Hey, wasn't there a blog here?

Sorry for the disappearance into the non-virtual world -- reality can be remarkably pressing at times.

Former IMF economist Simon Johnson looks at the U.S., and feels as if he's seen this movie before:

But inevitably, emerging-market oligarchs get carried away; they waste money and build massive business empires on a mountain of debt. Local banks, sometimes pressured by the government, become too willing to extend credit to the elite and to those who depend on them. Overborrowing always ends badly, whether for an individual, a company, or a country. Sooner or later, credit conditions become tighter and no one will lend you money on anything close to affordable terms.

The downward spiral that follows is remarkably steep. Enormous companies teeter on the brink of default, and the local banks that have lent to them collapse. Yesterday’s “public-private partnerships” are relabeled “crony capitalism.” With credit unavailable, economic paralysis ensues, and conditions just get worse and worse. The government is forced to draw down its foreign-currency reserves to pay for imports, service debt, and cover private losses. But these reserves will eventually run out. If the country cannot right itself before that happens, it will default on its sovereign debt and become an economic pariah. The government, in its race to stop the bleeding, will typically need to wipe out some of the national champions--now hemorrhaging cash--and usually restructure a banking system that’s gone badly out of balance. It will, in other words, need to squeeze at least some of its oligarchs.

Squeezing the oligarchs, though, is seldom the strategy of choice among emerging-market governments. Quite the contrary: at the outset of the crisis, the oligarchs are usually among the first to get extra help from the government, such as preferential access to foreign currency, or maybe a nice tax break, or--here’s a classic Kremlin bailout technique--the assumption of private debt obligations by the government. Under duress, generosity toward old friends takes many innovative forms. Meanwhile, needing to squeeze someone, most emerging-market governments look first to ordinary working folk--at least until the riots grow too large.

You can see where this is going, but do read the article.

Commissars

On top of recent reports alleging that IDF soldiers are admitting to killing Gazan civilians in cold blood, we now see this:

In testimony reported by Israeli news media and in interviews with The Times, Gaza veterans said rabbis advised army units to show the enemy no mercy and called for resettlement of the Palestinian enclave by Jews.

“The rabbis were all over, in every unit,” said Yehuda Shaul, a retired army officer whose human rights group, Breaking the Silence, has taken testimony from dozens of Gaza veterans. “It was quite well organized.”

The army, which conscripts almost every Israeli Jew at 18, has been dominated for most of its history by secular officers. But over the last 15 years, as secular Israelis have soured on the occupation of Palestinian territory, religious nationalists have taken over senior positions in elite combat brigades.

With them have come hundreds of volunteer rabbis, who teach at pre-military academies for religious youths and serve side by side with the troops. * * *

“This rabbi comes to us and says the fight is between the children of light and the children of darkness,” a reserve sergeant said, recalling a training camp encounter. “His message was clear: ‘This is a war against an entire people, not against specific terrorists.’ The whole thing was turned into something very religious and messianic.”

(Via Yglesias.) These stories are apparently being propagated by a left-wing outfit in Israel -- as I understand it, the IDF is a draft force, so Israeli Jews of all political stripes are in its ranks. So it's possible to throw up one's hands and ask, "whom do I believe?" But if this stuff did in fact happen, I wouldn't exactly expect to hear about it in a Netanyahu speech, either. And the Old Testament is rich in genocidal precedents.

(Note the Essene quality of the "light v. darkness" motif.)

Time-wasting at its finest!

New to me is the website for the Tanner Lectures, including the page I've just linked with PDF's of nearly all the lectures, by an astonishingly high percentage of the total number of professors from the past 20-odd years whose lectures one would like to read. Singling out names would be invidious; just skim the list -- which is all I've got time for at present.

Oy vey

Sylvia Plath's son Nicholas has always stayed out of the newspapers; biographers of Plath noted only that he was a marine biologist. Until now.

Nicholas Hughes, the son of the poets Sylvia Plath and Ted Hughes, has hanged himself at the age of 47. The former fisheries scientist at the University of Alaska Fairbanks had carved out a successful scientific career in one of the remotest parts of the western world, but ultimately he could not escape the legacy of being the offspring of one of the most famous and tragic literary relationships of the 20th century.

Nice telepathy, that. Tacky bastards.

In a statement issued late on Sunday evening, Frieda Hughes reported: "It is with profound sorrow that I must announce the death of my brother Nicholas Hughes, who died by his own hand on Monday 16 March 2009 at his home in Alaska. He had been battling depression for some time.

"His lifelong fascination with fish and fishing was a strong and shared bond with our father (many of whose poems were about the natural world). He was a loving brother, a loyal friend to those who knew him and despite the vagaries that life threw at him, he maintained an almost childlike innocence for the next project or plan."

A report in the Fairbanks Daily News-Miner today by its columnist Dermot Cole understandably celebrates Hughes's academic and personal qualities rather than his literary associations. Noting that his initial scientific training had been at Oxford, Cole says he earned a doctorate at the University of Alaska in 1991: "He made lasting friendships in Fairbanks with those who shared his inventive interests in such varied pursuits as stream ecology, pottery, woodworking, boating, bicycling, gardening and cooking the perfect pecan pie … He spent countless summer hours in his research of grayling and salmon in the Chena river, exhibiting all the patience and wonder that defines a great fisherman. One of his innovations was rigging underwater cameras to get a three-dimensional view of the fish feeding in the passing current."

