Submitted to a Candid World

On the morning July 7, 2005, when terrorist attacks on the London Tube claimed the lives of 52 British men and women, I had just tapped into the District Line at Earl’s Court on my way to work at Westminster.  As news of the attacks trickled through the communications lines, my train was stopped between stations, held, and eventually stopped at South Kensington, where TfL personnel ordered confused commuters off the train.  We weren’t told why - one official-looking fellow mentioned a “power surge” -  but by the time I walked to Parliament, the Uzis in the hands of the guards outside Portcullis House gave me all I needed to know.  This was no power surge.

Over the next week, I became immensely proud of the way the British people reacted to the tragedy.  Possibly because London had faced terrorism before, in the form of the IRA - hence the annoying lack of garbage cans on the nonetheless bizarrely pristine London streets - the nation rolled with the punch.  I was even told by one Londoner that this had been expected for some time.  Most importantly, and most impressively, the British people refused the temptation to, in the wake of tragedy, give in to anger, violence, xenophobia, and hatred.  At Prime Minister’s Questions the very next week, both parties came together to speak against blaming the atrocity on Muslims as a group, and to blast the extremist British National Party for trying to score cheap political points:

Robert Flello (MP, Labour): I, too, commend and praise the police and security services for their swift and effective identification of the evil extremists who brought death and misery to our streets last week. Will the Prime Minister join me, however, in condemning those right-wing extremists in the British National party, in Barking and elsewhere, who are cynically and sickly trying to exploit people’s tragedy, anguish and understandable anger over the barbaric attack in order to score cheap but dangerous political points? Does not the British National party shame itself and slur the word “British”?

Tony Blair (PM, Labour): I agree with my hon. Friend’s sentiments. If we are right in saying that these terrorist attacks are an attack on our way of life, it is most important to say that part of our way of life is tolerance and respect for other people of different races, religions and faiths. It is therefore particularly revolting for anyone to try to exploit these attacks for the purpose of racism.

What an important message, spoken at such an important time.  Going beyond Mr. Flello and Mr. Blair, to cave to xenophobia and appropriate tragedy to political gain is to give the terrorists what they want: a change for the worst in a democratic, civilized, freedom-loving people.  Terrorism succeeds not by death, but by playing upon our fears and bringing out the worst in all of us.

In our own situation, to invoke 9/11 to limit liberty, to turn misguided rage into misguided war, or to attack political opponents, is to hand terrorism a victory.  But if we respond to terrorism with the best in all of us, national tragedies can even become opportunities to strengthen democracy, by re-affirming our commitments to liberty and pluralism, in spite of sorrow, fear, and foes.

Alas for those of us who still haven’t gotten that message.

Unsurprisingly, I agree with the New York Times: especially if Iraq wants us out, it’s time to get out of Iraq. While I’ve previously wondered aloud about whether pulling out of Iraq is the right thing to do, especially since we knew (or would have known, absent a lying president and a complicit press corps) that going in that Iraq was a long-term commitment, when the rebuilding nation’s will comes into play, our task must inevitably narrow, lest our presence subtly transition from nation-building to occupation.

It’s also well past time that we transition from our futile and naive “democracy-building” mission back to focusing on our initial causus belli: fighting terrorism (remember that?). Especially If Obama plans to draw down troops but not entirely abandon the Iraqis - his plan incorporates residual forces tasked with derailing Al Qaeda - we can call this a “victory,” as long as “victory” is realistically defined.

That will mean abandoning the goal of building perfect democracy in Iraq.

While I acknowledge the honor and raw optimism - dare I say, the audacity of hope? - behind the pipe-dream of building lasting western democracy in Iraq, that goal was never realistic, and it completely failed to account for the importance that historical tradition plays in building democracy. Looking back on our own history, the Anglo-Saxon democratic model grew over the course of a thousand years, a thousand injustices, and a thousand sacrifices. The stunning realization that democracy is “the worst of all forms of government, except all the others that’ve been tried” is a realization bought by blood and the passage of time. Democracy never grows by fiat, it never grows without a fertile historical tradition, and if forced on a nation before its time, it’s never quite right. We need only look at Russia’s slow slide to despotism, and Algeria’s tragicomic early-90s democratic experiment, which ended with the election of an anti-democracy party. Without the proper historical soil, democracy just doesn’t “take”: while we needn’t abandon all hope on Iraq’s democratic experiment, we mustn’t expect it to work perfectly or quickly. It may yet work out, but we can’t “hold our breath.”

