Originalist sin

"It will almost certainly cause more Americans to be killed."

So wrote Antonin Scalia in his dissenting opinion in Boumediene v. Bush (as noted earlier), which permits detainees at Guantanamo and elsewhere to challenge the legality of their imprisonment by filing writs of habeas corpus in federal courts.

A few days later, with no apparent sense of irony, the Supreme Court released Scalia's opinion for the 5-4 majority in District of Columbia v. Heller, which invalidated D.C.'s ban on handguns. Scalia neglected to mention that the result in Heller is absolutely certain to "cause more Americans to be killed."

While I can't say I've gotten through all 157 pages of Heller, it's interesting to see how Scalia has parsed the 2nd Amendment's reference to "[a] well regulated Militia, being necessary to the security of a free State..." In it he finds, through breathtaking contortions, an individual right to bear arms rather than a collective right, as the phrase would plainly suggest.

It's a familiar display of sophistry and outcome jurisprudence, armed to the teeth (bad pun) with cites to often-obscure sources (including a "Linguists' Brief") over two centuries. It's as if Scalia thinks an opinion creaking under the strain of so many sources would compensate for the feeble logic of his position.

Scalia's meticulous resort to centuries of legislative history in Heller directly conflicts with his long hostility to reliance on legislative and historical sources:

It says to the bar that even an "unambiguous (and) unequivocal" statute can never be dispositive; that, presumably under penalty of malpractice liability, the oracles of legislative history, far into the dimmy past, must always be consulted. This undermines the clarity of law, and condemns litigants (who, unlike us, must pay for it out of their own pockets) to subsidizing historical research by lawyers. The greatest defect of legislative history is its illegitimacy. We are governed by laws, not by the intentions of legislators. . . . But not the least of the defects of legislative history is its indeterminacy. If one were to search for an interpretative technique that, on the whole, was more likely to confuse than to clarify, one could hardly find a more promising candidate than legislative history. [Conroy v. Aniskoff, 507 U.S. 511 (1993).]

Or, as Scalia wrote a few years earlier, "the main danger in judicial interpretation of the Constitution — or, for that matter, in judicial interpretation of any law — is that the judges will mistake their own predilections for the law." [1]

Scalia's contortions evoke Harry Frankfurt's notion of bullshit:

"His eye is not on the facts at all, as the eyes of the honest man and of the liar are, except insofar as they may be pertinent to his interest in getting away with what he says. He does not care whether the things he says describe reality correctly. He just picks them out, or makes them up, to suit his purpose."

Scalia's textualism, it seems, depends entirely on the context.

NOTES

[1] Antonin Scalia "Originalism: The Lesser Evil," 57 University of Cincinnati Law Review 849, 851 (1989) [as quoted here].

[A version of this entry was cross-posted as
a comment on Lawyers, Guns and Money.]

Another whiff of hypocrisy

John McCain continues to distance himself from these comments by strategist Charles Black, who seems to be ambivalent about the benefits and burdens of terrorism:

The assassination of Benazir Bhutto in December was an "unfortunate event," says Black. "But his knowledge and ability to talk about it reemphasized that this is the guy who's ready to be Commander-in-Chief. And it helped us." As would, Black concedes with startling candor after we raise the issue, another terrorist attack on U.S. soil. "Certainly it would be a big advantage to him," says Black.

But there's a familiar whiff of hypocrisy from the McCain camp, as revealed in this excerpt from an Associated Press analysis by Glen Johnson:

The day Bhutto died in a bombing and shooting attack, McCain told reporters, "My theme has been throughout this campaign that I'm the one with the experience, the knowledge and the judgment. So perhaps it may serve to enhance those credentials to make people understand that I've been to Pakistan, I know (President Pervez) Musharraf, I can pick up the phone and call him. I knew Benazir Bhutto."

If any uproar ensued over this comment, it failed to attract much attention from the media.

It's clear that Republicans, and particularly McCain, are trying to position themselves so that terrorism becomes a win/win proposition, at least in their fevered imaginations. Either:

1. There will be no attack, in which case Bush/Cheney/McCain can claim that "we kept you safe" — assuming we're willing to overlook the 4,104 U.S. deaths and nearly 30,000 wounded in Iraq; or,

2. There is an attack and McCain can be hyped as more experienced, with more defense cred, than Obama -- hey, it's a tough world out there.

The ongoing attempt to "feminize" Obama, as developed by Maureen "Obambi" Dowd and many others, plays nicely into this grand, and unspeakably cynical, strategy.

