So Phillip Sands, the author of torture team, is being interviewed on NPR as we speak about the use of harsh interrogation techniques at Guantanamo. Now I’m seriously bothered but many of the revelations about Guantanamo, particularly the possibility that we used harsh interrogation methods when we had strong reason to believe they wouldn’t be effective and that we kept people locked up despite strong reason to believe they posed no threat nor had committed no crime just to avoid looking foolish. Certainly the indefinite secret detention of people and the use of techniques like water boarding violates the spirit of both the US constitution and international human rights treaties whether or not they constitute technical violations. However, the suggestion that senior officials in the Bush administration, including Bush himself, face a real risk of being subject to criminal penalties by foreign nations is just absurd and actually encourages human rights violations. Moreover, the notion that merely suggesting that US law doesn’t bar certain kinds of harsh interrogation techniques is itself a war crime is flat out absurd.

Now is it possible that top members of the Bush administration will face prosecution for things they did in office? Yes, if later revelations stoke up sufficient public outrage they could face charges in the US but even that seems most unlikely. But the idea that Bush might end up being arrested during a trip to Europe after he leaves office is simply laughable. It’s one thing for the Europeans to arrest the former dictator of Chile and prosecute him for crimes that he had legal immunity for in Chile. Not only was there enough support in Chile for him to be (unsuccessfully) prosecuted but a country like Chile has much less international influence than the United States. Given the attitudes of US citizens toward international courts and US independence it’s simply not plausible that we wouldn’t make a fuss if another country tried to arrest Bush after he left office. It’s one thing to arrest a foreign dictator another to arrest a US president whose actions were supported by a substantial fraction of the populace. Even many people who might favor a prosecution in the US would recoil at the idea that the Europeans or anyone else could tell us what we could and couldn’t do. Arresting a former US president is the kind of stupid idea that could lead to a war (but won’t since no non-symbolic arrest will happen).

Moreover, perpetuating these simplistic attitudes about international law actually encourages human rights violations. Despite the fact that Chinese leaders and Kim Jung-Il have certainly committed human rights violations, including some that likely amount to torture, there is no serious suggestion that they will be prosecuted. This is appropriate as productive engagement is much more likely to improve the human condition than a hard line attitude. However, foreign leaders, knowing they won’t have the protections former US presidents enjoy, aren’t stupid will react accordingly. If they see that leaders of repressive regimes will be protected from prosecutions but former leaders of more open societies are not they have a substantial incentive to cling to power. On the other hand if we save war crime prosecution for truly horrific acts (genocide etc..) it might persuade dictators to soften their tactics or even give up power in exchange for pledges of immunity.

Finally I have to say I’m boggled by the idea that merely expressing a legal opinion about what US law allows could make one a war criminal. I mean if Yoo is supposed to be a war criminal for suggesting that water boarding was legal wouldn’t the human rights activist who protests the lack of a law preventing a US president from ordering water boarding be equally guilty? Now of course a legal opinion from the president’s legal advisers has legal significance that the opinion of a human right’s activist lacks but surely that legal significance doesn’t make it a war crime not to lie. If that human rights protestor was appointed as a legal adviser to be president he surely would not suddenly then be obligated to lie and pretend there was a law that barred water boarding when there was not. But if it isn’t criminal (or even immoral) for a legal advisor to say that water boarding isn’t currently illegal but really should be outlawed surely it can’t be criminal for him to mistakenly claim it isn’t currently illegal.

Now certainly, as we saw during the Nuremberg trials, if a lawyer goes beyond observing that something is legal to actively participating in decisions that choose to implement it than things are different. I suspect the intuition that Yoo has committed war crimes comes from people’s assumption that he deliberately twisted the law to achieve his preferred policy outcomes. However, as hard as it may be to believe, it’s far from clear that Yoo consciously did anything of the kind and it would certainly be near impossible to prove any such thing even if you think that water boarding rises to the level of a war crime.