That interest may seem to pop psychologists an altogether more positive inherited legacy, of Ted Hughes's passionate interest in fishing, and indeed his father made several visits to Alaska before his death in 1998. Nicholas's particular academic specialism was in the behaviour of fish in currents. A 2004 paper explored why larger fish swim upstream in the turbulence of midstream rather than in the quieter waters near the banks: "Large fish swim further from the bank to avoid wave drag, the resistance associated with the generation of surface waves when swimming close to the surface," he wrote.

Hughes gave up his professorship two years ago to concentrate on pottery, although the paper said he continued his research with his partner, Christine Hunter, also a biologist.

Cole wrote: "A few times I called to let him know I would like to write about his life and his family connections whenever a news story about his parents appeared, but he did not think it was a good idea, so it never happened. He deserved his privacy. By and large, people in Fairbanks respected that, which is a good comment on our part of the world. In Alaska he had the freedom and the opportunity to live on his own terms and be recognised for his own accomplishments. Here he was not a literary figure forever defined by the lives of his parents."

Sad news.

Rawls's original position?

Via Tyler Cowen, here's a TLS review of (really an abridged introduction to) a book of John Rawls's religious writings. Yes, the arch-theorist of liberalism was a devout Episcopalian in his undergraduate years ... and as the article intriguingly suggests, his political theory seems at least compatible with, and perhaps influenced by, his earlier beliefs. Here's a snippet or two:

The moral importance of the separateness of persons, a fundamental theme of Rawls’s work, is strikingly anticipated in the moral and religious conception of community that lies at the heart of the thesis. Rawls proposes that the essential feature of human beings is our capacity for community, that sin deforms our essential nature and destroys community, and that faith is the realization of our nature through integration into community: our “openness” to God and other persons overcomes the terrible aloneness that issues from sin. Although the term “community” may suggest otherwise, the human fellowship in which we realize our nature does not destroy the separateness of individual persons, but is founded on an affirmation of their distinctness. Here is a revealing passage:

"We reject mysticism because it seeks a union which excludes all particularity, and wants to overcome all distinctions. Since the universe is in its essence communal and personal, mysticism cannot be accepted. The Christian dogma of the resurrection of the body shows considerable profundity on this point. The doctrine means that we shall be resurrected in our full personality and particularity, and that salvation is the full restoration of the whole person, not the wiping away of particularity. Salvation integrates personality into community, it does not destroy personality to dissolve it into some mysterious and meaningless “One”."

* * *

This brings us to a particularly striking continuity between the thesis and Rawls’s later views: the rejection of merit. One of the most famous and controversial claims of A Theory of Justice is that a just social order should not aim to distribute benefits according to desert. Rawls does not reject the idea of moral worth or merit entirely, but denies its suitability as a basis for determining distributive shares, or any of the other entitlements of persons in a well-ordered society. But it is not hard to detect a general sense that the factors usually thought to confer deservingness are not enough under our control to be the source of moral claims: “Even the willingness to make an effort, to try, and so to be deserving in the ordinary sense is itself dependent on happy family and social circumstances”. This view comes powerfully to mind when in the thesis we encounter Rawls’s opposition to Pelagian and semi-Pelagian doctrines about salvation. He sides with Augustine in denying that we can earn salvation by our own merit – by freely choosing virtue, or by works of any kind: “There is no merit before God. Nor should there be merit before Him. True community does not count the merits of its members. Merit is a concept rooted in sin, and well disposed of”. This claim is theological, associated with an interpretation of divine grace. But consider the following passage:

"The human person, once perceiving that the Revelation of the Word is a condemnation of the self, casts away all thoughts of his own merit . . . . The more he examines his life, the more he looks into himself with complete honesty, the more clearly he perceives that what he has is a gift. Suppose he was an upright man in the eyes of society, then he will now say to himself: “So you were an educated man, yes, but who paid for your education; so you were a good man and upright, yes, but who taught you your good manners and so provided you with good fortune that you did not need to steal; so you were a man of a loving disposition and not like the hard-hearted, yes, but who raised you in a good family, who showed you care and affection when you were young so that you would grow up to appreciate kindness – must you not admit that what you have, you have received? Then be thankful and cease your boasting”."

I've someone managed to avoid reading Rawls thus far, but it looks like I'm going to have to pick up Justice as Fairness ... or Political Liberalism ... or A Theory of Justice ... but which edition? ... noooow I remember why I haven't read Rawls yet.

... Maybe the solution is to read Freeman on Rawls?

Even worse than being a D&D nerd!

Kung Fu Monkey reassures me that my childhood could have been worse:

There are two novels that can change a bookish fourteen-year old's life: The Lord of the Rings and Atlas Shrugged. One is a childish fantasy that often engenders a lifelong obsession with its unbelievable heroes, leading to an emotionally stunted, socially crippled adulthood, unable to deal with the real world. The other, of course, involves orcs.

