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Though I follow a number of lawblogs, I missed a rather interesting Supreme Court decision until reading about it on the blog of entrepreneur Mark Cuban. For reasons understandable to those who follow Cuban, he has a Google alert for “prosecutorial misconduct,” which yields more results than one would like.

It led him to Michael Dorf’s FindLaw essay “Did the Supreme Court Recognize an Innocent Person’s Right Not to Be Executed?”

“What,” you may be asking yourself, “such a right doesn’t exist already?! They find stuff emanating from penumbras and they haven’t found this one yet?!”

Nope:

In 1993, in Herrera v. Collins, the Supreme Court raised, but did not ultimately decide, the question whether it would violate the Constitution to execute an actually innocent person. Acknowledging an “elemental appeal” to the claim that the Constitution forbids executing the innocent, the Court nonetheless left open the question whether, “in a capital case a truly persuasive demonstration of ‘actual innocence’ made after trial would render the execution of a defendant unconstitutional.” Even if such a demonstration would indeed render an execution constitutionally forbidden, moreover, the late Chief Justice Rehnquist said for the Court, “the threshold showing for such an assumed right would necessarily be extraordinarily high.” Finding that Herrera’s proffered evidence did not satisfy this standard, the Court denied relief in that case.

But, in a case decided August 17 involving a man on death row for murdering a cop, convicted on evidence that has since been recanted and with substantial new evidence pointing to the state’s star witness as being the actual killer,

Yet despite national and international attention–including pleas by former Georgia Governor and U.S. President Jimmy Carter, former Georgia Republican Congressman and federal prosecutor Bob Barr, and even Pope Benedict–neither the Georgia courts nor the Georgia Pardons and Parole Board has seen fit to stop Davis’s execution.

Last week, the Supreme Court offered Davis a ray of hope. In response to his petition for a writ of habeas corpus, the Justices ordered that a federal district court in Georgia “should receive testimony and make findings of fact as to whether evidence that could not have been obtained at the time of trial clearly establishes [Davis's] innocence.”

A key excerpt from the dissent:

This Court has never held that the Constitution forbids the execution of a convicted de-fendant who has had a full and fair trial but is later able to convince a habeas court that he is “actually” innocent. Quite to the contrary, we have repeatedly left that ques-tion unresolved, while expressing considerable doubt thatany claim based on alleged “actual innocence” is constitutionally cognizable.

Now, as a practical matter, there is no such thing as innocence in the eyes of the law.  A person is either found guilty or acquitted.  And we obviously don’t want to routinely retry cases on the basis of the convict’s assertions of innocence.  After all, if the population at Shawshank is any indication, they’re all innocent.  Once convicted, the burden of proof for presenting new evidence of innocence ought reasonably be high.

But, surely, the basic idea of justice precludes the state from knowingly executing someone for a crime they didn’t commit?

In my early morning Teddy Kennedy Dead at 77 media roundup post, I observed, “That the Chappaquiddick scandal didn’t make the first several paragraphs — or even first page — of several of these obits is quite remarkable. It would be like writing an obit for Richard Nixon that didn’t mention Watergate or one for Michael Jackson that glossed over repeated allegations of pedophilia.”

Hanna Rosin expands on that point quite a bit, including implicitly pointing out that it was a rather large elephant in the room:

Google Trends this morning is a perfect window into our tabloid culture and the recesses of our depraved minds. While the papers are full of words like “dynasty” and “legacy,” Mary Jo Kopechne, according to Google Hot Trends, is uppermost in our thoughts. Her name comes up as number one in the ranking, and several more places on the list, misspelled. Chappaquiddick shows up high and often, too; once correctly, and then in several illiterate incarnations.

Partly, I blame this discrepancy on the American papers, which are still bent on hagiography. I prefer British obituaries, which tell it like it is. And partly, of course, this is the fault of our vapid tabloid culture. The only surprise today is that Kate Gosselin has been knocked back all the way to number 30. “Michael Jackson alive” is a popular trend. Yeah. Jamming with Elvis.

Finally, there is the issue of the obvious narrative the papers are not stringing together. In my mind, I’ve always equated Ted Kennedy with Chuck Colson, the disgraced Nixon aide who went on to found an admirable Christian organization called “Prison Fellowship.” Public officials who do terrible things and then say they’re sorry (often in a press conference or book) are a dime a dozen. But the ones who do something terrible and then repent indirectly in the form of a lifetime of dedicated public service are rare. Colson and Kennedy are just about the only two I can think of.

Mary Jo Kopechne is on our minds because this narrative about Ted Kennedy makes sense, in some intuitive, appealing way. Kennedy killed a girl. That’s his rosebud. He made up for it partly by declining the ultimate glory of running for president, and choosing the more humble path—helping the underclass using the slow, steady machinery of the Senate.

Other than the fact that Kennedy actually did run for president — in a bitter primary battle with President Jimmy Carter in 1980 — that all strikes me as right. And, indeed, the Guardian obit covers this neatly in a single paragraph:

Kennedy’s career was significantly blighted by the Chappaquiddick incident of 1969 in which the car he was driving ran off a bridge and plunged into the water, killing his passenger Mary Jo Kopechne. While he never reached the pinnacle of power, Kennedy eventually shed his playboy image to become a serious political presence in the Senate. His death marks the twilight of a political dynasty and deals a blow to Democrats as they seek an overhaul of the healthcare system, one of Kennedy’s personal goals.