In the 19th and 20th century courageous women like Susan B. Anthony struggled against vehement opposition to secure women the right to vote. In the 70s and 80s feminists fought against pervasive discrimination and struggled to live up to their notions of gender equity (even when misguided). But now that we have a woman losing the democratic nomination by hair’s breadth Hillary Clinton and some of her supporters are trying to lay claim to this legacy to complain about Hillary’’s loss. Has feminism really descended this low? Gone from a noble struggle for equal treatment to an excuse to complain when a candidate you identified with based on gender losses.

Now the video from the women’s media center certainly succeeds in convincing me that Chris Matthews is a sexist jerk but aside from that it’s fallacious confusion of the media’s constant microanalysis of electability and likability with sexism. Asking whether Hillary will succeed in appealing to men is no more sexist than asking if Barack will succeed in winning white votes. Anyone who hasn’t been living in a cave for the past 12 years has seen the stupid discussions on cable news channels of whether candidate X has an appealing enough smile, will suffer for being short or has appropriate choice in ties. Sadly, not subjecting Hillary to this ridiculous microanalyses would be sexist response to her candidate.

Of course if you try hard enough you can read sexism into anything but `likability’ isn’t some minor issues that’s only trotted out as an excuse not to vote for a woman, likability is the essence of electoral politics. As we were endlessly reminded by the pundits the voters in ‘04 would have rather had a beer with Bush than Kerry. If it weren’t for the inconvenient fact that Kerry was a man this would be another perfect example of the sexist media. Of course if you just change the channel you can get an equally compelling account of how the racist media has been biased against Obama.

Listening to the recent complaints about sexism that have flooded the media over the last few days one would think that Hillary’s likability problem was a penalty she was paying for behaving too masculine but that’s a load of crap. Hillary played best with the electorate when she highlighted her strength, resolve and experience (3am phone). She alienated voters in the debates not with her confident aggressive stances but with her passive aggressive whining. If anything Hillary was given more leeway than a man would have been given when she ‘observed’ that she seemed to be getting the harder questions instead of angrily lecturing the questioner or keeping a dignified silence. Some people just come across better than others on TV (supposedly Hillary is much more likable in person).

Now this sort of poor sportsmanship from Clinton supporters is bad enough but trying to claim the moral high ground in the fight against sexism is particularly galling and hypocritical. Most of these women complaining about Clinton’s sexist treatment support her (partially) because of they identify with her over gender. These aren’t the rightful inheritors of the struggle for gender equity but rather (for the most part) a group that is happy to impose different expectations on men and women when it suits their purposes and complain about it when it doesn’t. The noble feminist crusaders of earlier generations understood that gender equity would come with a cost. Now, instead, we see casual complainers who seem to think that gender equity means nothing but indulging their feelings of sympathy for other women.

No one could reasonably deny that our society still holds men and women to different standards. I certainly would prefer a culture that treated men and women more similarly but far from working towards gender equity this sort of feminism as sympathy for/indentification with other women is one of the greatest forces holding back equality. When women reward other women with sympathy and support when they are subject to aggressive verbal/intellectual attacks but tells men to toughen up it sends a message about how it’s appropriate for women to act and men to act towards them. If these women were really interested in equality they should be working to eliminate the double standard that says it’s okay to be aggressive and critical of another man but unacceptable and mean to do so to a woman. So long as society sends the message that women are fragile and need to be treated with special delicacy it will also view men as more strong and capable.

Admittedly these last comments have limited direct applicability to the Hillary campaign but they are an indictment of the modern conception of feminism as sympathy for other women that underlies this supposed feminist cause for Hillary. Not only are their complaints largely unjustified it is people like them, not Chris Matthews who make sure that men and women continue to be treated differently in our society. Maybe as a society we simply don’t want real gender equity but what we would need to do to achieve it is to stop treating women as if they needed special sympathy and protection.

I used to wonder why no one argued over affirmative action using practical evidence based approaches to gauge it’s effectiveness in attaining some desired end. I now wonder how I could have been so hopelessly naive. People can’t even parse simple remarks like those Geraldine Ferraro made to the Daily Breeze,

“If Obama was a white man, he would not be in this position,” she continued. “And if he was a woman (of any color) he would not be in this position. He happens to be very lucky to be who he is. And the country is caught up in the concept.” Ferraro does not buy the notion of Obama as the great reconciler.