Much, much worse. (Via LGM).

I've read some student papers in English like this.

Via la Bookslut, the translator of Orhan Pamuk's recent works, Maureen Freely (ha), tells us about Turkish:

Turkish has no verb "to be" and no verb "to have." It prefers the passive to the active voice and has one word for "he," "she" and "it." It is an agglutinative language, which means that root nouns often carry a string of 10 or more suffixes. Turkish also likes verbal nouns (the "doing of," the "having been done unto") and because you do not know the verb until the end of the sentence, you often read four, five or six clauses without knowing how they are connected.

Add to that the Language Revolution, which began in the 1930s with the aim of replacing all words of Arabic and Persian origin, at the time 60 percent of the vocabulary. Though some of those words remain, the language has changed so much that the speeches of Ataturk, the republic's founding father, have had to be retranslated twice. Turkish allows for complex constructions that (to paraphrase the poet Murat Nemet-Nejat) can catch elegant thoughts in the act of unfolding, but to replicate those structures in English is to weave a knotted web in which each clause strangles the one preceding it, while the shortage of root nouns encourages an overuse of basic words and/or wild guesses as to which of 20 or so English words might reflect the writer's intentions.

Better her than me, but I'm grateful for the effort -- Snow was a surprisingly engaging and moving novel.

Tortuous prosecutions

On account of little procedural missteps like torturing the suspects, our prosecutions of the crimes of 9/11 have looked permanently stalled. Obama's DOJ is now examining a possible dodge: prosecuting KSM et al. for their previous crimes. (H/t Bashman.)

A senior Justice Department official, speaking on the condition of anonymity because the government is still reviewing cases, said bringing such detainees to trial on prior charges is one of many possibilities being considered. No decisions have been made.

Reviving the long-dormant cases would pose some legal hurdles - particularly a defendant's right to a speedy trial, given how long Mohammed and others have been in U.S. custody. * * *

If they are tried on older charges, not based on questioning since 9/11, prosecutors could argue that testimony or evidence regarding more recent interrogations could not be admitted into evidence. Under court rules, prosecutors are required to reveal to the defense much of what they have learned in an investigation concerning the charges a defendant faces. In past cases, such information has made its way back to terror plotters, including al-Qaida.

This might be an attractively pragmatic solution if it can be done ... a bit like the famous conviction of Al Capone for tax evasion. My sense of justice recoils a bit at the thought that 9/11 will, technically, go unpunished. But then, I see that the FBI still doesn't even list that particular crime on Osama's most-wanted poster.

The conservative minds

Picking up on our "conservative thought" theme, Alan Wolfe has a nice little post about who the great modern conservative thinkers are (or aren't). And I'll mark here for future reading his takedown of Russell Kirk.

Out of sight

That's me for a while -- I'm performing one of the least enjoyable tasks of the legal profession, the writing of the Losing Reply Brief. (But why file this non-required brief if it's going to lose? For the same reason that I'm pursuing the appeal in the first place: because the client wants me to.) There was no course in law school on how to make your bad arguments fall on the non-sanctions side of the frivolity line ...

Persons interested in this blog's typical preoccupations will want to examine Scott Horton's blog post on Obama's latest smoke-and-mirrors trick, the abolition of (the term) "enemy combatants."

The Justice Department’s posture is much less than I was hoping for, but the legal turf it stakes out strikes me as potentially palatable. I am still skeptical. These concepts might be wielded in an abusive way, as the Bush “enemy combatant” concept clearly was. It will be important to monitor the Obama Administration’s interagency review process and see how these new concepts are actually applied to the detainees. Give the positively abysmal track-record of the Justice Department, a heavy measure of skepticism is well justified.

Longer but worthwhile is Mark Danner's article on the Red Cross's interviews with our "black site" prisoners after they went to Gitmo. He reproduces the table of contents from the ICRC's report:

Contents
Introduction
1. Main Elements of the CIA Detention Program
1.1 Arrest and Transfer
1.2 Continuous Solitary Confinement and Incommunicado Detention
1.3 Other Methods of Ill-treatment
1.3.1 Suffocation by water
1.3.2 Prolonged Stress Standing
1.3.3 Beatings by use of a collar
1.3.4 Beating and kicking
1.3.5 Confinement in a box
1.3.6 Prolonged nudity
1.3.7 Sleep deprivation and use of loud music
1.3.8 Exposure to cold temperature/cold water
1.3.9 Prolonged use of handcuffs and shackles
1.3.10 Threats
1.3.11 Forced shaving
1.3.12 Deprivation/restricted provision of solid food
1.4 Further elements of the detention regime....

As Danner reminds us, the ICRC is the actual "body legally charged with overseeing compliance with the Geneva Conventions," which in a country that respected the rule of law, would mean that this report was sure to presage indictments. But that is not the United States of America ... under its previous, or current, presidents. Out of sight, out of mind.