Teddy Kennedy lived an extraordinary life of tremendous accomplishment interspersed with some horrible scandals and family tragedy.  It’s why he was such a fascinating figure. But his story simply can’t be told without the word Chappaquiddick.

UPDATE:  E&P’s Sam Chamberlain tallied how far into the obits the first mention of the incident appeared:

NY Daily News- 13^th graf

Associated Press- 7^th graf

Boston Herald-  10^th graf

Boston Globe-  5^th graf

NY Times- 14^th graf

NY Post- 14^th graf

Washington Post-  9^th graf

Wall Street Journal-  6^th graf

LA Times-  12^th graf

Chicago Tribune-  12^th graf (same obit as LA Times)

Miami Herald-  10^th graf

Reuters- 18^th graf

USA Today- 19th graf

Politico- 24th graf

The Hill-NO MENTION

Roll Call-25th graf

National Journal-11th graf

Times of London- 8^th graf

In fairness, for a variety of reasons having to do with the printing and editing process from bygone days, a newspaper “graf” is often much shorter than a proper paragraph.  Still, the most notable single fact about Kennedy’s life was mentioned well after the average reader would have lost interest.

“I know folks think I’m a city boy, but I do appreciate listening to country music. It’s about folks telling their life story the best way they know how.” – President Barack Obama

Via Norm Geras, I see that the president hosted Alison Krauss, Brad Paisley, and Charley Pride as part of the White House Summer Music series.

“They grabbed the contemporary popular chart,” [Paisley] said, referring to himself. “They grabbed the artistic bluegrass side,” he continued, referring to Ms. Krauss. “And then they grabbed the legend side”: Mr. Pride, country’s most successful African-American performer, has had more than three dozen No. 1 country singles since the mid-1960s.

Mr. Paisley performed the title song of “American Saturday Night,” about the United States as a melting pot, and “Welcome to the Future,” which has a verse about race relations that starts with the recollection of a burning cross and concludes, “From a woman on a bus to a man with a dream/Hey, wake up Martin Luther.” He wrote it, Mr. Paisley said before the concert, after the 2008 election, when he was in New York City on election night and saw jubilation in Times Square. “It just felt like the world had shifted on a dime,” he said. “I wanted to encompass this big theme of how far we’ve come in a song.”

[...]

Mr. Pride has taken pains throughout his career to set aside racial considerations, describing himself as “an American singing American music.” He had performed for Presidents Ronald Reagan, Bill Clinton and Jimmy Carter.

“It’s always an honor,” Mr. Pride said.

Before the concert, he called President Obama “a very blessed man and a brilliant mind,” and saw a parallel between their careers. “There’s a similarity in what he has done and what I went through,” he said. He added that in his long career on the country circuit, there had “never been a hoot” or a racial epithet from his audiences.

These stories are not only entertaining but useful in reminding us of the continuity in American life that transcends politics.  I don’t know or much care about the political views of Pride, Paisley, or Krauss or even about the musical tastes of Obama.  None of it mattered last night.

And while there are obvious parallels in Pride and Obama as “firsts,” I’m willing to bet Obama never got traded for a used bus.

Former President Jimmy Carter quit the Southern Baptist Convention more than eight years ago because of its refusal to ordain women as pastors (rather odd, since the policy had been in place since the early seventeenth century origins of the Baptist faith based on the example of another follow with the initials J.C.).   To make sure people noticed — since he had long stopped having anything to do with the SBC — he sent out 75,000 letters.

Over the weekend, Carter apparently reckoned people forgot about this (and, I must confess, I had) he up and quit again, this time via op-eds in The Guardian and The Age. (The latter was published a week ago but, owing to the confluence of the International Date Line and a lot of famous celebrities dying, nobody in the United States noticed until yesterday.)

But I digress.  I bring this up not because I much care about Carter’s religion, having neither a dog in the fight nor interest sufficient to warrant exchanging a rodent’s hindquarters for his views on the subject, but rather because of the extraordinarily bizarre explanation given.

At its most repugnant, the belief that women must be subjugated to the wishes of men excuses slavery, violence, forced prostitution, genital mutilation and national laws that omit rape as a crime. But it also costs many millions of girls and women control over their own bodies and lives, and continues to deny them fair access to education, health, employment and influence within their own communities.

Now, I can’t vouch for Plains, Georgia.  But I’ve lived in plenty of communities where Southern Baptists predominated.  In all of them, prostitution and rape were against the law.  Girls went to school and the doctor.  Women had jobs and influence.  So far as I know, their genitals were intact.

The impact of these religious beliefs touches every aspect of our lives. They help explain why in many countries boys are educated before girls; why girls are told when and whom they must marry; and why many face enormous and unacceptable risks in pregnancy and childbirth because their basic health needs are not met.

But these aren’t countries run by Southern Baptists.  In rural Alabama and Mississippi, girls start and finish school at the same age as boys. Young women now outnumber young men in our colleges and universities.  Arranged marriages have never been part of our culture.  To the extent “their basic health needs are not met,” it’s because of poverty, not religious dogma.

