October 29, 2004  ·  Lessig

It is no surprise to readers of this blog that I would endorse John Kerry for President. I’ve been harshly (sometimes unfairly) critical of the President (though the Secret Service has not questioned me about my criticism), while I’ve withheld criticism of John Kerry, save for questions about his campaign, and anxiety about his views on IP (and subsequent events have calmed both fears).

But every blog owes it to this space to state its case one way or the other, however briefly, so that the reality of November 3 doesn’t distort the views of where we are today.

Update: Dave’s taken the idea of endorsement and made it bloggable. Check out the options here.

There is an aspect of George Bush that has made it hard to come to this view. I’ve had no doubt about his policies — except for his views on trade (the steel tariffs embarrassment notwithstanding), I’m against them. But his character (as we see it) has a feature that is rare in politicians, and that as a liberal, I long for. As Bush likes to say, even if you disagree with him, you know where he stands. He’s flip-flopped of course (see facts 88-92 on The Nation’s 100 Facts about Bush), but on core positions, he has remained firm.

This is a feature in a politician, not a bug. It was the great disappointment of Clinton that heat would melt any resolve. Loyalty was a weakness. Commitment to an ideal that was unpopular was simply a prelude to a changing commitment.

Bush is different in this respect. It is a certain stubbornness, no doubt, but when stubbornness reflects principles, it is a rare virtue for a politician. It is how we like to remember Reagan. It’s what gave Lincoln the strength to risk everything for the Union.

But ultimately the question is what this stubbornness is a commitment to. One can respect a man committed to values one disagrees with, but that respect depends upon believing that it is really values that constitute the disagreement.

And here I found the Suskind’s book about Paul O’Neill the most instructive. The Price of Loyalty tells a story about a terrifying White House. The terror is the role of politics in this White House. No doubt, every White House has a political director. But at its core, policy should be the driver. Politics might wrap the policy; politics might guide its execution. But if a Presidency is to be more than a machine to assure reelection, then commitment must be to something more than the machine to assure reelection.

This White House has no policy core, at least according to O’Neill, and confirmed in many obvious ways. As he describes through Suskind, there is just a political shell, with no core policy driving the politics. Policy debates are scripted; arguments are removed from the script. The least curious President gets surrounded by yes men, who are themselves watching for signals not from the President, but from the men in charge of getting the President elected.

This is a criticism we could generalize across branches. The branch I know the most about (though admittedly, not much) is the judiciary. Everyone who lives and studies the law recognizes that judges too have a political shell. They are sensitive to, and react with, the changing mood of a time. But we respect judges not for their political skill, but for the principles that define their legal core. The political shell must answer to those principles. If it does, the judge merits respect, even from those who disagree with the principles at his or her core.

I spend my life as a lawyer in the dreamworld that imagines that principles guide judicial decisions. My students try to wake me from that world; I refuse to wake. And as a citizen, I want to live in the world where the White House is guided by a policy making core, not by a political shell. There is an ideal in the law called getting it right, politics notwithstanding. There should be such an ideal in the White House too.

My values are closer to Kerry’s than Bush. So I start biased in his favor. But in those moments when I let myself imagine that Kerry might actually pull this off, the picture that is most dramatically different in my mind is the idea that getting it right might return to the White House. Getting it right: following the facts, asking questions, testing theories, doing what, in light of these, and the values that frame these questions, is right.

Kerry reads. He asks questions. He gets angry at incomplete answers. He does policy. On this alone, he will be a better President than President Bush. And if he can thin the political shell to its properly secondary place, and not fear standing for some ideals that most think wrong, then he’ll be a great President — greater than Clinton, or Reagan, or just about anyone else.

There’s of course much more one could say. There are the parts that make me rage with anger (torture) and well with tears (torture). But the ideal of a policymaking White House is at least a reason for Kerry over Bush. I won’t pretend that it was reason that got me to my vote. I’m sure that anger and tears will always have more power than reason. But if you want to get it right, here at least is a reason.

  • SomeCallMeTim

    I find it curious that Padilla has not been, in any sense, a significant issue in the campaign. IIRC, in Padilla, the govt. asserted the right to throw any US citizen it labeled an “enemy combatant” into jail indefinitely, without a hearing and without a lawyer. How is this not a big deal? Forcing the govt. to justify its coercion of an individual has to be one of the most fundamental of our rights. How is this not worse than the torture memos or anythinge else? Is there something that, in your view, I’m missing?

