Someone who read my blog (my brother-in-law, to be specific), chided me that its contents might someday be fodder for opposition political research or the basis for difficult questions by a minority senator in a confirmation hearing. Herewith, my response:

First of all, to the extent that this comment suggests I am worthy of political office or an appointment to something requiring Senate confirmation, thank you for the compliment.

Second, I welcome the opportunity to discuss these views in the context of a political debate. I come by these views honestly (that is, I'm not posturing, or playing Devil's Advocate, or anything like that). If someone wants to challenge me, the ensuing debate would, by definition, have to be substantive. (Gasp!) What's wrong with that? Given the state of political discourse these days, a little substance might not be such a bad thing.

Third, speaking for myself only, I want politicians and judges to be people who have points of view. How is it good for society if we insist that public figures be bland, think blandly, and stake out no position whatsoever for fear of offending somebody? If I disagree with their points of view, then I can choose whether to oppose their appointments or elections. But if I don't know what their views are, how can I make a meaningful determinations about where they (or, for that matter, I) stand?

Homework for today's class is an article on Slate.com by Michael Kinsley [link]. In it, Kinsley makes the cogent observation that calling Osama Bin Laden and his band of thugs "evil" is a great soundbite, but doesn't really advance the public discourse on what we should do about it. And, he observes, neo-conservatives wish that we would all just agree on the label, support the war and move on.

The problem, of course, is that many moderates and those oh-so-pesky liberals aren't content with just labeling terrorists as "evil" and moving on. They insist on understanding the nuances -- did we provoke this, how are we ourselves complicit, and the like.

Kinsley speculates that the neo-con intolerance to the question "why do they hate us" stems from the fact that neo-cons won't like the inevitable answer: either the first world/third world divide made them that way, or it's because something we've done pissed them off. Either way, we would have to examine and modify our foreign policy, which is anathema to the neo-con way of thinking. As a result, neo-cons have tended to demonize the dissenters. Bush himself set the tone ("Either you're with us or you're with the terrorists"), John Ashcroft all but accused the ACLU of being a terrorist cell ("To those who scare peace-loving people with phantoms of lost liberty, my message is this: your tactics only aid terrorists") and neo-con pundits have howled with rage at the supposed "fifth column" in academia that dares ask whether we might take this opportunity to rethink our relationship with the developing world.

I agree with Kinsley that neo-cons have made it their business to demonize those who ask why. But I'm not so quick to conclude therefore that if the neo-cons wish we wouldn't question, the right thing to do must be to ask "why do they hate us". Kinley's argument on this point is, in essence, this: that to achieve the neo-con goal of eradicating terrorism, we must first examine the "why do they hate us" question; it is imperative that we know our enemies. As Kinsley sees it, branding terrorists as "evil" and pitching the fight as "us vs. them" glosses the real issues and ultimately, impedes our ability to first, understand the terrorists and second, to fight terrorism.

But do we really have to "understand" the terrorists, as Kinsley suggests? Isn't it possible that there are certain actions, certain modes of political engagement that are simply beyond the pale? I don't have to understand what motivated Hitler to know that genocide is evil. Must I rationalize attacking that evil, or may I simply act on the knowledge that it's wrong? Put another way, is there really any question that it's evil and needs to be eradicated?

This is not to say that I agree with the likes of Ashcroft and Bill Bennett. I don't. But my beef with the "axis of evil" mentality is not whether "evil" exists and should be eradicated, but rather, that we're inconsistent both about who is labeled "evil" and why. Why is Osama Bin Laden evil, but Yasser Arafat is not? Why is Saddam Hussein evil but Pervez Musharaf is not? Why is Al Qaeda evil, but Hamas is not? I suspect that, being unable to answer this much harder question, neo-cons have redirected the conversation to the safer ground of "good vs. evil" in the hopes that no one will notice the difference.