“I was reading an article that said young Republicans are out there campaigning for Obama because they believe he’s going to be able to put an end to partisanship,” Ferraro said, clearly annoyed. “Dear God! Anyone that has worked in the Congress knows that for over 200 years this country has had partisanship - that’s the way our country is.”

I’ve included the second paragraph to make the context clear. Ferraro is obviously a bit irked by the bizarre messianic conception many people have of Obama and the perception that Clinton’s actions are frequently seen as base political gamesmenship while they see the same actions by Obama as grand leadership. Now I actually think that is a compelling argument to vote for Obama. This skill is the essence of political talent and a useful attribute to have in a canidate or leader. However, it suggests that Ferraro is likely speaking out of understandable personal frustration rather than the devious political calculation some of the media are suggesting. But understood as an off the cuff remark what did it mean and should anyone get upset about it?

Well Ferraro obviously means that in some possible scenario where Obama wasn’t black he wouldn’t be competitive in the democratic party. The million dollar question is which scenario did Ferraro have in mind? Now it seems pretty obvious to me what she meant was something like: if everything had been the same at the start of the primaries except that Obama was white he would have quickly lost. Not only is this not a racist remark it’s probably true. Even those who are denouncing Ferraro for racism admit that many blacks are voting for him because he is black and it’s silly to think that at least some of his appeal to liberals comes from their perception of him as a healer of racial discord, a trait that (like it or not) depends on his skin color.

What then of the comment that “he is lucky to be who he is?” Far from meaning that blacks tend to have it better in America than whites as many critiques assume normal english usage suggests it merely means Obama’s race is a proximate cause of this good fortune. I mean assume that your friend went down to the corner store hoping to buy a magazine but because his job pays so little he finds himself a dollar short he instead buys a winning lotto ticket. Now you might reasonably remark, “damn man, your lucky you didn’t get that raise last month.” Obviously you wouldn’t be saying that in general people are better off not getting raises. In other words she is doing nothing more than reiterating the fact that Obama’s race is a net political assest in the democratic primary.

This view is supported by Ferraro’s contention that far from being racist her remarks are a positive racial message, i.e., people want to vote for a black man to help heal racial divisions in the country, as well as her remark that she was chosen as a vice presidential nominee because of her gender. Despite the stupendously stupid suggestion by Berkeley professors Edley and Echaveste that Ferraro is demeaning herself with this comment really all she is saying is that had she been in a similar situation but been a man she would not have been chosen. Yet more evidence that Ferraro was never suggesting that Obama owes everything to affirmative action or that blacks are better off than whites as the critiques all presuppose.

Note that this interpretation of Ferraro’s remarks didn’t require any mental gymnastics. It was the obvious meaning that jumped to mind when I heard the words. Now perhaps, because the news had primed you to hear them as racist, the same might not be true of you but really all I need to show is that there is a plausible interpretation that isn’t racist to show that we should give Ferraro the benefit of the doubt based on her past behavior. Now no doubt someone is going to try to argue that even though Ferraro didn’t mean to make a racist remark that her failure to properly guard against unintended racial effects of her words is enough justification for her public flagellation. Yet on these grounds it is the Obama people who have taken it upon themselves to widely publicize these words (even though Obama is reasonably refusing to call them racist) who should be held accountable.

As I said yesterday Spitzer deserves to be kicked out of his job for being a raging hypocrite. Or more particularly (since we tolerate some hypocrites) for doing one of the very things which he built his political reputation upon. However, the moralizing, holier than thou finger waving and faux concern is really starting to piss me off. Given the large percentages of the population who have tried soft drugs, visited prostitutes (something like 1/5) or the huge proportion of the population who has looked at porn the zero tolerance policies enforced at businesses and schools across the nation surely require a vast army of hypocrites to enforce. How many prosecutors, police, teachers and principals in our schools did (or still do) smoke pot? How many of them ruin some kids life instead of giving him a second chance while happilly keeping their own (past?) use secret? How many people who do/did view porn go along with it when their aunt, friend or even internet news posting disapproves of the activity? How many enforce their companies zero tolerance policies when someone is caught browsing questionable material rather than offering them a second chance? Who fails to speak up when a fellow teacher, secretary, attorney, whatever gets fired when drunken pictures of them at a party appear on the internet? I could continue but it would be too easy.