In some Islamic nations, women are restricted in their movements, punished for permitting the exposure of an arm or ankle, deprived of education, prohibited from driving a car or competing with men for a job. If a woman is raped, she is often most severely punished as the guilty party in the crime.

In Southern Baptist towns in the United States, women show a hell of a lot more than their arms and ankles. They’re required to go to school up to age 16 and are strongly encouraged to graduate high school and go on to college.  Women work outside the home at tremendous rate.  Rape is abhorred and the rapist is severely punished, often in extracurricular fashion.

The same discriminatory thinking lies behind the continuing gender gap in pay and why there are still so few women in office in the West. The root of this prejudice lies deep in our histories, but its impact is felt every day. It is not women and girls alone who suffer. It damages all of us. The evidence shows that investing in women and girls delivers major benefits for society. An educated woman has healthier children. She is more likely to send them to school. She earns more and invests what she earns in her family.

A goodly number of Western countries (although, granted, none with large Southern Baptist populations) have women prime ministers and presidents.  In the United States, including the South, women governors, senators, and other high office holders were quite common long before Carter quit the Convention (the first time).  We’ve had three female Secretaries of State, a woman National Security Advisor, a woman Attorney General, a woman Secretary of Homeland Security.  We’ve had two women as vice presidential nominees and one who came close to getting a major party presidential nod.   Sarah Palin, despite rather little experience or demonstrated expertise, seems to be the enthusiastic favorite for the Republican presidential nomination among Southern Baptists.

There are plenty of reasons to pick nits with the Southern Baptists.  But the depredations of radical Islam are not among them.

Baptist photo by Flickr users djking under Creative Commons license.

Patrick Ruffini has used considerably fewer than 140 characters to make an interesting point: “Obama Health Care = Bush Social Security.”

The analogy is a strong one.

You will recall that President George W. Bush, fresh off re-election in 2004 pledged to use his “political capital” to pass a major reform of the Social Security system that included a private option.  Despite having a Republican majority in both Houses of Congress, the deal fell apart owing to united opposition from the Democrats and division among the Republicans.

Fast forward four years and we seem to be having a re-run.  Fresh off a historic election, President Obama pledged a massive reform of the health care system that included a public option.  Despite having a Democratic majority in both Houses of Congress, the deal seems to be falling apart owing to united opposition from the Republicans and division among the Democrats.

Rick Moran argues that “Obamacare” is floundering because Obama is taking his leadership cues from Jimmy Carter.

This president apparently doesn’t know how to govern. He has handed responsibility for getting this bill passed to Pelosi and Reid while he stands on the sidelines kibitzing.

Bottom line: No one is in charge. Committee chairmen have their own ideas about what should be in the bill while Blue Dogs and liberals are rejecting their formulations and want to substitute massively.

Then again, Bush had a plan and allowed himself to be the target of public criticism and still failed miserably.  It may simply be that massive reform efforts are ridiculously hard, especially once there’s an actual bill to shoot at.  There may be mass agreement in theory that we need to Do Something about the problem but there’s much less consensus on What To Do about said problem.  Republicans are mostly against the effort, both for ideological reasons and because killing Obamacare would seriously wound Obama politically.  Democrats, meanwhile, are going to either be disappointed that the bill doesn’t go far enough or think it goes to far.

DrewM. passes on Michelle Malkin’s post and column noting that the murder of abortion doctor George Tiller by a white “Christian” got scads more media commentary and more intense presidential attention than did the murder of Private William Long and maiming and attempted murder of Private Quinton Ezeagwula by a black “Muslim.”

It’s a fair point and very much worth noting that there are craziest on both sides.

At the same time, the first shooting naturally fit into an ongoing storyline whereas the second seemingly comes out of the blue.  Malkin’s done yeoman work over the years in rounding up little-reported incidents by leftist extremists targeting American troops but it remains a tiny, disaggrated fringe movement whereas the anti-abortion movement is massive and even its extreme elements, like Operation Rescue, are rather large and public.

Nutcases aside, there’s been a loud and bitter debate over abortion going on since at least decision in Roe v. Wade some thirty-six years ago. So, naturally, when an abortionist gets murdered, there’s a ready frame into which to plug stories, sidebars, and commentaries.  Columns from 1986 can be dusted off and re-run by changing a few names and throwing in a new quote or three.

By contrast, those who genuinely dislike American soldiers are so far into the lunatic fringe that they’re not part of the public debate.  Just about every liberal male politician over the age of 50 — John Kerry, Jimmy Carter, Michael Dukakis, Al Gore, George McGovern, Ted Kennedy, Charlie Rangel — served in the military.  Hell, so did Jeremiah Wright.

To be sure, there are liberals who hate the way our military is used.   Others hate Don’t Ask, Don’t Tell.  But, by and large, those are handled as debates over public policy.  It’s presidents who are the object of that wrath, not American soldiers.  Indeed, when someone dares criticize soldiers — as in the General Betray Us flap — they’re roundly slapped down, even by other liberals.