Monomania in the White House

In the face of abysmal poll numbers, Bush and Cheney will again have to recalibrate and redefine the standards for passing historical judgments on their administration. No doubt they will declare their years in office to be a grand success if no additional terrorist attacks occur within the U.S. on their "watch." The boast would be simple enough: "we kept you safe."

But to make such a claim, they'd have to ignore the 4,102 U.S. troops who have been killed in Iraq and another 30,000 who have been wounded. Not to mention the tens or hundreds of thousands of Iraqi casualties. They'd also have to dismiss the greatly increased long-term risk of attacks that their disastrous policies have created. Such short-term thinking, in one form or another, has long been the bane of U.S. politics. For Bush and Cheney, all that matters is deferring the consequences of their mistakes until after their term has ended.

On domestic issues, their only consistent policy has been to maximize the influence of — and minimize the restrictions on — multinational corporations. In this effort, and often with the assistance of a nominally Democratic congress, they have enjoyed some modest successes at the expense of the economy and the political process.

On his recent visit to the U.K., Bush again tried to insulate himself from contemporary judgments about his "legacy" by declaring, in his inimitable way:

“Well, first of all, just so you know, I’m not going to be around to see it. There’s no such thing as objective short-term history,” [Bush] said. “It takes a while for history to have its, you know, to be able to have enough time to look back to see why decisions were made and what their consequences were.”

F. Scott Fitzgerald offered a far more telling judgment on the Bush/Cheney administration's legacy in this description of two main characters from The Great Gatsby:

"They were careless people, Tom and Daisy — they smashed up things and creatures and then retreated back into their money or their vast carelessness, or whatever it was that kept them together, and let other people clean up the mess they had made…"

Scalia: A legend in his own mind

In his dissenting opinion in Boumediene v. Bush, which conferred the right of judicial review on detainees at Guantanamo and elsewhere, Antonin Scalia flatly declared:

The game of bait-and-switch that today’s opinion plays upon the Nation’s Commander in Chief will make the war harder on us. It will almost certainly cause more Americans to be killed.

In support of this contention, he claims:

In the short term... the [majority's] decision is devastating. At least 30 of those prisoners hitherto released from Guantanamo Bay have returned to the battlefield.

He goes on to cite several incidents from the GWOT "battlefield" — a very flexible concept for Scalia — as alleged in such sources as the minority report of a Senate committee and several articles from WaPo. Most of the alleged incidents occurred in 2004.

Mark Denbeaux, a professor at Seton Hall University School of Law (SHUSL), with the assistance of several law students, deconstructed Scalia's claims in a detailed 22-page report that found:

"Justice Scalia’s reliance on the these sources would have been more justifiable had the urban legend he perpetuated not been (one would have thought) permanently interred by later developments, including a 2007 Department of Defense Press Release and hearings before the House Foreign Relations Committee less than two weeks before Justice Scalia’s dissent was released.

[...]

"Justice Scalia’s claim of 30 recidivist detainees is belied by all reliable data. Such a statement simply repeats, without appropriate judicial analysis or skepticism towards the statements of parties before the Court, inaccurate data disseminated by the Department of Defense. Despite being repeatedly debunked, this statement has been reflexively accepted as true by Members of Congress and much of the American public. Justice Scalia is only the most recent disseminator of an urban legend that refuses to die."

The SHULS study found that only one released Gitmo detainee (designated "ISN 220") later took up arms against U.S. forces or their allies, and he was not released as a result of any legal process. In fact, the report found that "the decision to release ISN 220 was made by political officers in the Department of Defense and was contrary to the recommendations of the military officers."

Scalia's false claims go to the heart of the rationale for holding detainees without judicial review: if any doubt exists, keep them locked up indefinitely for fear that they might attack the U.S. or its allies [1]. This falsehood will be repeated many times by October 8th, when the first Gitmo trial begins.

Scalia's dissent is yet another variant of the Willie Horton Syndrome (see below and here) in U.S. politics. No politician or member of SCOTUS wants to be blamed for the release of a prisoner who later attacks U.S. troops or civilians. While this impulse may be understandable, an opaque system that includes torture and indefinite detentions is not the solution. A transparent judicial process is better able to balance legitimate security considerations with the due-process rights of those who have been unfairly accused and imprisoned.

NOTES

[1] Unless there's enough international pressure to force their release, of course.