I do agree with Kinsley that "why do they hate us so much" is certainly a valid question, and one that we should be thinking about. I would posit, however, that that inquiry is in some ways premature. We initiated the Marshall Plan in response to the question "how do we keep from losing the peace", but that question came after "how do we win the war". So yes, at some point, it will be necessary to ask "why do they hate us so much" and the companion question, "how to do we keep them from hating us so much", but maybe not just now.

Am I missing something here? I have just finished reading reports in the New York Times, CNN.com, MSNBC and ABC News about the latest terrorist attack in Tel Aviv, and all of them are written as if there had been no attack on a Palestinian elementary school by Jewish settlers. If I hadn't read the reports of that attack myself, I would begin to doubt that the school attack ever took place.

Of course, what's truly bizarre is that all of the articles cite a six-week "lull" in violence, broken at last by a suicide bombing yesterday and the bus bombing today. Umm, excuse me, but wasn't the bomb at the Palestinian school the first act of violence to break the six-week lull?

Bizarre.

Israeli settlers are alleged to have set off a bomb laced with nails and screws at a Palestinian elementary school. Police later detonated a second bomb discovered at the school. Five children, the youngest of them six years old, were wounded. Had the bomb gone off twenty-five minutes later, as many as 350 children could have been killed. [link to New York Times article]

Outraged is a word that has lost its power through overuse. Similarly, adjectives like despicable, deplorable and inexcusable. If I could, I would manufacture a new word, one that means "that which brings the weight of the heavens crashing down upon the world", one that instills in everyone who hears it a genuine and abiding fear for his own life, one that is so terrible, so awful that no one would dare speak it. It would combine the power of Emile Zola's "j'accuse" [link] with the exasperation of Joseph Welch's "Have you no sense of decency, sir?" [link], and would convey to those who brought on its utterance the complete and total contempt and condemnation of every man, woman and child ever to have walked the face of the earth. It would communicate to its targets that they are lower than low, not even on par with slime mold, fleas or the most disgusting vermin. Those to whom this word was directed would know that it was for them that the worst ravages of hell were created and reserved.

If such a word existed, I would use it to condemn the cowards who stood before God on Yom Kippur, praying for the sins of the world during the past year, and then went out and plotted to murder and maim 350 children. Who planted two bombs that were intended to kill children. Who thought that it was somehow justifiable to torture and kill children. That is how I would use this word.

Overheard on the subway:

The players: two twenty-something men. The speaker was dressed in a t-shirt that said "D&E Carpets" on the front. The back said "Carpet Layers Do It on the Floor"

The scene: the 6 train, going uptown. The two men are discussing a conversation with a mutual acquaintance; the carpet guy did all the talking.

"So she's telling me all about her day. First she goes to class and then she works the rest of her day at some think tank writing position papers on American foreign policy. Then at night, she still has to do all her homework. So she's like, she's all tired and falls into bed at night. I was like, that's totally different from my college experience. Mine involved sleeping through my first class, which was okay because it was just a lecture. Then maybe I went to my second class. By then, I was so confused, I'd come home and just get high and then go to sleep."

I confess, it's hard to imagine how this studious fellow could have ended up as a carpet-layer and wearing a t-shirt that said "Carpet Layers Do It on the Floor". Still, I had to wonder who this mystery woman was, how she got to be so cool, and why she's hanging around this dweeb.

This morning, at 10:19 a.m., I did something monumental. I arrived at my office, I sat down, and I turned on my computer to work. In short, I went about my ordinary business this morning, and that is monumental. One year ago exactly, I was standing huddled in a small take-out restaurant while black dust turned day into night outside and a small group of frightened people stood inside trying to figure out what had happened to the world we woke up to that morning. One year ago exactly, I should have been in my office on the 30th floor of the south tower, working on some unmemorable thing or just sitting at my desk, not worrying about whether my pregnant wife would go into labor when she discovered I wasn't home, safe and sound. I should have been shooting the breeze with my coworkers, wondering where we would go for lunch and what I might watch on television that night. I should have been living an ordinary life.