All that said, I agree with Michelle on the much narrower points.  Yes, President Obama should have said something about the recruiting station incident, especially after his comments on the Tiller murder.  He’s commander-in-chief, after all.  And it would have been good politics, too, earning credit for taking on left-wing crazies without alienating a significant part of his coalition.

And, yes, the press should have used the occasion of the latest shooting to point out that this was not a totally isolated incident.  The press really needs to get beyond its tired story frames and do broader reporting more often.

Photo by Flickr user DRB62 under Creative Commons license.

A couple weeks back, I wrote a post called “Souter Retiring?“  The speculation was apparently well founded, as several outlets are now reporting that Justice David Souter will in fact step down at the end of the current session in June.

NPR’s Nina Totenberg makes the interesting observation that, “At 69, Souter is nowhere near the oldest member of the court. In fact, he is in the younger half of the court’s age range, with five justices older and just three younger. So far as anyone knows, he is in good health. But he has made clear to friends for some time that he wanted to leave Washington, a city he has never liked, and return to his native New Hampshire.”

Additionally, she’s undoubtedly correct that “Factors in his decision no doubt include the election of President Obama, who would be more likely to appoint a successor attuned to the principles Souter has followed as a moderate-to-liberal member of the court’s more liberal bloc over the past two decades.”  Further, he wanted to make sure no one else was going to retire and create the chaos of two vacancies.

Of course, as Peter Baker and Jeff Zeleny note for NYT, this will be President Obama’s first chance to appoint a Justice (something, incidentally, that Jimmy Carter never got).   I think they’re basically right that, with a very strong Democratic majority in the Senate and the fact that Souter is arguably the most liberal member of the Court should combine to make this relatively smooth.

William Jacobson, though, points to an odd procedural twist in the Senate rules by which “ironically, Specter’s defection may give Republicans the ability to filibuster judicial nominees at the Judiciary Committee level, so the nominees never get out of committee.”  Essentially, at least one member of the minority party must agree to end debate in the committee and, now that Specter is a Democrat, that leaves nothing but conservative Republicans: “Orrin Hatch, Chuck Grassley, Jon Kyl, Jeff Sessions, Lindsey Graham, John Cornyn, and Tom Coburn.“   Presuming Obama doesn’t appoint a Lani Guinier type, which would be out of character, my guess is that this proves no more contentious than, say, the Alito confirmation.

Souter is, by all accounts, a decent man and a good public servant.  He was, alas, one of the great disappointments of the George H.W. Bush presidency.  To be sure, Bush was a mainline Republican rather than a Movement Conservative, but Souter wound up substantially to the left of where he was expected to be.  They often do.

It’s also fascinating that a 69-year-old in good health is below the median agewise on the Court and that neither 89-year-old John Paul Stevens  nor 76-year-old Ruth Bader Ginsburg, who is battling pancreatic cancer, even seriously considered retirement.  Then again, Supreme Court Associate Justice is probably the best job in American government, combining interesting work, extraordinary power, relative anonymity, and immense job security.

The juxtaposition of two headlines this morning at memeorandum was rather amusing:

As it turns out, Michael Shear’s “An Early Military Victory for Obama” and Shailagh Murray’s “Obama’s Chief of Staff Grants Access, Gets Results” are unrelated stories combined through the vagaries of automated selection algorithms.  Indeed, the inside headline on the latter is actually “Give-and-Take With Emanuel Advances President’s Agenda – Lawmakers Respond to Improved Access to White House” (the other is the page title that will be found by search engines and aggregators).

Still, the pairing is apt.  President Obama did what any president would have done: authorized the Navy to use deadly force (i.e., kill people) if they deemed Maersk Alabama captain Richard Phillips to be in mortal danger.  They did and they did.  (To paraphrase Maverick, “I had the shot.  There was danger, so I took it.”)

So, what’s the headline?  “When You Mess With the Best, You Die Like the Rest”?   No, it’s “An Early Military VIctory for Obama.”

[T]he result — a dramatic and successful rescue operation by U.S. Special Operations forces — left Obama with an early victory that could help build confidence in his ability to direct military actions abroad.

His strategic acumen was demonstrated thusly:

[A]fter a National Security Council telephone update, Obama granted U.S. forces what aides called “the authority to use appropriate force to save the life of the captain.” On Saturday at 9:20 a.m., Obama went further, giving authority to an “additional set of U.S. forces to engage in potential emergency actions.”

A top military official, Vice Adm. William E. Gortney, commander of the Fifth Fleet, explained that Obama issued a standing order that the military was to act if the captain’s life was in immediate danger. “Our authorities came directly from the president,” he said. “And the number one authority for incidents if we were going to respond was if the captain’s life was in immediate danger. And that is the situation in which our sailors acted.”

Obama to Navy:  “Do your job.”

Nonetheless, it may help to quell criticism leveled at Obama that he came to office as a Democratic antiwar candidate who could prove unwilling or unable to harness military might when necessary.

Granted, reading the comment thread on Dave Schuler’s post about the freeing of Phillips, there are people who harbored this doubt.  But has there been a president in American history who hesitated to authorize force in a situation like this?   Jimmy Carter authorized the ill-fated Desert One rescue of the Iranian hostages.  Bill Clinton ordered the Somali warlord-hunting mission that led to the infamous Black Hawk Down incident.   Both caught flak for the failure of those missions.   But of course Obama was going to authorize action — at the discretion of the professionals on the scene — to save the life fo the captain.  To have done otherwise would have been morally unconscionable and politically suicidal.  I can’t imagine it ever crossed his mind to say No.