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  • Max Lybbert

    SomeCallMeTim, I think you’re overlooking that material witness aspect of 9/11. If you recall, even before there were enemy combatants, there was a way to jail people indefinitely without charges.

    The Padilla thing isn’t a big deal, because Americans as a whole recognize that there is a difference between criminal law and military law, just as there is a difference between criminal law and civil law. Americans may not be able to articulate it, but they recognize it.

    And, Bush could hold POWs “indefinitely” without trial, as well. The enemy combatant label simply gives him the ability to deny the prisoners a chance to write letters home, buy tobacco, etc.

  • Max Lybbert

    While it won’t amaze anybody here that I disagree with Lessig’s endorsement, it may suprise some that I find his argument compelling.

    My reason to not switch? For every O’Neill, there’s a Powell (who hasn’t always agreed either — cough, cough — diplomacy surrounding Iraq).

  • http://memetica.blogspot.com David Orban

    Do you remember when Gorbachev spoke about a connected world around 1987? What a difference today with “You don’t have the permission to access” Bush

  • Rob Long

    Perhaps it doesn’t matter in real-space, but on the interweb, the Libertarian Candidate Michael Badnarik gets a decent amount of support, at least as much if not more than Ralph Nader.

  • SomeCallMeTim

    Max:

    That you don’t think the Padilla assertion was a big deal terrifies me. That you somehow think its normal for a US citizen to be jailed indefinitely without access to a lawyer or a court (even a military court) … I don’t have the words to express how depressing that is.

    Material witnesses get a hearing in which a judge determines whether or not they may be detained. That is, they get two things that Padilla, under the govt’s theory, was not to get: advice of counsel and an actual hearing.

    To the extent Padilla was supposed to get anything approximating the due process required by the Constitution, it was supposed to come in the form of military tribunals. It’s now been three years, and, AFAIK, no tribunals have so much as met.

    Jeebus, you people just can’t wait to give away the country, can you?

  • Max Lybbert

    SomeCallMeTim, I’m not saying that it is “normal” for a US citizen to be jailed indefinitely, I’m saying that there were ways to do so on Sep 10, 2001. Second, I never understood why foreign citizens trying to overthrow the government can be detained without trial, but US citizens trying to overthrow the government can’t. Then again, during the Padilla, Hamdi, et. al. trial, I do remember a Supreme Court Justice asking this same question (or, rather, he asked why the government should be able to hold foreigners without trial, but not US citizens. Answer, the Constitution requires trials of US citizens, but something tells me that’s for criminal and civil law.)

    Military tribunals have started preliminary work. Government-paid military defense lawyers have started out by arguing against the fairness and constitutionality of the system.

    The difference, BTW, between military law and criminal law is that the military often holds prisoners for no reason other than to prevent those people from fighting in military units — that is, there’s no accusation of guilt or wrongdoing, simply an attempt to detain people for self defense. Oh, yeah, real POWs are also entitled to having the “detainig authority” (eg., the US) pay their salaries the whole time they are detained. Holding prisoners does make it possible to release them later, if circumstances change. Shooting on sight doesn’t.

  • Oskar

    I wonder what will happen when other countries start holding US Citizens as “enemy combatant”, and treating them the same way the US has been treating “enemy combatants” the last couple of years.

    The US allready passed a law that allows the US government to save US citizens from extradition to the International Criminal Court using “any necessary action”, which has been described as the “The Hague Invasion Act”.

  • http://web.ics.purdue.edu/~smith60 Chuck Smith

    So it’s too late to change it to “emblogment” and make it a phonologically-sound English word? :( Typically, the place of articulation in the consonant immediately following the prefix that ends with a nasal will cause the nasal to change place of articualtion to match (hence EM-Blogment instead of EN-Blogment, as [b] is made with the lips, and so is the nasal [m]). It’s not that you can’t say EN, but try it and see which is easier :)

    Oh well! The wave has been started and a new exceptional case of sound patterns of English has begun. I’m off to enblog Kerry myself!