And here is John McCain’s problem. All of the experience in the world can’t save America, and can’t save Iraq, unless it’s applied to sensible goals. What we need from our next president is experience, yes, but experience plus perspective.

Every now and again, we law-talking guys get our moment in the sun, when one of the vague and bizarre doctrines probed only by academics is exposed to the unexpected, searching sun of publicity. AH! It burns, it burns! This month, it’s comity and private international law, collectively known as the conflict of laws.

Executive summary: fur’ners want to sue the first amendment away from us, courts are letting them, and that’s bad. Or, in more depth, some plaintiffs with ties to terrorism and militant Islam are using the comparatively weaker free speech protections of European nations to win libel suits that they couldn’t win in America, American courts are for some reason enforcing the judgments, and Joe Lieberman (I-Conn.) is right to be worried. He wants to pass a law requiring American courts to ignore foreign libel judgments if they wouldn’t fly under our first amendment, and I think he’s right on target. Our first amendment is not up for debate. As usual, skip to the rant if you want.

The Law

If a European manages to make their law of libel apply to an American defendant, they do it through a two step process, first by winning the case in Europe, and second, by asking an American court to give them money based on the judgment.

After all, winning a case isn’t everything. When you “win,” you don’t get money; you get a judgment, and you have to ask the court to help you collect on that judgment. Those steps blur when an American sues an American: they’re both in front of the court, and if the losing party runs, American police are right behind them. But when a foreigner sues an American, things get dicey, and cracks start to show in the two step process. Let’s go through them both.

First things amendment first. It’s very hard to win a libel case. The United States grants vast leeway to speakers when making impolite, impolitic, or even borderline libelous statements. If you want to sue someone for slandering you, the burden is on you to prove the offense: you have to prove that the allegation made against you was (1) not true, and (2) made with reckless disregard for the truth. N.Y. Times Co. v. Sullivan, 376 U.S. 254. If you’re a public figure, forget about it - you have to prove “actual malice” in addition to those. Hustler Magazine v. Falwell, 485 U.S. 46 (yes, that Falwell). Long story short, the United States prefers to let people say what they want to when they want to, and if they’re wrong, the truth will out. That’s why the marketplace of ideas is so vitally important - because it’s the only remedy afforded to a slandered individual in cases where “reckless disregard” or “actual malice” can’t be proven. Because of the value we place in the marketplace of ideas, some slander cases just won’t be won.

Comparably, it’s much, much easier to sue for slander, libel or other defamation torts in other nations. In the U.K. and most of Europe, the burden is instead on the speaker to prove accuracy. An American citizen living in Europe, then, might get sued for something they could’ve freely said in America, and that’s just tough. The more complicated case arises where an American citizen, sitting in America, makes a false statement that injures (perhaps through the internets) someone halfway around the globe. An aggrieved plaintiff sitting in, say, Australia can win a judgment (”you were slandered”), but they can’t enforce the bloody thing. After all, who’s going to enforce it? The Australian court and legal system only have jurisdiction over people in Australia, and the defendant’s not in Australia . The court system is powerless, and the plaintiff’s stuck with a meaningless piece of paper.

Unless they can ask American courts to enforce the judgment. And that’s a matter of comity. Comity is how a foreign plaintiff gets a domestic court to turn their judgment into the money they feel they’re owed. But foreign courts - in our Australian example, American courts - don’t have to enforce the judgment. Both the common law of comity and modern statutes permit our courts to ignore a foreign judgment if it was unfairly obtained, if it contravenes a fundamental public policy, or if it’s repugnant to the nation’s values. This is why America doesn’t have to enforce Sharia law verdicts, for example.