UPDATE:  Brendan Nyhan obseves,

I’m sure the Obama White House did not require much persuasion to leak word of the President’s role in approving the successful anti-pirate operation off the coast of Somalia, but I’m going to guess they won’t be so quick to take credit the first time some military operation goes bad. As the administration will soon learn, the president is largely a prisoner of circumstance when it comes to external events like this. The flip side of taking credit for good news is that you’re more likely to be held responsible for bad news.

Quite right.  Then again, he’d likely be held responsible, anyway.

UPDATE 2: Nate Hale, writing in the Washington Examiner, shares my initial take:

To be fair, President Obama made the right call, giving his commanders the authority to act swiftly–and decisively–to end the hostage standoff, when the opportunity presented itself.  But the successful rescue of Captain Phillips was hardly a triumph of executive decision-making from the White House situation room.  Instead, the real credit should go to the field-grade officer who accurately assessed the situation and gave the order to fire–and to the SEALs who took out their targets with customary efficiency.

UPDATE 3: Andrew Exum’s feeling vindicated.

“Americans fall into two distinct categories today: those who remember how devastating the policies of Jimmy Carter were, and those who are about to find out.” – Ron Hart

The column declines somewhat after that.

via Nick Gillespie

Meet the new boss — same as the old boss:

In a closely watched case involving rendition and torture, a lawyer for the Obama administration seemed to surprise a panel of federal appeals judges on Monday by pressing ahead with an argument for preserving state secrets originally developed by the Bush administration.

In the case, Binyam Mohamed, an Ethiopian native, and four other detainees filed suit against a subsidiary of Boeing for arranging flights for the Bush administration’s “extraordinary rendition” program, in which terrorism suspects were secretly taken to other countries, where they say they were tortured. The Bush administration argued that the case should be dismissed because even discussing it in court could threaten national security and relations with other nations.

During the campaign, Mr. Obama harshly criticized the Bush administration’s treatment of detainees, and he has broken with that administration on questions like whether to keep open the prison camp at Guantánamo Bay, Cuba. But a government lawyer, Douglas N. Letter, made the same state-secrets argument on Monday, startling several judges on the United States Court of Appeals for the Ninth Circuit.

“Is there anything material that has happened” that might have caused the Justice Department to shift its views, asked Judge Mary M. Schroeder, an appointee of President Jimmy Carter, coyly referring to the recent election.

“No, your honor,” Mr. Letter replied.

Judge Schroeder asked, “The change in administration has no bearing?”

Once more, he said, “No, Your Honor.” The position he was taking in court on behalf of the government had been “thoroughly vetted with the appropriate officials within the new administration,” and “these are the authorized positions,” he said.

This will, I wager, not be the last time that the change in administration has no bearing.  Being responsible for national security is rather different from commenting on it from the outside and entering office tends to make presidents conform to their new role.

Others are more surprised.   Even some Obama supporters are letting him have it.

Glenn Greenwald titles his long post on the matter “Obama fails his first test on civil liberties and accountability — resoundingly and disgracefully.”

What makes this particularly appalling and inexcusable is that Senate Democrats had long  vehemently opposed the use of the “state secrets” privilege in exactly the way that the Bush administration used it in this case, even sponsoring legislation to limits its use and scope.  Yet here is Obama, the very first chance he gets, invoking exactly this doctrine in its most expansive and abusive form to prevent torture victims even from having their day in court, on the ground that national security will be jeopardized if courts examine the Bush administration’s rendition and torture programs — even though (a) the rendition and torture programs have been written about extensively in the public record; (b) numerous other countries have investigated exactly these allegations; and (c) other countries have provided judicial forums in which these same victims could obtain relief.

Kevin Drum: “So Obama is adopting the same expansive interpretation of the privilege as the Bush/Cheney administration, and using it in order to cover up American involvement in torture and rendition programs that have been in the public record already for years and can hardly even be said to be secrets, let alone state secrets that are vital to U.S. national security. This is decidedly not change we can believe in.”

Armando Llorens (Big Tent Democrat): “Holder and the Obama Administration are BSing us on this issue. Unlike some, I believe that there are appropriate situations for application and invocation of the state secrets privilege. I think it serves an important function. The Jeppesen case is about as far a case as one could imagine where the invocation of the state secrets privilege can possibly be deemed appropriate.”

Andrew Sullivan:  “This is a depressing sign that the Obama administration will protect the Bush-Cheney torture regime from the light of day. And with each decision to cover for their predecessors, the Obamaites become retroactively complicit in them.”

Thoreau: “The machine is on autopilot, and nobody who wears that Ring is going to toss it into the volcano.”

Cernig: “Thus, the Obama administration collectively become accessories to the Bush administration’s crimes. In my opinion, any cabinet member who had an ounce of spine and an ounce of belief in the rule of law for all would resign over this travesty of justice. Watch for an utter lack of that.”

