to promise.  And who has not felt that same hunger?  Is there any one of us who has not lived through moments, if not years, of longing for a world without ambiguity, and for the stability of something unchangeable in human institutions?  I don’t forget my own longings which heartily resisted the pronouncement of Justice Holmes, which I read as an undergraduate, that certainty generally is illusion and repose is not our destiny.

I read these (wonderful) passages to say that what matters in law and in judging is consciously making decisions on how to weigh different values – something deeply Aristotelian and born out in virtue ethics.  In this view, following something because you think the framers would is a cop out- because what the framers really passed on to us today is the ability to make these Constitutional choices.

Judges are not computers; there are people, not surprisingly, exercising judgment. Focusing only on abortion or cliches like judicial activism or party affiliation is a terrible way to gauge their competence.

As a way of thinking about judging, this speech forges a path that neither is born out of the traditional leftist jurisprudence of increasing state activism nor the Rehnquist style jurisprudence of decreasing the power of the state; rather it tries to form a balance between the two, and a plausible way forward following the see-saws of the twentieth century, from Lochner and Schecter Poultry to the Court filled with FDR appointees and then the Warren Court, to finally the conservative resurgence with Rehnquist, Scalia, etc. This is very reminiscent, as noted above, of the criticism that Sandra Day O’Connor has leveled.

That’s  not to say we’re at the end of history and we just need some great balancing act from now on. In some areas surely the liberals are wrong and in some conservatives are wrong. Not at all. just that not everything should be viewed through very liberal or very conservative prisms. And more to the point, we should not be asking what the Framers would do, but rather what the Framers wanted us to do. The Constitution only has meaning that we chose to give it. We are the ones interpreting it. We are the ones who chose it as a means of governance. We have the responsibility of making the hard choices – and that’s why we have a Supreme Court.

I’d add more but Souter’s speech speaks for itself. I second Andrew Cohen in decrying the lack of attention it has received.

Written by John Whitehouse

June 1, 2010 at 12:00 pm

In Which I Disagree With Bill Keller

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The son of Ethan Bronner, the Jerusalem Bureau Chief of the New York Times, has enlisted in the Israeli Defense Forces (IDF). Clark Hoyt, the public editor of the NYT called for Bronner to be reassigned; in response, the executive editor, Bill Keller defended Bronner and said no change would be made.

Keller makes two arguments. First, he concedes that while sometimes personal connections require restrictions (a court reporter will not cover a trial if his wife is one of the attorneys). But then he gives a litany of examples where personal knowledge helps: an Afghanistan reporter who is an ex-Marine, a reporter from Lebanon who reported on the Israeli invasion of Lebanon, and a Tehran reporter who was exiled from the country. There are two problems here: First, Bronner’s son is the one with personal knowledge, now Bronner himself. Second, these other examples of experience are past experience, not ongoing experience. But the salient point is that even if Keller is right and this does inform Bronner’s reporting (which is entirely possible), is that outweighed by a conflict of interest? Therein lies the real issue.

Keller argues:

You and everyone you interviewed for your column concurs that Ethan Bronner is fully capable of continuing to cover his beat fairly. Your concern is that readers will not be capable of seeing it that way. That is probably true for some readers. The question is whether those readers should be allowed to deny the rest of our audience the highest quality of reporting.

This is what Hoyt wrote:

“There are always two questions,” Shipler said. “One is whether there is an actual conflict; the other is whether there is the appearance of a conflict. Given the high quality of Bronner’s reporting, I don’t see an actual conflict.” He said he thought Bronner should remain in his post and The Times should disclose the situation. Keller and Bronner responded freely to my questions, but the paper has otherwise been tight-lipped so far.

Alex Jones, director of Harvard’s Shorenstein Center on the Press, Politics and Public Policy and a former Pulitzer Prize-winning reporter for The Times, took a different view. “The appearance of a conflict of interest is often as important or more important than a real conflict of interest,” he said. “I would reassign him.” Jones said such a step would be an injustice to Bronner, “but the newspaper has to come first.”

Hoyt does not discuss more why apparent conflicts of interest matter so much. But to me, this is a large problem.

This is what the relevant NYT ethical guidelines say:

107. To avoid such conflicts, staff members may not write about people to whom they are related by blood or marriage or with whom they have close personal relationships, or edit material about such people or make news judgments about them. For similar reasons, staff members should not recruit or directly supervise family members or close friends. Some exceptions are permissible — in a foreign bureau, for instance, where a married couple form a team, or in the case of an article by a food writer profiling her brother the Yankee star, where the kinship is of genuine news interest.
109. In some cases, disclosure is enough. But if The Times considers the problem serious, the staff member may have to withdraw from certain coverage. Sometimes an assignment may have to be modified or a beat changed. In a few instances, a staff member may have to move to a different department — from business and financial news, say, to the culture desk — to avoid the appearance of conflict.
Bill Keller, in essence, is arguing that appearances of conflicts are not important and should be only acted upon if there is some sort of grave appearance of conflict.  I disagree.  No one, including myself, wants to impugn the credibility of Ethan Bronner. But that is why rules regarding an apparent conflict of interest matter. If nine out of ten reporters in Bronner’s position would maintain their integrity and would act responsibly, that’s not enough. Appearance of conflict of interest rules exist not just to assure readers that there is integrity, but to prevent reporters from being in a compromising position. In short, you don’t want to realize that Bronner can’t maintain his integrity too late. If that is unfair to Bronner, that’s the risk of having such a high standard of reporting as the NYT aspires to.
To argue otherwise is not to give a veto power to extremists. It’s to protect the reporting at the expense of the reporters. Reading Keller’s entry with its triumphant descriptions of various NYT reporters, I wonder if Keller made an understandable but real mistake of valuing the reporters over the reporting.
That all said, I would also agree with Hoyt’s assessment, that “[t]he Times sent a reporter overseas to provide disinterested coverage of one of the world’s most intense and potentially explosive conflicts, and now his son has taken up arms for one side.” At most, I can see Bronner still being allowed to cover the conflict in some capacity, but allowing him to stay as the Jerusalem Bureau Chief is a bridge too far.

Written by John Whitehouse

June 1, 2010 at 7:36 am