... Andrew Sullivan compares the above TOC with the June 12, 1942 directive of Heinrich Muller, the Gestapo chief, enumerating "sharpened" or "enhanced" interrogation methods:

simplest rations (bread and water)
hard bed
dark cell
deprivation of sleep
exhaustion exercises
but also the resort to blows with a stick (in case of more than 20 blows, a doctor must be present)

Of course, the Gestapo added to that in practice ("the following, among other things"). And so did we.

Adventures in redundancy

Type "Lily Allen" into Amazon's search engine, and this is item no. 7 or so:

Fuck You [Explicit] by Lily Allen (MP3 Download)

Explicit? You don't say. How so, exactly?

Sorry, Grandma!

I love this Nietzsche Family Circus juxtaposition. That quote ... that rope ... and Grandma in the backgroud ... jeepers, Dolly, what are you saying?

The owl of Minerva follows the gunboats

During the decades following the Qing Restoration of the 1860s, leading personalities, both Manchu and Chinese, tried to adapt Western devices and institutions. This movement ... was posited on the attractive though misleading doctrine of "Chinese learning as the fundamental structure, Western learning for practical use" -- as though Western arms, steamships, science, and technology could somehow be utilized to preserve Confucian values. In retrospect we can see that gunboats and steel mills bring their own philosophy with them.

-- John King Fairbank, China: A New History, chapter 11.

Conservative readings: Burke

Following up on my post about Russell Kirk's Portable Conservative Reader, I'll post occasionally on the readings therein.

He begins with Burke, and it's striking that, after the signal absence of any discussion of liberty in Kirk's checklist of conservative principles, we begin with an excerpt that Kirk titles "The Truth About Civil Liberty." Kirk focuses on "the conservative dislike of extremes," and certainly Burke doesn't endorse absolute liberty -- but then, who, outside Sade, does?

Liberty too must be limited in order to be possessed. The degree of restraint it is impossible in any case to settle precisely. But it ought to be the constant aim of every wise, publick council, to find out by cautious experiments, and rational, cool endeavours, with how little, not how much of this restraint, the community can subsist. For liberty is a good to be improved, and not an evil to be lessened.

The obvious inclination here is to a practical maximum of liberty, and Burke's difference with a "liberal," if any, would be about the nature of the "cautious experiments" and "rational, cool endeavors."

Although this extract (from the "Letter to the Sheriffs of Bristol") dates before 1789, it already seems likely that a problem with Burke as a conservative poster-child is that Burke was arguing against what is usually a straw man -- the specter of untrammelled liberty. 1789, arguably, gave this specter flesh and bone; but how much do arguments relevant to the French Revolution bear on ordinary, non-revolutionary politics?

Certainly, when it comes to defining "the real rights of men," there is not much daylight between Burke and J.S. Mill on first principles:

Whatever each man can separately do, without trespassing on others, he has a right to do for himself ....

There is of course in the Reflections a great deal about gentle manners and religion, their indispensability for civil society, etc. - but how much of that has been rebutted by experiment and cool rationality?

Burke was probably right that France would have done better to reform its institutions rather than abolish them, and that the absolute power of the assembled radicals led inevitably to terror and bloodshed. (We leave aside the fact that Louis XVI himself did a great deal to oppose reform and to make the radical revolution inevitable; it's a pity that Burke addressed no pamphlet to him.) But I am not sure that a prudent liberal equals a conservative, and prudence is the monopoly of no party.

... Burke's conservatism is better elucidated, I'm sure, by Francis Canavan's introduction to the Liberty Fund edition of the Reflections:

... the right that was fundamentally at issue between Burke and his opponents. They held that every man in the state of nature had a sovereign right to govern himself and for that reason had a right to an equal share in the government of civil society. Burke held that what was important in the civil state was not that every man’s will should be registered in the process of government, but that his real interests (advantages, goods) should be achieved. * * * But this implies that purpose, rather than original rights and individual consent, is the organizing and legitimizing principle of a constitution. * * *

Who, then, shall make the practical judgments of politics? The question cannot be answered by appealing to the rights of men. “Men have no right to what is not reasonable, and to what is not for their benefit.” But as to what is for their benefit, Burke said: “The will of the many, and their interest, must very often differ.” The first duty of statesmen, indeed, is to “provide for the multitude; because it is the multitude; and is therefore, as such, the first object . . . in all institutions.” But the object is the good of the people, not the performance of their will. The duties of statesmen, in consequence, do not belong by right to those whom the many have chosen, but ought to be performed by those qualified by “virtue and wisdom, actual or presumptive,” for the task of government.

This focuses the difference, then, between conservatives and liberals: conservatives believe that there is *a* good for "the mulitude" which can be discerned by the wise. Ultimately, this is a teleological position, which is why Canarvan's exposition of the focus on *purpose* is so relevant. Whereas liberals don't take it as a given that there is a single good for all, or that if there were, anyone would be better able to discern it for the multitude than they themselves.

In other words, conservatives seek a first-order state, in which the government is directed towards achieving the good; liberals seek a second-order state, which facilitates the multitude's search for its own plural conception of the good.