Ron Chusid calls this a  “disappointing move” but argues “While I disagree with what appears to be a general policy from Obama to avoid prosecution based upon the crimes of the Bush administration, this still does not place Obama on the level of those in the Bush administration which actually committed these acts. We can be disappointed in this decision by the Obama administration to hinder prosecution for past acts while still applauding their decision to refrain from such actions in the future.”

Daren Hutchinson points out that, “If the Obama administration wished to drop the policy in this particular case, it would have done so prior to today’s oral arguments. Most lawyers, however, do not shift positions in order to lose a case. Furthermore, the privilege can help secure victories in future cases; accordingly, DOJ will continue asserting it.”  He adds, “The DOJ’s position is less about creating a wall of governmental secrecy; instead, it represents a powerful litigation strategy. Although acceptance of the privilege by courts results in the dismissal of anti-torture litigation, very few lawyers would forgo such a powerful strategic device.”

That strikes me as exactly right.  Obama’s president now.  He has ostensibly discontinued the policy of “extraordinary rendition,” the extent of which we will likely never know.  But he’s neither going to compromise national security secrets nor give away potentially useful presidential powers now that he’s in the White House.  I’m surprised anyone’s surprised by that.

Andrew Sullivan has a powerful piece on the state of American conservatism, especially its alliance with the Republican Party.  Two key excerpts from a very long piece:

In contemporary America, the right is now in an almost parodic state of ideology. There isn’t just a rigid set of beliefs, indifferent to any time or place (e.g. tax cuts are right in a boom and a recession, in surplus and debt); it is supported by a full-fledged organization or “movement”; this “movement” generates journals and magazines and blogs designed fundamentally to buttress the cause; and the most salient distinction discussed in these circles is between those who are for the cause and those against it (with particular scorn for any dissidents).

[...]

One reason I admire Oakeshott is simply his understanding that the two deepest impulses in Western political thought – the individualist and the collectivist – need each other to keep our polities coherent. He, like me, preferred the individualist, and so my own leanings are toward smaller government, lower taxes, balanced budgets, individual freedom and prudent strength in foreign policy. But I also see when the alternative might be needed. There are times when the government does indeed need to make a big infrastructure investment or beef up its security technology or address an emergent and vital threat to a settled way of life, like climate change or Jihadist terror. Finding the best way for government to act at those times is a pragmatic and often difficult task; but I have no issues with such action. Government exists in some measure to provide a collective response to a newly felt need.

The first part of that strikes me as exactly right. Too much of today’s conservatism is based on litmus tests stuck in the 1980 campaign against Jimmy Carter.   If conservatism is about preserving a precise set of policies now thirty years out of phase, then it’s a dying movement.

The flip side of that, though, is in the second paragraph cited above and Andrew’s general sense of issue-and-time-dependent policy analysis.  Yes, hard choices must be made and desperate times sometimes call for desperate measures.   Still, if conservatism is nothing more than a Potter Stewartesque “I know good policy when I see it” feeling, then it’s neither an ideology nor in any sense conservative.

While conservatism, like any ideology, should be organic and evolve over time, avoiding being mired in programatic dogma, it should still hue to principles that abide over time.  Andrew’s list — smaller government, lower taxes, balanced budgets, individual freedom and prudent strength in foreign policy — isn’t a bad one, so long as they’re considered preferences or instincts rather than absolutes.

Some examples from the longer essay:

[A] conservative should have no objection to major pragmatic attempts to prevent this depression taking on a life of its own and perpetuating pain more than necessary.

True. But a conservative should 1) be incredibly skeptical of government’s ability to do so and 2) be mindful of longer term consequences of policies enacted in the effort.

[I]t might even be the case that the vastly growing social and economic inequality of the last three decades could justify redistribution via spending or taxes. The point is to sustain social order by buttressing the middle class – a conservative objective if ever there was one – not to construct an abstract notion of a just society.

Helping the poorest amongst us is a conservative value.  Socially engineering a leveled society?  Not so much.

I don’t see the attempt to roll back all legal abortion after forty years of Roe as a conservative move. It’s a counter-revolutionary one.

As a pragmatic matter, I don’t see abortion rollback as feasible, let alone a smart plank around which to try to win elections.  But working to protect innocent lives is absolutely a conservative principle — if not its most fundamental one.   This doesn’t mean dogmatic insistence that a fertilized egg is a human being, crass behavior towards desperate teenagers trying to enter abortion clinics, or, goodness knows, murdering doctors.  Conservatism is about behavior, not just policy outcomes.

Andrew’s larger essay is well worth the read. It includes a bevy of links to debates and other writing on the subject, too.

In response to my comment about Barack Obama taking office during “troubled times,” Charles Austin retorts:

Not to diminish or belittle the very real problems for folks who find themselves on the wrong side of the various bubbles out there, but if these are troubled times, then we really do have it pretty good. Has everyone forgotten the late sixties and seventies? Does Iraq really look like Vietnam? Does George Bush remind you of Jimmy Carter? This doesn’t feel anything like those days at all. The difference now is that our Oprahfied populace’s first reflex is to claim victimhood and seek an ever larger government to insulate them from being responsible for themselves.