One year ago exactly, I would have given almost anything to be able to go to work and do something mundane. Today, I will complete that unfinished commute. I work hard, but I will not do anything particularly monumental in the grand scheme of things. But no matter: today, I will write some letters, and I will move some papers from my inbox to my outbox. Maybe I will make some phone calls today, or make some photocopies or read the memos stacked up on the side of my desk. The point is that there is nothing going on today that could not wait until tomorrow, and at the end of the day, some of the projects I am working on will have moved only incrementally toward conclusion. My day will be completely ordinary and the things I work on unmemorable.

It will be one of the best days of my career.

This is a follow-up to a follow-up. In a previous post made very late last night/early this morning, I noted that voluntary service in a foreign armed force by an American may be grounds for revocation of his or her citizenship. I went back and researched this point, and here is the State Department's clarification.

Basically, service in a foreign army implicates Section 349 of the Immigration and Nationality Act, which states that a citizen may voluntarily and intentionally relinquish citizenship by, among other things, taking an oath, affirmation or other formal declaration to a foreign state or its political subdivisions (Sec. 349 (a) (2) INA) or entering or serving in the armed forces of a foreign state engaged in hostilities against the U.S. or serving as a commissioned or non-commissioned officer in the armed forces of a foreign state (Sec. 349 (a) (3) INA). Significantly, however, the fact of service alone is insufficient to establish the loss of citizenship; rather, the State Department must determine that the person serving in the foreign army intends or intended to renounce his or her American citizenship. In Vance v. Terrazas (1980), the Supreme Court stated that "expatriation depends on the will of the citizen rather than on the will of Congress and its assessment of his conduct." Nevertheless, the Court also indicated that a person's intention to relinquish U.S. citizenship may be shown by statements or actions.

For the moment, the State Department operates under the presumption that an American citizen in all circumstances wishes to retain his or her citizenship. That presumption may be vindicated merely by the affirmation of the citizen that, despite service in a foreign army, he or she does not wish to relinquish citizenship. Of course, there are situations in which the presumption would not apply, including situations in which a citizen (i) commits a potentially expatriating act (as enumerated in Section 349) and (ii) the act is "accompanied by conduct which is so inconsistent with retention of U.S. citizenship that it compels a conclusion that the individual intended to relinquish U.S. citizenship", but the department helpfully notes that "such cases are very rare".

The upshot of all of this is that under existing precedents, both Hamdi and Lindh could have been determined to have forfeited their status as citizens, thus clearing the way to treat them as "enemy combatants". I would note, by the way, that the burden of proof doesn't seem either very daunting or likely to lead to the disclosure of classified materials. It seems to me that the analysis is fairly straightforward -- did either of them serve in a foreign army? Did either of them commit acts that demonstrated their intent to relinquish their citizenship? If the answer to those two questions is yes, case closed. The appeal (such as it is) of this approach is that first of all, it's an administrative procedure overseen by the State Department, and second, it addresses many of the fundamental civil liberties complaints raised by critics of the administration. [The benefit of this being administered by the State Department is that the avenue of appeal, I presume, is through the Administrative Procedures Act. There, the standard is whether the action was arbitrary or capricious in nature; assuming that there are minimal due process protections, this is a difficult standard to beat.]

Hooters is considering buying Vanguard Airlines, which halted operations and is preparing to liquidate in Chapter 11. [article]

Must...make...joke....Overwhelmed by...comic possibilities...

I received the following post from Bruce, which bears examination. It refers to an article by Charles Krauthammer, published in the Washington Post [article]

Krauthammer (who, I believe, is a lawyer) gives his suggestions about Mr Hamdi. Sounds reasonable to me. Hamdi was siezed on the field of battle at arms against the US soldiers who siezed him, and would qualify on that basis as an enemy combatant. Mr K's interpretation would imply that John Lindh's treatment was the legally improper one. He was just as much an enemy combatant as Hamdi, and should not (or is it merely need not?) have been extended the rights of an ordinary civilian defendant that he, in fact, got to enjoy.