Similarly, faced with foreign libel judgments, courts routinely decline to enforce a judgment as requested, since to do so would supplant American first amendment jurisprudence, and its respect for free speech, with a foreign standard that may be surprising or cruel to the American defendant. Given these cases, courts have been known to ask the parties to settle, try to broker a compromise, or flat out say “no.” And that’s the way it should be. Our first amendment is our first amendment. An American citizen has every right to expect to be covered by the first amendment when speaking within their own country. While America ought to respect the world’s values, when it comes to our citizens, our Constitution comes first.

The Rant

Free speech is one of our most vitally important values. When other nations ask us to compromise that value with regards to an act done by an American on American soil, and only affecting a foreigner in the abstract, the answer should be a categorical no, especially because established principles of comity allow us to do so easily without running afoul of treaty obligations or the reasonable expectations of foreigners doing business with Americans. American law for American citizens. Not too complicated.

Further, free speech is one of our greatest contributions to the idea of democracy. While other nations have opted to trade free speech for safety and comfort - Germany, for example, will jail you for speaking favorably of Hitler, or denying the Holocaust - we’ve somehow managed to get along by tolerating some truly despicable ideas, and trusting our citizens to sort the good out from the bad. The free, unrestricted marketplace may not always work, but it works for now, and as long as we still think it’s worth defending here, we ought not compromise it for the sake of those who may not understand why it works. While I’m not always okay with spreading democracy vis armae, by fire and war, spreading democracy by being a shining beacon to the world, and proving day-by-day that liberty works, is not only fine by me, it’s what I think of as our quintessential mission.

Paradoxically, being that city-on-a-hill may force us to live with some truly filthy stuff. Declining to enforce foreign libel laws, and maintaining our moderate protections for untruthful speech, may make America the mecca of the raving lunatic, the one place in the world where the depraved have the freedom to say whatever awful thought comes to mind, and still dodge the long arm of the law. I say, fine. That’s the experimental system the Founders undertook to create, and while it’s by no means perfect, it’s better than the alternative.

We can’t cave on our fundamental concepts of liberty. If we were to redesign our internal legal system to jive well with the world, and maximize the reciprocal enforcement of judgments, we’d have to toss the jury system along with free speech. Commercial jury verdicts viewed with deep suspicion by some of our peers on the international stage, to the point that they have gone, at times, unenforced. After all, the foreign argument goes, what do commoners know of high matters of corporate finance and restructuring? Enough, I say, that I’m still sitting only two miles north of the beating heart of the global finance system.

I may not often agree with Senator Lieberman. And this may be the one time you see me speaking with hostility about non-Americans and foreign cultures. But this isn’t an issue of xenophobia or intolerance. It’s an issue of preserving American law for Americans. Senators Lieberman & Specter, pass the bill. I’ll be deeply disappointed in any Senator that votes against it. Defending free speech is not a partisan matter.

Wearable Wartime Atrocities, Brought to You by TownHall.com

Torture is the last resort of a desperate warrior, and not a particularly effective one at that. Of course, to some t-shirt manufacturers and their advertising partners at TownHall.com, it’s not as serious as it is funny (see right). To quote Bender, comedy is dead, but tragedy? Now that’s funny! While letting that idiocy speak for itself, let’s move on to the issue at hand…

The national debate on the issue of torture - a debate that’s smeared my fellow Rice graduate Alberto Gonzales, and left him hilariously unemployed - has largely centered on the issue of the morality of the act. Whenever we as a nation stoop to the level of our enemies, suborning reason to violence, we vitiate an element of the very values we seek to protect. Like a murderer in Harry Potter, we tear off a portion of our national soul. Opponents of torture clearly win on moral grounds.  Right, the counterargument goes, but let’s turn to the practical.  Surely desperate times call for desperate measures. If we could choose between suffering an intangible loss of the moral high ground, and the loss of three million lives - if we could torture an enemy combatant to find a “ticking bomb” somewhere in Manhattan - surely we’d opt to torture one individual rather than suffer armageddon.

That’s a tough rebuttal with no easy answer… until you realize the hollow, speculative nature of the hypothetical. No liberal, indeed no American, could ever oppose, on ethical grounds, an act of torture done to surely save the lives of millions. If the ethical calculus fell in exactly that manner - certain death and no torture, or certain salvation and torture - I submit that our hands would be tied. The needs of the many outweigh the needs of the one (© Spock).