Obviously, this ties Burke to metaphysical claims (much tho he would disavow the word) about a moral order in the universe, and makes his reliance on religion and tradition more than mere obscurantism.

Perhaps he should've stopped to think who he *was*, first

Political Wire:

Sen. David Vitter (R-LA) made quite a scene at Washington's Dulles airport last week when trying to catch a flight home, reports Roll Call.

The Louisiana senator arrived at his gate to find it already closed and then "opened the door, setting off a security alarm and prompting an airline worker to warn him that entering the gate was forbidden." Vitter "gave the airline worker an earful, employing the timeworn 'do-you-know-who-I-am' tirade that apparently grew quite heated."

Man, what a missed opportunity:

"Do you know who I am?"

"Sure, you're the senator who slept with all those hookers."

A once-in-a-lifetime opportunity? But given Vitter's ego, someone else may get the same opening before too long.

Just as we nowadays live by our capacity to forget

In the years before the Great War, at the time the events chronicled in these pages took place, it was not yet a matter of indifference whether a man lived or died. When someone was expunged from the lists of the living, someone else did not immediately step up to take his place, but a gap was left to show where he had been, and those who knew the man who had died or disappeared, well or even less well, fell silent whenever they saw the gap. When a fire happened to consume a particular dwelling in a row of dwellings, the site of the conflagration remained for a long time afterwards. For masons and bricklayers worked slowly and thoughtfully, and when they walked past the ruins, neighbours and passers-by alike recalled the form and the walls of the house that had once stood there. That's how it was then! Everything that grew took long to grow; and everything that ended took a long time to be forgotten. Everything that existed left behind traces of itself, and people then lived by their memories, just as we nowadays live by our capacity to forget, quickly and comprehensively.

-- Joseph Roth, The Radetsky March, chapter 8 (tr. Hofmann).

Conservative thought?

I’ve found a copy of the Portable Conservative Reader, an anthology of writings by portable conservatives - excuse me, a portable anthology of conservative writings - which, as it’s edited and introduced by Russell Kirk, ought to be a representative example of "real" conservative thought. I note that it came out in 1982, when someone at Penguin presumably noticed the election of Reagan and thought, “say, we ought to look into these ‘conservative’ fellows.”

Given the soul-searching after the 2008 elections, perhaps it’s a good idea to see whethere there’s some more intellectually reputable “conservatism” to which the GOP could in theory restore itself, rather than perpetuating the Rove/Limbaugh/Palin tactics.

In his introduction, Kirk denies that conservatism is an ideology, but I think that just begs the question of what an ideology is. “Instead, conservatism is a way of looking at the civil social order.” That sounds like a pretty good definition of “ideology” to me.

I can’t judge the book by its introduction, but some of the trouble with American conservatism (the book largely confines itself to America and England, perhaps to avoid having to include chunks of Joseph de Maistre for ex?) is suggested by the six “major premises” which Kirk lays down for conservatism.

(1) “a transcendent moral order,” deus sive natura;

(2) “social continuity” - “necessary change ... ought to be gradual and discriminatory” [sic];

(3) deference to “things established by immemorial usage”;

(4) “prudence,” which seems in Kirk’s definition to overlap w/ (2) above - change should be made slowly and deliberately, if at all;

(5) “diversity” - no, really: “the proliferating intricacy of long-established social institutions and modes of life” is to be respected, tho n.b. “long-established”; his explanation specifies that “many sorts of inequality” are to be accommodated; and

(6) the “principle of imperfectibility,” the recognition of our limits and faults.

What strikes me about this list, first and foremost, is, on what would a conservative rely who wanted to argue that the abolition of slavery, or of Jim Crow, was a good thing? Because these principles seem to be tailor-made for someone wanting to argue the opposite.

This impression is not alleviated by the book’s section on “Southern Conservatism,” which appears to show no disapprobation of what Kirk calls “a passionate attachment to old ways, to rural society, and to the South’s peculiar institutions.” (“What Henry Adams called ‘the Sable Genius of the South,’ ” we are helpfully told.) “In the Civil War, this southern conservatism would be beaten down by the stronger North.” And I’m not even going to get into the Donald Davidson essay’s comments on “the Southern Negro.” (This Donald Davidson, not that Donald Davidson.)*

For conservatism to put down roots in the American tradition, it's got to be able to address the problem of America's history of racial relations.

More generally, I don’t even see “liberty” or “freedom” listed in the index. Fine, you say; “liberty” is obviously a tenet of “liberalism,” not of conservatism. But I don’t understand what conservatives think is to be done with the post-1789 (or 1776?) political order. Do they “conserve” it, or seek to roll it back? Or, as Courtney Love asked, “What do you do with a revolution?”

__________________
* Wiki helpfully tells us that Davidson "chaired the pro-segregation group the Tennessee Federation for Constitutional Government. Davidson, who considered African Americans racially inferior, defended segregation as a social institution developed by white southerners to preserve their culture and identity." Seems to meet the six points on the checklist.

You say "dicta," I say "holding" -- let's call the whole thing off!