Ohh sure everyone has some excuse about why their behavior doesn’t really count. It was a different era back then, the pot now is weaker. I never looked at internet porn, it was just playboy (did you ever forget and accidently take it to work?). But everyone has a story. No doubt Spitzer told himself what he was doing was different because he made sure to give these girls extra cash. If it really is so different then there is no reason to hide it right? Everyone else would see it wasn’t like these bad things. Maybe you say you have to enforce the rules, that’s what the organization expects. But Spitzer could say the same and ultimately the reason our corporations and institutions have zero tolerance policies is that no one has the balls to say, “hey wait a minute, maybe this stuff isn’t that bad.” I’m not saying you need to admit to all your private peccadillos but don’t be so intimidated by them that you jump on the puritanical band wagon.

Ohh and don’t try to pretend that your real concern in this matter is Spitzer’s children or wife. I mean which do you think is going to be worse for them: Spitzer being accused of patronizing a prostitute or being accused of using a prostitute and losing his job. Hell, if your only concern here was the personal harm to his wife and children then why the fuck are you trying to make their lives worse by kicking Spitzer out of his job?

It appears that Spitzer was seeing prostitutes while publicly denouncing people and trying to send people to jail for operating a high end prostitution ring.

In one such case in 2004, Mr. Spitzer spoke with revulsion and anger after announcing the arrest of 16 people for operating a high-end prostitution ring out of Staten Island.

“This was a sophisticated and lucrative operation with a multitiered management structure,” Mr. Spitzer said at the time. “It was, however, nothing more than a prostitution ring.”

Now prostitution should clearly be legal. I don’t think there is anything inherently wrong with explicitly paying money for sex, and let’s not kid ourselves what differentiates prostitution from dating the guy with the nice car is only the explicitness of the transaction. In fact criminalizing prostitution, and thus requiring those women who want to monetize their sexual allure to give up their autonomy and hitch themselves to a rich guy, seems decidedly sexist to me. True, as a practical matter it is right to worry that some women may get treated badly or abused in prostitution but once as a practical matter the question is will less women be hurt if prostitution is legal (or tacitly tolerated) or if it is illegal?. I think the answer is clear. If prostitutes don’t fear arrest they can seek police protection from extortionists and pimps, can receive health care, have worker’s rights and otherwise be protected by the same systems that protect the rest of us but so long as it is illegal we create a shadowy underworld that will trap the most desperate and abused women and use the illegality of their business as a means to subjugate them.

But while some argue that the moral acceptability of prostitution is a defense of Spitzer I couldn’t disagree more. At worst patronizing prostitutes is a relatively minor moral failing. Knowingly placing people in prison who don’t deserve to be there is on the order of kidnapping, rape or murder.¹. Sure, we can’t expect any one politician to undo all that is wrong with our justice system. If Eliot Spitzer had stood up and said, “I think we should legalize prostitution,” his political career probably would have died right there and done no one any good. But it’s one thing to pick your battles carefully, it’s another thing entirely to exercise your discretion to send people to prison for being involved in the same activities you do so you can further your political career. Unless evidence comes to light that Spitzer fought to minimize the penalties or change the law on prostitution he deserves to hang for hypocritically sending people to prison for offenses he must not have thought warranted that treatment. At the very least he doesn’t deserve a free pass from the people when he wouldn’t give that pass to others.