However, that fact pattern never squarely presents itself, nor is it likely to. We can never know that torture will result in information, and (even more emphatically) we can never know that torture will result in the right information. England’s experience with the IRA unequivocally demonstrates that torture fails to produce reliable information, and instead radicalizes moderates in the opposition. While Jack Bauer may find himself in precisely this scenario every Wednesday at 9/8 Central, it just doesn’t happen in the real world: there are no ticking bombs, no quickly broken captives who happen to know all the details of whatever nefarious plot must be foiled, and no easy answers. If torture is only acceptable in a one-in-a-million hypothetical, our duty in debating the issue is to question the scenario rather than proceeding under a false framework.

Torture is wrong morally, and wrong practically. This is torture’s Kobayashi Maru. In debating against someone who supports torture, if placed in a factual scenario where defeat is inevitable (i.e., where torture starts to look reasonable), we should challenge the scenario before conceding defeat. While there may be (realistic) circumstances under which torture is justified, this just isn’t it.

There are two ways to interpret our national experiences in the war on terror, and the tragedies that have flowed from it both at home and abroad: we can blame Islam, or we can blame fundamentalism. Either militant fundamentalism is flawed, and causes tragedy and ignorance by blinding rational individuals and labeling all nonbelievers as less-than-human, or there’s something about Islam that makes militant fundamentalism, otherwise a benign construct, into something nasty.

I’m sad to say that a good deal of Americans have decided not to look up the funnel of abstraction for the culprit, but have instead settled on the easy way out: blaming Islam. That’s the only way I can explain “Christians” who somehow think it’s acceptable, and in line with their beliefs, to wish death on nonbelievers.

Even our rhetoric is still geared towards the acceptance of fundamentalist and militant non-Islamic religion. Take, for example, Campus Crusade for Christ. No, please, take it. Not even the temporal distance we have from the malignant and bellicose origins of the word “crusade” can excuse its use by an evangelizing organization to define its plans for the nonbelievers - “turning lost students into Christ-centered laborers,” indeed. That “Cru” is “appropriating,” “subverting,” “redeeming,” or “detoxifying” the word is no defense to the tactlessness of its use. We ought to be as offended by the implication of a “Crusade for Christ” as we would be by a “Campus Jihad for Allah.”

Militant religion - and indeed, any religion that demands the destruction, dehumanization, or subordination of nonbelievers or believers - is flat-out wrong. Intolerance isn’t invidious just when it’s done to us, and discrimination doesn’t become an offense to liberty just because a burka’s involved. Our fight against violent theocracy gives us the chance to recognize similar problems in our own society. Let’s not pass up the chance to build peace and liberty at home, while we build peace and liberty abroad.

The Electoral College doesn’t work. Setting aside its epic failure in the Great Litigators’ Election of 2000,[1] the College’s persistent problems are subtler and more invidious. It taints the American electoral process by effectively removing states and thereby voters from “play.” It drives down voter turnout. And without action, the problem is unsolvable.  While Barack Obama may yet remake the electoral map, he’ll only refocus attention on a different group of swing states. As long as the Electoral College continues to work the way it does, no candidate can break the “as go three states, thus goes the nation” paradigm.

Oddly enough, that the College is a problem is entirely uncontroversial. And yet, when someone in a position to change it is asked to take up the cause, the most frequent reaction is to throw up one’s hands in despair. After all, the College is a Constitutional issue, right? What can one Senator, one Governor, one Congressperson do? Obviously the only answer is, give up.

Wrong.  This easy way out, most recently taken by Governor Donald Carcieri of Rhode Island, who apparently thinks he’s legally required to take the coward’s route, misreads the law, misapprehends constitutional history, and derelicts the states’ duties to manage the College.  Managing the Electoral College is not a federal duty.  Our federal Constitution merely states that the election of the president will be governed by “a Number of Electors.”  In a pass-through to state law common throughout the Constitution, selection of those electors is committed to the sound discretion of the states.[2]  No federal authority holds a gun to the heads of state legislatures and demands that each state give all of its electors to the winner of the state’s popular vote.  If the several states have chosen that path, it’s by tradition and laziness.  Nothing else.