If you are old enough to remember compare the evening newscasts of 1969 and 1979 to those of 2008. Which has changed more, the times or the reporting of the times?

I’ve said much the same thing in previous posts. I fully agree that Iraq is not Vietnam, our much-bemoaned political polarization is tepid, indeed, compared to the 1960s, and my own sense of the current economic mess is that it’s not as bad as the stagflation of the 1970s.

Having heard it said, repeatedly, by people with credibility on the subject that this is The Worst Economic Downtown Since the Great Depression^TM, I’ve reluctantly come to accept that as true.  It certainly looks to be a bigger systemic calamity.    Still, inflation is under control, interest rates are at historic lows, and even unemployment is reasonably low.

Perhaps some perspective is in order, then. As the great social commentator Barry McGuire described the situation in July 1965, mere months before I was born, it was quite grim.  We were, quite literally, on the eve of destruction:

The eastern world, it is exploding
Violence flarin’, bullets loadin’

This remains the case today. Tie.

You’re old enough to kill, but not for votin’
You don’t believe in war, but what’s that gun you’re totin’

Now, not only are the age for killin’ and votin’ the same (18) but we have an all-volunteer force and even allow for conscientious objectors to get out of fightin’ after they’ve volunteered.

And even the Jordan River has bodies floatin’

I’ve seen no reports of this, so presume it’s no longer the case. Advantage: Now.

If the button is pushed, there’s no runnin’ away
There’ll be no one to save, with the world in a grave

This remains true. However, the demise of the Soviet Union and end of the Cold War has markedly decreased the likelihood of such an eventuality. Advantage: Now.

Handful of senators don’t pass legislation

Still true and more frequent. Advantage: Then

And marches alone can’t bring integration

McGuire misapprehended the situation. Integration was indeed achieved. Advantage: Now.

This whole crazy world is just too frustratin’

So true. Tie.

Overall, you’d have to agree, we’re in much better shape now.

In its quadrennial no-brainer, TIME has named Barack Obama its Person of the Year. Oddly, it takes several paragraphs of throat clearing to get to anything like making a case for the choice:

As Obama has moved with unprecedented speed to build an Administration that would bolster the confidence of a shaken world, his flash and dazzle have faded into the background. In the waning days of his extraordinary year and on the cusp of his presidency, what now seems most salient about Obama is the opposite of flashy, the antithesis of rhetoric: he gets things done. He is a man about his business — a Mr. Fix It going to Washington. That’s why he’s here and why he doesn’t care about the furniture. We’ve heard fine speechmakers before and read compelling personal narratives. We’ve observed candidates who somehow latch on to just the right issue at just the right moment. Obama was all these when he started his campaign: a talented speaker who had opposed the Iraq war and lived a biography that was all things to all people. But while events undermined those pillars of his candidacy, making Iraq seem less urgent and biography less relevant, Obama has kept on rising. He possesses a rare ability to read the imperatives and possibilities of each new moment and organize himself and others to anticipate change and translate it into opportunity.

The real story of Obama’s year is the steady march of seemingly impossible accomplishments: beating the Clinton machine, organizing previously marginal voters, harnessing the new technologies of democratic engagement, shattering fundraising records, turning previously red states blue — and then waking up the day after his victory to reinvent the presidential-transition process in the face of a potentially dangerous vacuum of leadership.

Of course Obama is the Person of the Year.    For one thing, he got elected president, which almost always gets you the nod.  George W. Bush won in both 2000 and 2004.  Bill Clinton in 1992.   George H.W. Bush lost out to “The Endangered Earth” in 1988 but got a makeup in 1990,  Ronald Reagan won in 1980.   Jimmy Carter in 1976, Richard Nixon (along with Henry Kissinger) in 1972, and Lyndon Johnson in 1964.   John Kennedy was passed over in favor of “U.S. Scientists” in 1960 but got it in 1961.   Harry Truman won in 1948.  Franklin Roosevelt won in 1932, 1934, and 1941.

Since the award was established in 1928, the presidents who have been snubbed include:  Herbert Hoover and  Dwight Eisenhower.   That’s the list.  And Ike had won the honor as a general in 1944.  Richard Nixon didn’t win it upon winning the office, either, although he shared the award upon re-election (albeit for the China opening).

Even aside from tradition, Obama deserved the award.  He dominated media coverage for a whole year.  Other contenders — Michael Phelps, Sarah Palin, and Henry Paulson — were in the spotlight for a short time.

Beating Clinton and overcoming the barriers of inexperience and racial prejudice to win the presidency were remarkable achievements and his transition has thus far been superb.   Given the troubled times in which he’s taking office, he’s got every opportunity to repeat.

On January 23, 1980 President Jimmy Carter enunciated what became known as the Carter Doctrine. He stated, “An attempt by any outside force to gain control of the Persian Gulf region will be regarded as an assault on the vital interests of the United States of America, and such an assault will be repelled by any means necessary, including military force.” To give this commitment meaning, the United States began a military buildup in the region that ultimately led to the creation of Central Command, which now has responsibility for fighting the wars in Iraq and Afghanistan.