Now some complain about the use of seemingly absurd application of laws like the Mann act or arcane financial crimes to ‘get’ Spitzer. I couldn’t agree more with the queasy unease many people have about stretching these laws to cover Spitzer’s activity to satisfy the people’s moral outrage or serve political ends. But this sort of tactic was Spitzer’s calling card. Two wrongs don’t make a right and I believe we ought to take the high road and refuse to do to Spitzer what he did to others but having made his career on this sort of ‘dirty’ legal trick it’s appropriate that he lose it for the same reason.

Ultimately if this had been Bill Clinton chared with say smoking pot I’d go to the mat for him. Certainly he has never openly spoke in favor of legalization but he didn’t choose to advance his political career by throwing others into prison for the same things he himself did and I got the impression that his administration at least slightly favored liberalization (his pardons, DOJ attitude toward MMJ). However, if we don’t hold people like Spitzer accountable to their own standards we further encourage politicians to victimize the less powerful with faux moral outrage. More on this later.

Now, I’ll leave you with some links for purient interest about the girl he was with and other details. I would feel sorry for her if I didn’t think she was sure to get a generous offer from playboy, likely to get a book deal (or payoffs from other clients) and maybe even have her CD produced.

• people about Kristen
• Hufington Post, lots of links
• Kristen’s MySpace Page, note the creepy guys leaving messages.
• Details About Trysts
• Post Identifies Prostitute

Throughout this entire campaign Obama has unabashedly sought to use the caucus system to his advantage. Despite the stark differences between the results of caucuses and one-person one-vote primaries Obama seems to have every intention of using these antidemocratic means to secure the nomination. Not only do caucuses place unfair peer pressure on those who might be not want to be seen as voting against hope they obviously disenfranchise those who don’t have the time to spend hours in a caucus as well as those too apathetic or sleep-deprived to attend. Don’t our democratic values require that Obama repudiate these votes and agree to rerun the contests in these states using primaries?

NO! That would be fucking stupid. Just as stupid as the recent petition from MoveOn.org to “let the voters decide” or any of the huge number of blogs whining about antidemocratic super delegates. All of the bizarre rules about how the democratic party chooses it’s nominee affect who is chosen. If caucuses had been banned it’s reasonable to think Obama might have quickly been dismissed as unelectable. Hell, even if you decide to count caucuses it’s not clear it’s fair to say that Obama is ahead in the popular vote. After all the citizens of two entire states were disenfranchised by the actions of a few of their state officials. Even if you agree (as do I) that the national party is reasonably deterring rule breaking that doesn’t mean excluding the millions of innocent residents in those states isn’t antidemocratic¹. Hell, if you believe superdelegates are antidemocratic then you should think the entire primary process in which national party officials reserve early voting for certain states is inherently antidemocratic and it seems clear that placing Iowa first while obscuring the results from large coastal states like New York and California in the mass of results from Super Tuesday was a substantial and likely decisive factor in Obama’s lead.

But we don’t even need to go there to see this antidemocratic argument is total bunk. The entire idea that somehow any deviation from the popular will (even in a private political organization) is somehow antidemocratic (in a bad sense) is simply absurd. I mean is the supreme court antidemocratic? It overturns majoritarian demands based on pre-written rules. Should Senators refuse to filibuster horrific bills so long as 51% of the population (or 51% of representatives) favor it? Hell, the very idea of the constitution is a set of rules that override majoritarian sentiments. Is it antidemocratic²? In a certain technical sense these things are probably ‘antidemocratic’ in that they circumscribe majoritarian power but they are not antidemocratic in the sense of being antithetical to the ideals of a free republic as the word is used in common discourse. Thus it’s simply not true that Clinton’s superdelegate strategy is antidemocratic (in a bad sense).

If you still aren’t convinced ask yourself if you think the parliamentary system used throughout most of Europe is antidemocratic. After all the parliamentary system chooses the prime minister without any direct input from the voters. Sure you might point out that most canidates are committed to a particular party and thus, just like the US electoral college, the voters in effect pick who will be the next prime minister; but this overlooks what happens when no party controls more than half the seats. Just as in the democratic primary when parliament is too closely divided for any one party to claim a majority the MPs get together and decide who they will elect as prime minister based on coalitions and bargains without any voter input at all. Surely if it isn’t antidemocratic to totally leave the decision in the hands of our duly selected representatives then it can’t be antidemocratic to select a canidate based on the popular vote as well as the judgement of the superdelegates that we selected.