  • http://memetica.blogspot.com David Orban

    I went ahead, and defined enblog on Wikipedia :-)

  • John Allsopp

    One of the features of type A personalities which is both a cause of success and catastrophic failure is the inability to adapt to changes in circumstance.
    Clever spin doctoring has made inflexible bloody mindedness a virtue, and reasoned, intellectual response to complex situations a vice.

    If as individuals we cannot adapt to changing cirumstances, the personal consequences, financial, social and psychological are often significant. Failing to treat past investments as sunk costs, we “throw good money after bad”. Failing to accept that our position might have been defensible on the basis of what we knew, but new evidence, or changing circumstances can make us look like fanatics, and make us awkward to be around. Inability to adapt in the face of changes around us is associated with triggers of depression.

    But in an extremely complex world, that does change profoundly very quickly, the inability of individuals of influence, political parties, and other powerful institutions to adapt to those changes is potentially catastrophic.

  • SomeCallMeTim

    Max:

    I’m not arguing that what happened to Padilla was “abnormal.” I’m arguing that it was absurd and attacked the basic building block of all of our other rights. If you are under the misimpression that the government can throw a person in jail for any significant period (think days or weeks, not months) of time without access to counsel, and without a hearing, you are very, very, very badly misinformed.

    What in Gawd’s name could you possibly be talking about?

  • Max Lybbert

    Oskar:

    /* I wonder what will happen when other countries start holding US Citizens as �enemy combatant�, and treating them the same way the US has been treating �enemy combatants� the last couple of years.
    */

    Good question. Which current US enemies were likely to follow the Geneva Conventions? And wasn’t one of the requirements to be an enemy combatant failure to belong to a regular (and recognizable) army?

    /* The US allready passed a law that allows the US government to save US citizens from extradition to the International Criminal Court using �any necessary action�, which has been described as the �The Hague Invasion Act�.
    */

    Yes, it has. It has also taken advantage of a part of the treaty that allows signatories, such as France, to enter agreements with non-signatories, such as the US, to not extradite the citizens of the non-signatory (in this case, US citizens) for trial under the ICC.

  • Max Lybbert

    SomeCallMeTim:

    /* If you are under the misimpression that the government can throw a person in jail for any significant period (think days or weeks, not months) of time without access to counsel, and without a hearing, you are very, very, very badly misinformed.
    */

    As we all know, the Padilla case was reviewed by the Supreme Court. The Supreme Court described the facts of the case:

    Respondent Padilla, a United States citizen, was brought to New York for detention in federal criminal custody after federal agents apprehended him while executing a material witness warrant … in connection with its grand jury investigation into the September 11, 2001, al Qaeda terrorist attacks. While his motion to vacate the warrant was pending, the President issued an order to Secretary of Defense Rumsfeld designating Padilla an �enemy combatant� and directing that he be detained in military custody. … His counsel then filed in the Southern District a habeas petition under 28 U.S.C. � 2241 which, as amended, alleged that Padilla�s military detention violates the Constitution,

    Instead of dealing with the actual question, the Supreme Court found some legal technicalities to send the case back down to a lower court. However, the Hamdi ruling makes it possible for Padilla to get some sort of process to determine if he is actually an enemy combatant. If he is, there would be no need to link him with a crime, just as there is no need to link POWs with any crime. I understood that much from the Hamdi ruling. Perhaps you read it differently:

    The capture and detention of lawful combatants and the capture, detention, and trial of unlawful combatants, by �universal agreement and practice,� are �important incident[s] of war.� … The purpose of detention is to prevent captured individuals from returning to the field of battle and taking up arms once again. …

    There is no bar to this Nation�s holding one of its own citizens as an enemy combatant. In Quirin, one of the detainees, Haupt, alleged that he was a naturalized United States citizen. … We held that �[c]itizens who associate themselves with the military arm of the enemy government, and with its aid, guidance and direction enter this country bent on hostile acts, are enemy belligerents within the meaning of � the law of war.� … While Haupt was tried for violations of the law of war, nothing in Quirin suggests that his citizenship would have precluded his mere detention for the duration of the relevant hostilities. …

    We therefore hold that a citizen-detainee seeking to challenge his classification as an enemy combatant must receive notice of the factual basis for his classification, and a fair opportunity to rebut the Government�s factual assertions before a neutral decisionmaker. … These essential constitutional promises may not be eroded. …

    We think it unlikely that this basic process will have the dire impact on the central functions of warmaking that the Government forecasts. The parties agree that initial captures on the battlefield need not receive the process we have discussed here; that process is due only when the determination is made to continue to hold those who have been seized.