Yes. I agree that Hamdi's case is an anomaly. He is a US citizen almost purely by accident (his parents are non-citizens, and he was born here while they were living here, briefly, and then he was raised in Saudi Arabia). And he was captured on a field of battle bearing arms against the United States. That leads to two possible conclusions: either he is a citizen and therefore he should be tried for treason (the constitutional remedy for betraying your country); or he is a citizen, but that status is now, by executive fiat, a conditional one that may be revoked for all intents and purposes if you are deemed an "enemy combatant". The first possibility has the virtue of being consistent with precedent, but imposes a strict and difficult standard of proof, so it may not be possible to charge him or, if charges are possible, to convict him, of treason. The second possibility flies in the face of our notions of citizenship, but has the virtue of being both expedient and perhaps necessary in the circumstances.

There is a third possibility that would finesse the virtues and vices of the two possibilities I just described, without resort to a new "rule" such as the one that Krauthammer proposes: there is already a law that states that if a citizen takes up arms for a foreign government, that act may result in a revocation of citizenship (it's a problem for Americans who maintain dual citizenship in countries with compulsory military service; in those cases, the view of the State Department has been that if you are drafted into a foreign army, you did not voluntarily take up arms, and therefore did not violate the statute); what if by taking up arms, Hamdi merely forfeited his citizenship? If that is the case, he can be labeled an "enemy combatant" with no constitutional infirmity. The problem, of course, is that by the logic of the third possibility, Hamdi or Lindh are indeed being treated inconsistently, since both were captured while bearing arms against the United States.

Mr K's interpretation also tries to give due weight to citizens' concerns about an out of control military or other part of our government operating independently of normal judicial protections. Does he succeed? A U.S. citizen not seized on the field of battle or taking up arms against the U.S. might still turn out to be an enemy combatant (e.g. a spy directly furnishing infrormation detrimental to U.S. interests to enemy combatants with which the U.S. was currently engaged). But the government would have to bring argument before a court, and overcome some burden of proof, before a U.S. citizen not seized on the field of battle could be designated an enemy combatant. Siezed on the field of battle, you would not enjoy those civil rights. It may not be enough protection, depending on how terms are specified. A crucial term is "field of battle" or perhaps "area of hostilities". If we are engaged in campaigns against international terrorists, who make try to strike anywhere, then everywhere is, arguably, where the field of battle is. Our greatest concern is attacks here, and that might imply that our home territory is the primary field of battle. If so, Mr K's recommendations would come down to treating people in the U.S. suspected of planning military strikes here differently depending on whether they were U.S. citizens or not (which is sort of where I think we are now, but maybe it would help to draw some of the lines a bit more clearly). So, on Krauthammer's rule, could you or I be picked up by the government and held as enemy combatants on the whim of some unaccountable official? No. But non-citizens could. Is this a fair compromise? I'm not sure. Would it quiet critics? Some, not others.

I think a fair place to start in defining the "field of battle" is to presume that until we are invaded, the field of battle can't include the territorial possessions of the United States. Krauthammer's rule has the virtue of being bright-line; moreover, a field of battle seems to me to be fairly narrowly circumscribed location, rather than a nebulous and somewhat philosophical construct. If we are looking to guide the judiciary, in my opinion, it helps to be as concrete as possible.

Expanding Krauthammer's test, as you suggest, to include an "area of hostilities" risks two related problems: first, what is included in the "area" of hostilities -- so far, the hostilities have been limited to New York, Washington, Shanksville, PA and Afghanistan. But Jose Padillo was picked up in Chicago, and recently, a purported al-Qaeda cell was picked up in Seattle. Are these within the "area of hostilities"? To my mind, it smacks of Philip K. Dick to define the "area" to include any place where hostilities are planned, without regard to if, and if so, where they are carried out or where "overt acts" in furtherance of hostilities are committed (not to mention the territorial difficulties posed by cyberspace -- fodder for another discussion).

The second problem is, what are "hostilities"? I don't have a good answer for this, but at the very least, if Congress passes a declaration of war, then we can rely on that definition to fix in both time and scope when "hostilities" begin and end. In the present situation, however, "hostilities" means what the Bush administration says it means, which is precisely the problem with the term "enemy combatant". Dig too deeply, and it all begins to be circular. In any event, since the term "area of hostilities" sheds no light on question of enemy combatant status, I would be more comfortable (relatively speaking) with Krauthammer's definition -- if the suspect is apprehended in the United States, there ought to be a rebuttable presumption against "enemy combatant" status.