Via DeLong, one D.A. Ridgel has a detailed takedown of Yoo's latest op-ed. Here's a taste:

In the first place, the holding “of the Supreme Court in the case of Near v. Minnesota ex rel. Olson concerning press freedom” is not the passage Yoo quotes. The Court in Near strikes down a state statute as an infringement of the 14th Amendment (which makes the First Amendment applicable to the states as well as the federal government.) Now, I’m not sure how they teach what constitutes a case holding at Yale where Yoo went to law school or at Berkeley where he now teaches, but I’m reasonably confident that the holding in any judicial opinion is a statement of how and why the court decides a case as it in fact does and not language which, at most, limits the scope of that decision.

In the second place, while the Court in Near clearly does acknowledge that even the prohibition against prior restraint of the press “is not absolutely unlimited” (Near at 716), its quoting of Schenck v. United States (a case the Yoo memo conveniently fails to cite even as it also quotes Schenck) refers to a 1919 conviction under the Espionage Act of June 15, 1917 for distributing pamphlets encouraging men to disobey the Selective Service Act of May 18, 1917. Well, there’s no war hysteria like old war hysteria, after all. Nonetheless, the rationale behind the holding in Schenck was substantially overruled in 1969 by Brandenburg v. Ohio, a fact one must suppose Yoo also knew.

As a result, it is difficult, to put it mildly, to see how dicta quoted from a case that no longer constitutes good law in another case which in fact struck down attempted state restrictions on constitutional liberties works to strengthen Yoo’s contention that President Bush need not be concerned by Fourth Amendment protections, either.

But it would all look very convincing to a non-lawyer in CIA or DOJ, wouldn't it?

Things I would never have guessed, # 2,865

Guess who're a bunch of cricket fans?

Surprisingly, the Taliban are in favour of it. Before 1978, most Afghans despised the game as a British imperialist relic. But following the Soviet invasion of 1978, young Afghan refugees in Peshawar picked up the game from Pakistanis, much as Tibetan refugees in Nepal have adopted spicy subcontinental food. The Taliban took the game back to Afghanistan when they gained power. A cricket website writes:

In January 2000, the Taliban regime wrote to the Pakistan Cricket Board seeking support to join the International Cricket Council as an associate member.

A decorously bearded Afghan team played in Rawalpindi in May 2001.

Since Obama is now pondering whether to cut a deal with the Taliban to quiet down the NW Province and Afghanistan, perhaps a rep from the ICC should mediate?

... Jim points out, "Well, of course. How could they lose any games? Would you want to be on the team that beat the Taliban at anything?"

Proust, disease & the illusion of time

A sharp little brute of a sinus infection knocked me flat on Thursday and Friday, much of which I spent lying on my couch, either sleeping (at best), reading (at worst), or, on one occasion, thinking about Proust's treatment of homosexuality. I suddenly realized that Proust discusses it like a man discusses a chronic disease he himself suffers from, with the same recurring distaste and fascination. This must be a commonplace w/ Proust scholars -- it holds obvious potential for unifying the book, in which love itself is a disease and an illusion -- but new to me.

Back on my feet, I ran into Proust in another unexpected place. How he would've loved this:

It is not reality that has a time flow, but our very approximate knowledge of reality. Time is the effect of our ignorance.

That stunning lyric is spoken by "Carlo Rovelli, a physicist at the University of Marseille in France," who has been working to demonstrate that time is "an illusion," according to this article, or perhaps more accurately, a statistical generalization:

For more than a decade, he has been working with mathematician Alain Connes at the College de France in Paris to understand how a time-free reality could give rise to the appearance of time. Their idea, called the thermal time hypothesis, suggests that time emerges as a statistical effect, in the same way that temperature emerges from averaging the behaviour of large groups of molecules (Classical and Quantum Gravity, vol 11, p 2899).

Imagine gas in a box. In principle we could keep track of the position and momentum of each molecule at every instant and have total knowledge of the microscopic state of our surroundings. In this scenario, no such thing as temperature exists; instead we have an ever-changing arrangement of molecules. Keeping track of all that information is not feasible in practice, but we can average the microscopic behaviour to derive a macroscopic description. We condense all the information about the momenta of the molecules into a single measure, an average that we call temperature.

According to Connes and Rovelli, the same applies to the universe at large. There are many more constituents to keep track of: not only do we have particles of matter to deal with, we also have space itself and therefore gravity. When we average over this vast microscopic arrangement, the macroscopic feature that emerges is not temperature, but time. "It is not reality that has a time flow, it is our very approximate knowledge of reality that has a time flow," says Rovelli. "Time is the effect of our ignorance."

That would be a wonderful final exam: "write three pages of In Search of Lost Time in which Proust expounds upon the ideas in this New Scientist article."

John Yoo, a really Schmitty lawyer?

Over at TNR, Damon Linker (real name?) chides perennial dumbass Jonah Goldberg for mocking the notion that John Yoo and Carl Schmitt have anything in common:

Schmitt's primary contribution to political theory is the idea that in emergency situations, the rule of law can and must be suspended in favor of an executive act of decision about how to defend the political community against its existential enemies. This act, for Schmitt, is the supremely political act, and as such it transcends the standards of right and wrong, legal and illegal, that prevail under "normal" political conditions. It is thus incoherent to condemn such actions, since by definition they take place beyond categories that empower us to make moral and legal judgments.