    A few comments to lengthen an already-long post:

    • Court rulings can be divided into “holding” and “dicta.” Dicta is just commentary, but holding gets a little tricky. Once upon a time, “holding” meant the actual ruling (eg., the part I bolded that started “We held that …”). Some lawyers today think it means what the court is most likely to do in a future case (eg., the other parts I bolded). Either definition implies that the Supreme Court (which already had Padilla on its mind) has hinted were it would go regarding the citizenship issue.
    • This implies that the Supreme Court believes that it is possible to hold somebody indefinitely without charge (just use military law, which allows detention to prevent people from doing Bad Things). However, the Court did decide to create some sort of hearing. I think this was a form of judicial activism (read the dissenting opinions for the issues Congress should have taken into account when setting up the necessary hearing system), but it is legally-binding, and will be important if Padilla or a similar case gets to the Court again.
    • As you’ve probably noticed, Padilla wasn’t captured on a recognizable battlefield. The court hasn’t hinted where it will go on answering that question. That is an issue that hasn’t been resolved.
  • http://www.writingblog.org/joey Joey

    Following is a brief background on Mrs. John Kerry. She hates being called that, by the way. According to the G2 Bulletin, an online intelligence newsletter of WorldNetDaily, in the years between 1995-2001 she gave more than $4 million to an organization called the Tides Foundation. And what does the Tides Foundation do with John Heinz’s money?
    They support numerous antiwar groups, including Ramsey Clark’s International Action Center. Clark has offered to defend Saddam Hussein when he’s tried.

    They support the Democratic Justice Fund, a joint venture of the Tides Foundation and billionaire hate-monger George Soros. The Democratic Justice Fund seeks to ease restrictions on Muslim immigration from “terrorist” states. They support the Council for American-Islamic Relations, whose leaders are known to have close ties to the terrorist group, Hamas. They support the National Lawyers Guild, organized as a communist front during the Cold War era. One of their attorneys, Lynne Stewart, has been arrested for helping a client, Sheikh Omar Abdel Rahman, communicate with terror cells in Egypt. He is the convicted mastermind of the 1993 World Trade Center bombing.

    They support the “Barrio Warriors,” a radical Hispanic group whose primary goal is to return all of Arizona, California, New Mexico, and Texas to Mexico. Aiding and supporting our enemies is not good for America, regardless of your political views.
    If voters will open their eyes, educate themselves and see the real Teresa Heinz Kerry, they will not appreciate her position as ultra rich fairy godmother of the radical left. They will not want to imagine her laying her head on a pillow each night inches away from the President of the United States.

  • caroline
  • Oskar

    “And wasn�t one of the requirements to be an enemy combatant failure to belong to a regular (and recognizable) army?”

    What if country X (in a war with country Y) starts detaining US citizens, for example aid workers, saying they were plotting an attack on country X or aiding country Y. Labeling them “enemy combatants” and holding them indefenitly, without legal respresentation or trial.

  • Max Lybbert

    Well, Oskar, it would probably depend on the circumstances.

    What am I saying? No, it wouldn’t. Kidnapping Americans is about as safe a venture for terrorists as any other. Apparently there are countries out there that take kidnapping seriously, and would insert a special forces team to get their citizens out of there. The US hasn’t been in that group of countries for several years.

    Of course, you asked about countries detaining American citizens. Well, if there were some reason to believe the Americans truly were “unlawful combatants” (say Israel detaining pro-Hamas Americans, or perhaps something similar to the US detaining Australian Al Quaeda agents in Guatanamo), then nothing would happen. If there were little or no reason to believe the Americans were actually bad, then there would be speeches and potential diplomatic action, and then … nothing (probably). Ford sent Marines to Grenada, and Carter talked with Iran, but wouldn’t expect much serious action to handle such circumstances today.

    Do I agree with this policy? No, but I realize it exists.

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