Ultimately there just isn’t a serious argument that Clinton is doing anything different than Obama in using the existing rules of the democratic party to maximum effect in pursuing the nomination. Obama isn’t going to renounce caucuses even though they skew the vote in his direction nor is Clinton going to renounce superdelegates. Now there may be reasonable arguments that the superdelegate system is bad but the mere fact that it can reverse the delegate count doesn’t make it any more suspect than our constitution or supreme court. Realistically, I think what is going on here is that most Obama supporters (like almost everyone) were pretty ignorant about the nature of the democratic nomination process and just assumed that it was a simple majoritarianish election. Thus when they felt they’d won that majoritarian election it felt deeply unfair that their ‘win’ might be undermined by these superdelegates though of course in actuality they had never won and it was never a simple majoritarian contest. Besides, nomination decisions aren’t about being fair at all; they are about maximizing the chances that reasonable views will prevail for the nation.

That is why, despite the fact that it’s perfectly reasonable for her to win using superdelegates, Clinton should drop out of the race now. I voted for her in the California primary because I thought she was a more reliable choice to run the country but for the good of both the party and the country she should give it up now. Like it or not people perceive the superdelegates to be some kind of sketchy cabal overturning the will of the people rather than the way they see senators or MPs. By extending the campaign Clinton will only tarnish the appeal of both her an Obama and if she wins after this she will immediately alienate a large section of the party. I mean can you imagine how many people would be disenchanted with the party if the first credible black canidate won the national party vote only to be passed over because of opaque party machinations of (mostly white?) insiders? It’s totally unfair but as I said the nomination is not about being fair to the canidates but about picking someone a good canidate who is likely to win. Besides, after she started whining about always being asked questions first I began to have serious doubts about her electability. Doesn’t matter if she is right you can’t whine while running for president (and yes it would be just as bad if not worse if she was a man).

I don’t think my prior post on telecom immunity explained what I meant very well. Ultimately my concern with holding the telecom companies liable for privacy violations under the current rules is that these rules, like most of our laws, were not designed to be enforced with computational precision. While my recent depressing experience with the jury system has shown me how ridiculously (and disturbingly) far this view can be taken (letting sympathy control) even congress takes it for granted that the prosecution and enforcement of most laws will be curtailed by common sense and good judgement. When the legislature writes laws about speeding it doesn’t write in exceptions for every possible contingency (say taking someone in terrible pain but not at risk of death to the hospital) but expect prosecutors and juries to exercise their judgement and not enforce the law when it leads to perverse results. A brief look at the FISA legislation reveals it is no different.

Critically FISA does not contain any general procedure to handle exceptional circumstances. If the government ever discovered compelling evidence that one of the 5000 people with a certain first name in the US had a live nuclear bomb and planned to detonate shorty FISA would offer no legal means of handling the situation. In this case attempts to execute physical searches on these people might risk spooking the terrorist into early detonation (and is no less of a constitutional violation) and the right answer (if the intel was good) would be to simply monitor all the communications of those individuals and pay them damages after the fact for the constitutional violation. However, FISA doesn’t allow a warrant to be issued without probable cause and being one of 5000 people with a particular name just doesn’t qualify and the executive couldn’t even plausibly bluff the telecoms with one of the non-warrant provisions as they only apply to non-US persons. This is just one hypothetical but it illustrates the point that FISA simply can’t handle all exigent circumstances and may sometimes need to be ignored just like we ignore other laws in an emergency.

I don’t think this is a flaw in FISA. We can’t have a general legal process to handle monitoring in truly exigent circumstances without creating the potential for massive abuse by the executive. Rather the law should continue to make these acts illegal so only when the decision maker is suitably convinced of the need to head off imminent danger that they risk legal penalties and do it anyway hoping that people will choose not to prosecute them after the fact. The question is who should be making this call.