Which means that it’s up to the states, not the federal government, to fix the Electoral College.  And there is a way.  We have the technology, and it’s almost elegant in its simplicity.  Just have each state, on its own, give its electoral votes to the winner of the national, rather than statewide, popular vote (more detail here).  Once states amounting to 270 electoral votes adopt the measure, the job is done.  No constitutional convention, not even any federal law.  Just state-by-state lobbying.

When governors like Carcieri refuse to enact the NPV solution, and demand that NPV activists turn to federal lobbying, they’re not just taking the coward’s way out of an important political decision.  They’re completely misunderstanding the problem.  It’s like telling someone with a plane ticket from Manhattan to London to get off the plane and walk.  It’s why we need a mandatory constitutional law class for highschoolers.  If the people can’t understand the people’s document, where does that leave democracy?

Footnotes below the line.

(more…)

Especially on the Fourth of July, we ought to recognize that, as Barack Obama said, patriotism knows no party lines:

But, when a political movement comes into conflict with the most basic values of America, to the point that it is clearly perpendicular with our foundational ideals, we ought to draw the definition of “patriot” to exclude that group.  I think that this line, if it exists, ought to be fairly hard to cross, particularly because calling someone “unpatriotic” is a clear slap in the face to individuals or groups who legitimately seek to improve America with their ideas, crazy though they may be.  The democratic requirement of a vibrant marketplace of ideas demands that we not so devalue each other.  Where an ideology comprises a shade of gray instead of an unequivocal danger to democracy, it’s not fair to call its adherents categorically unpatriotic. Patriotism merely requires that one do what’s best for America, with its foundational ideas. There are many respectable means to that end.

But there are ideologies that come at a crossroads with patriotism, though they come only when one seeks to oppose a fundamental, highly abstracted democratic principle.  America will brook no tyrant, for example, and anyone who would supplant democracy with kingship or tyranny couldn’t fairly be called a patriot.  Democracy requires free speech: shooting ones’ political opponents is clearly obnoxious to the idea of America, and therefore unpatriotic.

Similarly, while Americans obviously clash on the definition of how much difference our commitment to equality requires us to tolerate, I think we are justified in withdrawing the label “patriot” from someone who undertakes affirmative opposition to the very principle of equality before the law. While a patriot may fairly decide to fail to empower a group of society, no true American should co-opt the machinery of the state to suppress the same group. By example, I do not doubt that one may oppose gay rights (marriage, nondiscrimination) and still call themselves a patriot, but one may not affirmatively seek to remove the fundamental rights of all Americans, such as suffrage, from a group while claiming to vindicate any of America’s foundational principles.

Given that definition - which I’m still not so sure about, so I welcome debate - I’m not sure on which side of the line the late Jesse Helms falls.  I’m thinking about this because the immediate impetus when a powerful and successful American politician dies is to valorize the individual, and hail them as a patriot.  But I’m not sure Senator Helms’ legacy deserves the inevitable praise.

There’s something basically wrong about someone who fails to recognize the equal rights of black Americans, even after decades and decades in power, and decades of experience with men and women of all races.  While some wiggle room ought be given when evaluating historical figures, who must always work within the mode of the day - it’s a common human failing to not question the evils of ones’ time, if they’re widespread enough - persisting in bigotry while the rest of the world moves on signifies, to me, a certain corruption unbefitting an American.  Patriotism requires us to work always towards a more perfect union.  People who works against that, when the rest of the nation has moved on… those types really make me scratch my head.

Happy fourth of July! This year, and every year, let’s remember that patriotism is more than a flag pin; it is, or ought to be, a desire to leave our American nation, and the American state, better than we found it. 231 years ago, our Founders gave their lives and their livelihoods, in the hopes of doing just that. Though their sacrifice bought us the right to relax in prosperity, and ensured that all of us need not lay our lives on the line this year, we owe America the same commitment to progress this year, and every year.