Gee, sound familiar? For those who haven't been paying attention, this is precisely what our last Republican president, his vice president, and their enablers (such as David Addington and John Yoo) asserted for themselves in the years following 9/11 -- namely, that (in Andrew Sullivan's words) the president has "the inherent power to suspend both the First and the Fourth amendments," as well as "the power to seize anyone in the US or [the] world, [and] disappear and torture them" as he sees fit. Moreover, in none of these cases -- indeed, in no conceivable circumstance -- can the president be accused of breaking the law because the president's war powers automatically place him above the law. His sovereign decision -- whatever it is -- simply is the law of the land.

That is Schmittian decisionism, pure and simple. (Whether Yoo and Addington formulated their views on their own, by radicalizing the doctrine of the "unitary executive," or through reading Schmitt by flashlight in a White House broom closet is irrelevant. The ideas are nearly identical, whatever their origins.) But Schmittian assumptions were hardly limited to the executive branch of the Bush administration during the past seven years. They were so widespread among conservative intellectuals, in fact, that most of them responded to the president's decisions with enthusiasm, putting their minds to work justifying and defending his extra-constitutional actions at nearly every turn, while also impugning the motives and patriotism of those who dared challenge the president's sovereign authority.

(H/t Sullivan.)

I've read one short book by Schmitt, Political Theology, which IIRC indeed rests upon the notion that the place of God in the modern state can and must be occupied by the sovereign. Once you grant that, I suppose, everything else makes sense.

-- All this apropos of Goldberg's mocking a new book by Alan Wolfe on liberalism, in the course of which Dumbass also sneers that "Wolfe apparently thinks contemporary conservatives are disciples of Rousseau as much as, if not more, than they are followers of Burke." As we recently saw, this is less implausible than one might've thought.

... Wolfe himself chimes in. "Reading John Yoo is like overhearing Schmitt translated into English." He and Linker both have blogs at TNR? When did this happen?

Worst-Selling Bumper Stickers

I remembered today that a friend and I tried to come up with the ten worst-selling bumper stickers ever. I think we came up with ten but some were lame, and maybe those are the couple I've forgotten ... and I've added a couple of new ones.

Honk If You Love Anal
Got Drugs? I Do!
I Love Black People, Everyone Should Own a Few
I ♥ NAMBLA
Muhammed Atta Is My Co-Pilot
Fuck Christians
On My Way to Shoot Obama
Rapists Anonymous
Cop Killer

Fine Quine

A CT thread about "the greatest 20th century philosopher" (who may have as much existence as "the present king of France") cited a Quine essay I hadn't read, "On What There Is," which well exhibits Quine's acumen and charm.

However, Wyman, in an ill-conceived effort to appear agreeable, genially grants us the nonexistence of Pegasus and then, contrary to what we meant by nonexistence of Pegasus, insists that Pegasus is. Existence is one thing, he says, and subsistence is another. The only way I know of coping with this obfuscation of issues is to give Wyman the word ‘exist’. I’ll try not to use it again; I still have ‘is’.

From Yoo, with love

I don't have anything to say about them, being uncharacteristically swamped, but Orin Kerr notes the posting at DOJ's site of various OLC memos by Yoo and Co. Prof. Kerr is unimpressed with the first one he examines; in the subsequent thread, commenters discuss how to immortalize "Yoo" as a pejorative; my favorite suggestion is for "a Yoo memo" to become slang for "a memo meant to tell the client he can do whatever he wants regardless of what the law says."

The way things are looking, that kind of slang term may be all the punishment John Yoo ever gets.

... Jack Balkin discusses the memos.

... Andrew Sullivan sums it up for us:

Just to recap: the last president believed that he had the inherent power to suspend both the First and the Fourth Amendments, he had the power to seize anyone in the US or world, disappear and torture them, and ordered his legal goons to come up with patently absurd legal rationales for all of it. And much of official Washington carried on as normal - and those of us who actually stood up and opposed this were regarded as "hysterics".

Whereas those who supported it, called themselves "conservatives."

An appeal that sucked?

It may seem odd to sue someone for not sucking, but when it's Oreck suing Dyson over vacuum cleaner adverts, it all makes sense.

Oreck alleged that Dyson falsely advertised that its vacuum cleaners do not lose suction ....

The Fifth Circuit affirms the dismissal of Oreck's claims in an otherwise forgettable opinion that doesn't even tell us who sucks more, Oreck or Dyson.

(I was studying a Dyson machine in Target last night, having been struggling with my dad's sucks-for-not-sucking Hoover earlier in the day, but I still cannot join the ranks of those who pay $400+ for a vacuum cleaner. No matter how much it sucks.)

Women in authority, and other transgressions

A news item about GOP wingnut Rep. Michele Bachmann (R-MN) made me wince, as I realized that a "Bachmann" from Minnesota was likely a Lutheran. "Surely at least she's Missouri Synod and not ELCA," I told myself.