Currently the FISA process places that burden primarily on the telecoms. A poor choice as they aren’t in a position to evaluate the true danger being faced. I would agree completely with the strict enforcement of liability against the telcos in the future so long as we tweaked the law to allow the attorney general to issue the telcos a letter assuming their liability for them. Issuing such a letter in violation of the law would carry a criminal sentence for the attorney general ensuring it would only be used in truly exigent circumstances but merely knowing such a general purpose out existed would relieve the telcoms of the need to judge the severity of an illegal request and try to guess how it will be viewed in several years and allow them to always follow the letter of the law.

As far as the current lawsuit is concerned I see a very small benefit and, so long as we retain the current framework, a danger of causing them to second guess government claims of exigency in the future. Or to put the point differently I kinda feel that back when this program started the telecoms were between a rock and a hard place. Remember the (kinda insane) attitude people seemed to have after 9/11? If the telcos had refused to hand over data even if it was illegal when the government said it was vital to stopping terrorists and it turned out that we failed to avert a major attack as a result they would have been held responsible. Once the telcos had signed on to the program they couldn’t very well back out once they realized government officials had overstated the danger since that would simply appear to be an admission of guilt to a jury with retrospective bias.

So obviously it’s good for telephone companies to generally follow the laws about the disclosure of our private data. However, while for most violations of the law there is a compelling argument to exact penalties to deter future behavior I’m far from convinced that this is the case with respect to the involvement of the phone companies in the domestic spying scandal. In particular do we want the phone companies to be second guessing national security requests?

It’s a complicated question but my intuition is that the answer is no. Whatever you think about how clearly illegal their decision was in this particular case what’s relevant for the future is the fact that it’s certainly possible for future government requests to occur in a grey area of the law, especially if they invoke special emergency provisions. Moreover, whether we like it our not in practice the law doesn’t really penalize what it says is illegal on the books. Rather we apply the law flexibly ensuring that what might be technical violations of the law aren’t treated as such in exigent circumstances. However, the only reason not to grant immunity to the telecoms is to create a precedent demanding they second guess executive requests and refuse those they decide are ‘illegal.’ But given our tendency to bias our interpretation of the law depending on the context this means that the telecom companies would have to be making judgements on the actual seriousness of the claimed threat. Even though a genuine urgent, serious need for the disputed information would have caused us to forgive and forget the administrations requests it simply wouldn’t suffice as a defense for a telecom to now try and claim they were justified in bending the rules because it might have been a serious situation.

Now the telecoms aren’t exactly an optimal place to put responsibility for weighing the seriousness of executive need for information and thus what constitutes acceptable grey areas and unacceptable overreaches. I agree this would hardly be a compelling point if there was some great service the telecoms could provide by holding out but the truth is that the executive branch has so many tools and methods for violating the privacy of americans that this liability really brings no benefit. In fact to the extent that people put any faith or trust in this sort of safeguards rather than placing the safeguards and penalties inside the government it puts us at further risk.

I don’t think we should eliminate the law under which the telecoms could have been liable. If it happens again they should need to get another immunity bill passed. Nor do I think the democrats should just role over and sign this bill without a fight. The condition for granting immunity should be a full disclosure by the administration to congress (who could then collectively decide what to disclose to the people) of the full extent of these problems. Then congress should work on passing bills that make high ranking government employees personally liable for knowingly making illegal requests of telecom companies. These people have the information and position to know what is going on and they should be the ones taking the risk in extreme circumstances.

Much has been made recently over the fact that people are more inclined to say they will vote for Barack in polls or caucuses then they are to vote for him in a secret ballot. The supposed explanation of this is that people are reluctant to admit their racist biases to pollsters or in caucuses but in the privacy of the voting both they can’t bring themselves to vote a black man. The ‘evidence’ for this is merely the fact that other studies have revealed that people are reluctant to admit their racism to pollsters.