Where is the third branch of government? Congress seems to not want to touch this, but at least some of those lines could be sketched by legislation (followed by judicial review, of course). For some in Congress, I think it is a principled ceding of broad authority to the President when it comes to conducting military affairs. For others, it is a reluctance to tie the administration's hands because they hope to be the administration soon and might find it hard to argue out of the precedent. Others might just find the puzzles too hard, and turn to other things. I suppose that speculating about other people's motives is fruitless and impertinent, so I'll stop for now.

Good question. Legislative abdication is certainly nothing new, but in the circumstances, it remains appalling.

More from the September 11 file that I found in my desk. This time, it's quotes from The Federalist Papers, unburdened by commentary, on the subject of judicial restraint and the dangers of arbitrary "justice":

There is no liberty if the power of judging be not separated from the legislative and executive powers. . . Liberty can have nothing to fear from the judiciary alone, but would have everything to fear from its union with either of the other departments. -- Federalist 78 (Hamilton, quoting Montesquieu, Spirit of Laws, vol. 1, page 181)

The Union will undoubtedly be answerable to foreign powers for the conduct of its members . . . As the denial or perversion of justice by the sentences of courts, as well as in any other manner, is with reason classed among the just causes of war, it will follow that the federal judiciary ought to have cognizance of all causes of action in which the citizens of other countries are concerned. This is not less essential to the preservation of the public faith than to the security of the public tranquility. -- Federalist 80

Arbitrary impeachments, arbitrary methods of prosecuting pretended offenses, and arbitrary punishments upon arbitrary convictions have ever appeared to me to be the great engines of judicial despotism. -- Federalist 83

"The observations of the judicious Blackstone, in reference to [the practice of arbitrary imprisonments] are worthy of recital: 'To bereave a man of life [says he] or by violence to confiscate his estate, without accusation or trial, would be so gross and notorious an act of despotism as must at once convey the alarm of tyranny throughout the whole nation; but confinement of the person, by secretly hurrying him to jail, where his sufferings are unknown or forgotten, is a less public, a less striking, and therefor a more dangerous engine of arbitrary government.'" -- Federalist 84 (quoting Blackstone's Commentaries, Vol. 1, p. 136)

Considerate men of every description ought to prize whatever will tend to beget or fortify [the integrity and moderation of the judiciary] in the courts; as no man can be sure that he may not be tomorrow the victim of a spirit of injustice, by which he may be a gainer today. -- Federalist 78

Recently, my company moved to new offices. While packing my desk, I came across a note jotted to myself sometime last fall. As we approach Sept. 11, I thought I would share it with the world. As best I can recall, the impetus for this note was that the families of victims of Sept. 11 were agitating for the entire World Trade Center site to be given over to a memorial.

Of Monuments and Mourning

The Vietnam Veterans Memorial is no less moving for being in Washington instead of Vietnam. Lincoln wasn't shot where he is now memorialized.

The World Trade Center site is more than a place where 3,000 people died. It was a place where 50,000 people lived every day -- lived and conducted business and ate and shopped, and where thousands more passed through each day seeking inspiration in the 100 mile views. No one is suggesting we refrain from rebuilding the Pentagon, where the tragedy of the victims and the heroism on the ground were equally as great. So why is it that Ground Zero (a term I hate, by the way) should become a dead place. With all the talk of not "letting the terrorists win", shouldn't we be rebuilding bigger and more grandly, with more bravado and boldness? Where is the memorial to the living? We live in a city that is the most diverse in the world, in one of the richest nations in the world. September 11 was an awful awful day (trust me, I was there), but in the end, what better thumb in the eye of America-haters than to rebuild it better than it was before? Isn't that the ultimate revenge -- you can bend us, but we don't break? Seems to me it is.