While we’ve faced our share of obstacles, especially in the past decade, I have no doubt that we can overcome them. Although it’s an odd source, I’ve always thought that Stephen Sondheim, in the musical Assassins, spoke well on the continuing vitality of the American experiment. Singing on the threat violence poses to the national consciousness, Sondheim concludes that America’s vitality is not lightly depleted:

Someone tell the story; someone sing the song. Every now and then the country goes a little wrong; everyone now and then a madman’s bound to come along. Doesn’t stop the story; story’s pretty strong. Doesn’t change the tune.

We’ve been through a lot, and we’ve come back stronger each time. Although it requires our help each time, the idea of America is a hope for the future, one that’s never disappointed yet. Our story’s pretty strong.

I hope my friend at “The Big Stick” will forgive me for neglecting his compliment for so long: I’m honored that he appreciates the middle ground that we, and probably the majority of Americans, share, and I’m grateful for his recognition (here and here).  Although we may disagree on some issues, we do so politely, and I’ve always learned from his positions: he’s not afraid to explore issues in depth (in fact, that’s his specialty), so when he talks, I listen.

The author over there, Progressive Conservative, once said in a comment about blogs here on WordPress, “we all seem to be rooting for each other… when somebody does a great job, they deserve some praise.”  He almost always does a great job, and I think America would be a lot better off if there were more people like him in government.  Especially in the spirit of the Fourth of July, let’s celebrate the values we all share.

In a year where a Democratic landslide is looking inevitable - Electoral-Vote.com continues to project that Barack Obama’s election night vote tally will dwarf the 270 required to win - Frank Rich of the New York Times is correct to point out, as one of McCain’s advisors did last week, that a terrorist attack would practically be a godsend for the beleagured Republicans. Political science and common sense have long held that, faced with the threat of war, citizens of a democracy rush to the sitting administration or its representatives to “rally ’round the flag,” and in America, scared voters always run to the Republicans, whose platform for the past fifty years has consisted almost solely of the words, “a stronger national defense.” As Rich points out, the irony of this trend during the past seven years has been that the Republicans have proven themselves categorically inept at managing national security: they’re long on rhetoric and short on substance, as a failed war and an unfocused hunt for our real enemy have together proven.

However, Rich stops short of the historical conclusion that naturally follows from his prospective analysis: the only reason George W. Bush is anything but a historical footnote, and the only reason he’s been allowed to wreak such havoc upon our nation for so long, is September 11th.

On September 10th, 2001, George W. Bush was nothing. With an approval rating in the fifties, the President was mocked on all sides, and set to become another “caretaker” president, coasting on the successes of the Clinton years without adding anything to them. He wasn’t good, but he wasn’t bad; he was a one-term mistake, but a harmless one.

September 11th changed all that.  Citizens rallied not only to the flag, but to its inept leader.  Valorized for simply being the sitting president in a time of war, we excused Bush’s mistakes and obvious incompetence just when they transformed him from comic to dangerous. This was a man who was completely unready for anything more challenging than a pretzel, much less a terrorist attack…

…but we let ourselves be scared into his waiting arms, for the sake of unity and certainty in uncertain times. We let Bush convince us that we needed him in war, when we barely tolerated him before.

The lesson we’ve learned from that mistake has been dearly bought.  Seven years later, after being manipulated by fear, and suckered into a second term where none was deserved (and where none would otherwise have been won), we can look back with hindsight to see that the wartime requirement of unity does not mean that a democratic electorate must tolerate error; quite the opposite, it makes error all the more dangerous. It transforms an intellectually weak executive from an annoyance and a lost opportunity into an affirmative danger. If America is in trouble today - if we have lost part of ourselves in the cells of Guantanamo and Abu Ghraib - it is because we let fear consume our better judgment. More poignantly, if we have lost focus in the war on terror, and sold out our grandchildren’s economic future, it is because we let terror convince us to abandon logic.

The enduring, indirect legacy of the 9/11 attacks will be the price we paid by sticking with Bush for too long, instead of having the courage to question our leaders. By letting the events of 9/11 terrorize us into putting up with Bush, we let terrorism work. Coming back to the present, if we let the same thing happen again, the results could be even worse, by compounding the consequences. You know what Bush says: fool me once…