The Carter Doctrine came about during the period of the “Big Red Arrow” Soviet threat. Readers of a certain age will remember seeing scary maps back then. A big red arrow originating in Soviet Central Asia, plunging through Afghanistan and toward Iran. A second red arrow originated in Ethiopia and shot up into South Yemen, aimed at Saudi Arabia. This was the context of the significant increase in American military presence in the Middle East.

This transformation was significant. Traditionally, the United States had been pretty hands off in the Middle East. Though the United States recognized Israel immediately after its founding, Israel received more aid from other countries for a generation. Massive financial aid to Israel and Egypt only began following the Camp David Accord during the Carter Administration. Otherwise, the United States had always been willing to remain at arm’s length from developments.

Nearly 30 years later, by a combination of inertia, mission creep, and ill-considered friendships, the United States now finds itself deeply enmeshed in politics throughout the Middle East and South Asia. It is time to reverse that trend. Fundamentally, we have made a key mistake in our relations with the Middle East — we have overstated the benefits of deep involvement and the costs of disengagement while systematically underestimating the risks associated with playing such a visible role in a politically unstable region. Challenging the Soviet threat was a credible basis for a greater role, the hodge-podge of half-considered issues we face today is not.

I have argued for a the United States to maintain a dramatically smaller “footprint” on the ground in the Middle East while actively seeking to reduce our “fingerprints” on policy developments in the region. The U.S. military is too active and too visible. American Embassies are too large. And in general, our role in region is too overwhelming. Poll after poll shows the same thing — The United States is blamed for many of the misfortunes of the region and is considered an aggressive, hostile, imperialist power. At this point, our active involvement is self-defeating.

If we were to limit our involvement, this would impact three issues directly: Radicalism, Oil, and Israel. Let me discuss each in turn.

The big issue for the United States today is the threat posed by radical and violent Islamist movements. I would argue that in this area we would reap the greatest benefits of a more detached policy. Simply put, during the Cold War we accepted a quid pro quo with “moderate” Arab rulers. In return for consistent anti-Communism we would allow them to scapegoat us for domestic repression largely aimed at Islamist groups. That policy worked all too well as over the past two decades the biggest change in the Islamist movement has been increased focus on the “far enemy” (i.e. the United States) and less on the “near enemy” (i.e. corrupt rulers at home). It was a bad bargain during the Cold War, and is an even worse one today. The United States simply can no longer allow hatred of us to serve a steam valve to reduce pressure on Middle Eastern rulers. If we are going to be closely associated with regimes in the region, we have to insist that they forthrightly and consistently defend that relationship with their own people. No more message segmenting. No more blame shifting.

On the reverse side, some argue that we cannot reduce our presence because that is what our enemies want. In short, they believe that to spite groups like al Qaeda we have to go against our own interests. As a matter of strategy, it is tremendously dangerous to allow your enemies to define your interests for you. If we allow al Qaeda to pick the time and place of our confrontations, we cede to them the initiative and choice of terrain. Just because AQ might consider Iraq or Afghanistan a central front does not mean we have to. Yes, they may indeed claim victory if we do retrench. But we cannot make American policy in response to AQ press releases. Reducing the visibility of the American role will reduce the viability of anti-American movements and do more to undermine groups like al Qaeda than anything else, even if it gives them the theme for a crowing video.

The second issue is oil. The U.S. presence in the Middle East does serve to reduce some of the risks associated with the Western world’s reliances on Middle Eastern oil. It does not lower the cost necessarily, but it may reduce some potential for volatility in supply. But the cost of this risk mitigation is tremendous. We pay for lowering the supply risk with increased risk of terrorist attacks, greater hostility from the Arab population, and the costs of men and materiel associated with military commitments. Are there other ways to reduce those risks? Of course there are. They include investments in alternative energy, oil exporation at home, better fuel efficiency from cars. Certainly those are costly measures in the short-run, but so is deep involvement in a volatile region. In the long-run, the calculus is easy. Energy independence is a strategic imperative.

The third issue is Israel. There are some in the United States who believe it is in America’s interests to play “whack-a-mole” against an ever-shifting set of potential enemies of Israel. Yesterday Iraq, today Iran, tomorrow Syria. Ultimately, though, Israel has nuclear weapons and is unlikely to be attacked by any state actor. Certainly, the United States has an interest — as does the entire international community — in preventing terrorist groups from acquiring nuclear weapons, but pursuing a non-proliferation agenda does not require unilateral commitment to the region. The other part of the Israel issue is the Israeli-Palestinian dispute. Here, I am more pessimistic than most. As long as the Israeli political system is fractured — there are 18 parties represented in the Knesset and the largest party has fewer than one quarter of the seats — and Palestinian political power is split between Fatah and Hamas and even factions within those movements — it is simply impossible to conceive of a lasting, broadly accepted peace. The more visible the American role in brokering such a broken peace, the more resentful enemies we are likely to see emerge. Israeli land-grabs will become American land-grabs in frustrated Palestinian perceptions. Palestinian corruption and violence become American corruption and violence in the minds of angry Israelis. Genuine peace is a fantasy, and before you can visualize hope, you need to recognize reality.

In short, the benefits we believe accrue from deep engagement are largely illusory, and the costs associated with retrenchment are smaller than most fear.

Image by Flickr user Stewf under Creative Commons license.