Now in a nation of 300 million obviously this description will describe at least one person but this theory seems more motivated by the desire of Barack voters to feel good about themselves and outraged at those who won’t vote for him than than by serious thought. It would be silly to deny that race cuts both ways in this election (i.e. Barack loses as well as gains votes because of his race) but is it reasonable to think that voters who view themselves as race blind but aren’t would tell pollsters they are voting for Barack? It seems more plausible these voters would simply say they are voting for Hillary and give some other explanation. After all we don’t see online daters telling lies about who they want to date. They just offer non-racial explanations for what can be shown to be strongly race motivated behavior.

A much more plausible explanation for the majority of this effect is the symbolism of voting for Hillary as opposed to Barack. As I’ve observed in conversations around campus and discussions at IDS (debate club) even the Hillary supporters view her as a cynical, conniving politician who is represents the standard wheeling and dealing approach to politics. Now I think it’s rank stupidity to fall into this emotional trap where we assume that campaign donations, realpolitik, experience in washington are bad things just because they are in tension with apple pie and some idealized view of our republic we learned in third grade but given the preconceptions of most Americans this makes a vote for Hillary a cynical pessimistic vote. Many people undoubtedly think that the imperfect real world requires a cynical, well-connected politician like Hillary but feel bad about it. While saying you are voting for Hillary doesn’t project the idea that you are racist it does project the idea that you cynically reject the message of hope and change that Barack seems to stand for in the popular imagination.

Anyway having said this I should add that I’ve started to warm up to Obama a fair bit recently. Some of his campaign proposals encouraged me to go download his audiobook and away from the stupid idealism of his public persona I’m starting to have more confidence he would be an excellent president. Given the tone of his book, his constant anthropological relationship to myths and symbolism and clear understanding of the harsh dog eat dog nature of the world I’m starting to think he is a very smart man who is extremely skilled at projecting a certain mythic status and symbolic role for himself but isn’t the sort of idealistic antidote to realpolitik that his supporters take him to be.

What particularly swayed me towards Obama is the trajectory of his religious belief. More or less it seems (though I haven’t gotten here in the book yet) that for much of his life he was curious about religion but was unwilling to actually believe in it until he was a political figure who really needed a ‘faith’ to connect with the community. As it is I’m now sorta unsure who I prefer (leaning vaguely Obama) but if I knew he had really joined his church for political expediency I would support him in an instant.

I’m listening to an religious commentator on NPR talking about the anti-Mormon bias that Mitt Romney’s campaign revealed. Now I don’t know if there is much evidence of this supposed ‘bias’ or not but I’m sure that the comparison to antisemitism is unfounded. The Jews (since we don’t really mean Semites) are a cultural and ethnic group as well as a religious one and antisemitism refers to a prejudice against this ethnic/cultural group not hostility to the Jewish religion. There is every difference in the world between questioning someone’s judgement because he believes something stupid and hating them because of their heritage. Mormons (like every religious person) can always choose to believe something more reasonable but you can’t choose to have a different ethnicity.

Of course not all types of undesirable prejudice rest on immutable characteristics. Certainly the unfounded bias and suspicion of catholics at an earlier time in our history is another black mark on our past. However, what made this a harmful prejudice rather than a reasonable disagreement over religious views is the nature of the suspicion that Catholics labored under. It wasn’t merely that people felt catholics believed stupid things or even thought this made their judgement suspect. This might warrant voting against them for president but wouldn’t stop you from being friends with them or accepting them into society. Rather there was a general antipathy toward Catholics that extended to viewing them as inferior people. There is no good reason to believe there is any substantial antipathy for Mormons the way there used to be for Catholics. Even hard core religious right types seems to view Mormons as merely having wacked out religious beliefs but generally being good people.

Still if you think that merely voting against someone on the basis of your religious views is prejudiced and unacceptable then Romney supporters don’t have much ground to stand on. After all Romney has repeatedly made statements about the importance of having someone of faith in the white house. You can’t have it both ways. Either religious views are reflections of the person’s identity and character and thus valid considerations for the voting booth or they aren’t and atheism shouldn’t be seen as a disqualifier for election.

I mean Jesus Christ this is like running on a campaign of ‘kicking out those damn wetbacks’ and then complaining that people didn’t vote for you because you’re black.