Well, she is actually too nutty to belong to the Missouri Synod, it seems. Nay; she is a member of the Wisconsin Evangelical Lutheran Synod, whose differences from the Missouri Synod (LCMS) include this:

Role of women in the church — The LCMS and WELS agree that Scriptures reserve the pastoral office for men. In "This We Believe," published in 1999, WELS states that "women may participate in offices and activities of the public ministry except where that work involves authority over men (1 Timothy 2:11,12). This means that women may not serve as pastors nor participate in assemblies of the church in ways that exercise authority over men (1 Corinthians 11:3; 14:33-35)."[2]. WELS does not allow women suffrage in congregational matters that would exercise authority over men. LCMS teaches that women may take on roles of lay authority in the church, such as voting in church elections and serving in "humanly established offices" such as congregation president, reader, or member of church councils, including elected executive roles in the church.

So she can't even vote in church council meetings where she would be in authority over men. And I thought LCMS was bad.

It's remarkable that Bachmann doesn't seem to feel this impedes her having authority over men at the ballot box, or in Congress. 1 Tim. 2:12 is not terribly vague: "I do not permit a woman to teach or to have authority over a man; she must be silent." I suppose the WELS would argue that this applies only to conduct within church, but the context doesn't really support that:

I also want women to dress modestly, with decency and propriety, not with braided hair or gold or pearls or expensive clothes, but with good deeds, appropriate for women who profess to worship God.

A woman should learn in quietness and full submission. I do not permit a woman to teach or to have authority over a man; she must be silent. For Adam was formed first, then Eve. And Adam was not the one deceived; it was the woman who was deceived and became a sinner. But women will be saved through childbearing--if they continue in faith, love and holiness with propriety.

That's a pretty all-encompassing argument. I don't read the passage to suggest that women should dress modestly only in church, for instance. (Since this is a classic hatin'-on-Paul passage, remember that there's not much chance Paul actually wrote 1 Timothy.)

(The other citation provided, to 1 Corinthians, is on stronger ground for limiting the restrictions to church only, though its argumentation is even weaker than 1 Timothy's:

women should remain silent in the churches. They are not allowed to speak, but must be in submission, as the Law says. If they want to inquire about something, they should ask their own husbands at home; for it is disgraceful for a woman to speak in the church.

Disgraceful! Okay, then! Some citation to "the Law" would be nice here, but it's not in my New Oxford Annotated RSV that I keep on hand.)

All that being said, the evidence that Michele Bachmann should keep silent is pretty darn strong:

As he concluded his remarks, Minnesota Rep. Michele Bachmann -- the event's moderator -- told Steele he was "da man."

“Michael Steele! You be da man! You be da man,” she said.

No report on the immediate response.

I see btw that she's had 5 kids plus 23 foster kids (wow), so she may be "saved" yet.

Learning from Nixon's mistake

The CIA's new initials are CYA, it seems:

The CIA can now identify the number of videotapes that were destroyed," Acting US Attorney Lev Dassin wrote in his letter dated March 2 to New York Judge Alvin Hellerstein.

"Ninety-two videotapes were destroyed."

The tapes reportedly showed "war on terror" Al-Qaeda suspects undergoing waterboarding, in which prisoners are subjected to a process of simulated drowning that is widely considered torture.

In December 2007, then CIA chief Michael Hayden disclosed the existence of tapes showing the interrogations of two Al-Qaeda suspects, made in 2002 and destroyed in 2005 to protect the identity of agency operatives.

There seems to be a typo in that last bolded part -- should read, "to protect the liberty of agency operatives." Protect it from prolonged penal confinement.

I keep expecting al-Qaeda to videotape waterboardings of its victims before beheading them, but happily, they haven't gotten that smart yet.

92 tapes ... = 92 interrogations, I wonder? Of how many people? Perhaps we'll find out.

Jean-Jacques Rousseau, conservative icon!

Well that explains all the Allan Bloom preoccupation with him, then! All is clear!

Daniel Larison:

One of the difficulties conservatives will have in assessing where they have gone wrong is the sometimes bizarre ideas they have of what conservatism means. For example, here is Rick Moran in an otherwise spmewhat sensible post decrying ideology and calling for self-criticism:

Classic conservative principles are timeless; immutable tenets that have inspired great changes in government over the last 400 years and spoken passionately and plainly to the needs and hopes of ordinary people. Since the end of World War II, those classical principles have informed a devastating critique of the welfare state, presenting a reasoned and logical alternative to statism and dependency. Conservatism has stood for human liberty based on the fundamental idea of natural law; that from his first breath, man is born free.

Larison is of course withering in the rest of his post; in fact, he's been on a roll with this whole CPAC (Conservative PAC?) meeting. See him on Limbaugh and Coulter, for ex (presumably she got her Greats confused, Peter for Alexander?).

While in Sarasota, I picked up Russell Kirk's Portable Conservative Reader, on which I plan to report ... it's interesting to see whether conservatives have any ideas to get back to, or whether the whole project is fundamentally reactionary and incoherent. As opposed to liberalism, which is progressive and incoherent.