[H/T to Scott Lemieux at Lawyers, Guns and Money
and M. Duss at Think Progress]

Blues Break: Two by Blind Willie Johnson

Dark was the Night, Cold was the Ground

A great "moaning" piece by Blind Willie Johnson (1897-1945), born in Brenham, Texas. This song is one of the tracks on NASA's Voyager Golden Record. Launched in 1977, Voyager left the outer limits of the solar system in 2004.

Trouble Soon Be Over
Performed with a wonderful young singer whose name isn't available.

McCain on Vietnam (but not Iraq)

In his 2001 foreword to the late David Halberstam's The Best and the Brightest, John McCain wrote the following about the war in Vietnam:

"It was a shameful thing to ask men to suffer and die, to persevere through god-awful afflictions and heartache, to endure the dehumanizing experiences that are unavoidable in combat, for a cause that the country wouldn’t support over time and that our leaders so wrongly believed could be achieved at a smaller cost than our enemy was prepared to make us pay. No other national endeavor requires as much unshakable resolve as war. If the nation and the government lack that resolve, it is criminal to expect men in the field to carry it alone...

"For anyone who aspires to a position of national leadership, no matter the circumstances of his or her birth, this book should be mandatory reading. And anyone who feels a need, as a confused former prisoner of war once felt the need, for insights into how a great and good nation can lose a war and see its worthy purposes and principles destroyed by self-delusion can do no better than to read and reread David Halberstam’s The Best and the Brightest."

Yet this is the same candidate who has declared victory in Iraq, some five years (or 10.0 Friedman Units) in advance. And if that doesn't work, he'd embrace a whole century of U.S. occupation. Go figure.

But there's a deeper consistency here. McCain, after all, has complained that the U.S. didn't "fight to win" in Vietnam due to a lack of political will. This lack of "unshakable resolve," in turn, resulted from the failure of the civilian political leadership to rally support on the home front. Responsibility falls most heavily on liberal politicians in Washington, notably LBJ and Robert McNamara, and the antiwar movement.

McCain invokes the central tenet of right-wing mythologies about the Vietnam war: The troops were defeated at home, not on the battlefield. The various military outcomes over a dozen years may be debatable, but in this view the blame falls squarely on the civilian leadership and lack of popular support at home. Never mind that military successes are meaningless unless they achieve the political goals that are used to justify a war.*

The lack of "unshakable resolve" is McCain's variant on the infamous Dolchstoßlegende, or "stabbed in the back legend," from World War I. By that account, Germany lost the war due to the lack of will and duplicity of its politicians rather than any failures on the battlefield. Hitler later blamed the "November criminals" of 1918 — including German Jews and the socialists who agitated against the war — for Germany's betrayal. The Rambo series is a Hollywood version of the same mythology, which will certainly be resurrected by the right to account for failure in Iraq.

The fundamental problem, in this right-wing fantasy, is sheer lack of will — as if "will" is a pure abstraction, a unique virtue unrelated to the actual political motives that caused the U.S. to wage war in Vietnam and Iraq. It seems this flawed ideology of "will," the legacy of two world wars and Vietnam, is very resilient.

For McCain, "unshakable resolve" magically assures success in war. But the deeper issue is always: resolve to do what, exactly? If the end is morally flawed or morally ambiguous, the war is unlikely to generate "unshakable resolve" on the home front and within the military itself. Tactical successes in combat become irrelevant or even, as in Iraq, counterproductive. High casualties, for no defensible purpose, combine with the slaughter of civilians to undermine any initial "resolve" that an invasion may have generated.

Colonel Kurtz aptly describes McCain's version of "will" in Apocalypse Now:

"You have to have men who are moral... and at the same time who are able to utilize their primordial instincts to kill without feeling... without passion... without judgment... without judgment. Because it's judgment that defeats us."

If there's anything that describes McCain's policies on Iraq and the Middle East, it's that one simple phrase: "without judgment..."

NOTES

* The far right likes to think that the U.S. was never "defeated" militarily in Vietnam (or in Iraq for that matter). The Tet offensive of 1968 is often invoked as proof of that claim. While it's true that the Vietcong and North Vietnamese were unable to hold many of their initial objectives, it can't be denied that Tet was an enormous political victory for their forces. Contrary to the Johnson administration's specious claims, Tet demonstrated that the insurgency, and not the U.S., held the strategic initiative in the war.

[H/T tip to The Cunning Realist and Digby]