Mojo - June 2005

Racism Rebooted

| Wed Jun. 29, 2005 2:40 PM EDT

Gary Younge has an important article in the Nation whose ostensible theme is the recent spat of re-trials in the South for racist murders during the 20th century that have gone unpunished. The larger underlying theme, though, is that while many of these trials do offer much in the way of purging the South's dark past, they do nothing to address the broader systemic racism that still haunts the region:

[W]hile the crimes that occurred during segregation were rarely systematic--the individuals who carried them out and the manner in which they carried them out were far too crude for that--they were systemic. They were born from a system of segregation that worked to preserve white privilege in the face of a concerted progressive onslaught--a system in which the white community had to collude in order for it to function.

While the scale and nature of those privileges may have changed, the privileges themselves still exist. You can see them in the racial disparities in health, employment and poverty; you can watch their physical incarnation in the segregated academies to which so many whites send their children; and you can observe them on death row, where so many black parents see their children being sent.

Indeed, there seems to be an ongoing attempt across the nation to single out these murders, the Ku Klux Klan, the lynchings that went on for centuries, and atone for them, in an effort to purge the racist ghosts of old. The North has been doing this to the South for years, as if there's only one backward region in the country that still has to overcome racism. Yet, as Younge notes, "the top five residentially segregated metropolitan areas in the United States are Milwaukee, Detroit, Cleveland, St. Louis and Newark … [Y]ou will find higher rates of black poverty in Wisconsin, Illinois and West Virginia than Mississippi." That's not to say Mississippi's in the clear—far, far from it—but it's also not even close to being the sole source of racial inequity in the United States today.

This brings to mind Howard Dean's speech last year about wanting his party to appeal to the guys with Confederate flags in their pick-up trucks was right. Insofar as he was suggesting that racism is something that can be overlooked, as many believed, there was something troubling about his speech, certainly. But insofar as he was pointing out that "northern" whites have no real basis for feeling morally superior to Southerners over race issues, as tends to happen, he was exactly right.

UPDATE: In a similar vein, more reflections on the trial of former Ku Klux Klan leader Edgar Ray Killen here, from David Cunningham in the Boston Globe.

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From Public Use to Public Benefit

| Wed Jun. 29, 2005 1:52 PM EDT

Justice Clarence Thomas' scorching dissent in Kelo, the Supreme Court's case on eminent domain, is worth a closer look. As those who have been following the issue know, the takings clause of the U.S. Constitution reads, "Nor shall private property be taken for public use, without just compensation." It's long been understood that taking private property out of one person's hands and putting it into the hands of another, without "a public use" justification, is unconstitutional. But the meaning of "public use" remains a topic of debate. The Supreme Court's 5-4 ruling in Kelo—that economic development is sufficient justification to invoke eminent domain— rests on a long history of court cases in which the definition of "public use" has been something along the lines of "public benefit."

Thomas argues that if the framers had really intended the powers of eminent domain to be used for "public benefit" rather than "public use", they would have said so. In many founding-era documents, Thomas writes, care was taken to distinguish primarily between "general welfare" and "public use," with general welfare suggesting the equivalent of "public benefit." The fact that the frames did not use this phrasing in the takings clause, Thomas believes, is a sure indication that the more literal definition of "public use" is exactly what they intended.

Early eminent domain cases bear this philosophy out. But in 1896 in Fallbrook Irrigation Dist. Vs. Bradley, the term "public purpose" was introduced into the vernacular, to justify the condemnation of private property in order to build an irrigation ditch. Introducing the term, Thomas argues, was unnecessary: the presiding justices themselves had already noted that "all landowners have the right to a proportionate share of the water," and Justice Peckham had declared the condemnation was concededly for a direct public use. As a result, this set a precedent the far broader definition of "public use" as "public benefit" that rules the courts today.

Thomas also contends that another common practice, that of deferring decisions of what justifies "public use" to legislators, is ultimately baseless as well. In the case of United States vs. Gettysburg Electric R. Co. (1896) in which the Federal government sought to take land to build the Gettysburg Memorial—another obvious example of public use—the Court ruled, "When the legislature has declared the use or purpose to be a public one, its judgment will be respected by the courts, unless the use be palpably without reasonable foundation." Thomas argues that the Bill of Rights says nothing about deference to legislatures, and that none of the bill's other fundamental rights have ever been granted such privilege.

With obvious distaste, he concludes:

The court relies almost exclusively on this Court's prior cases to derive today's far reaching, and dangerous result… but the principles this Court should employ to dispose of this case are found in the Public Use Clause itself, not in Justice Peckham's high opinion of reclamation laws… When faced with a clash of constitutional principles and a line of unreasoned cases, wholly divorced from the text, history, and structure of our founding document, we should not hesitate to resolve the tension in favor of the Constitution's original meaning.

China and Unocal

| Tue Jun. 28, 2005 6:22 PM EDT

In the midst of trying to sift through the hysteria about China's bid for Unocal, I stumbled across this Sebastian Mallaby column that explains very clearly why this deal is nothing to fear:

What if there were a real oil crisis? A simulation conducted last week in Washington suggested that a couple of middling terrorist attacks in Saudi Arabia and Alaska would be enough to cause a global oil shortage, sending prices above $100 a barrel. Yet Chinese ownership of Unocal wouldn't affect this picture. China could respond to the crisis by routing Unocal's energy to its own industries. But again, oil is fungible, so this wouldn't matter.

That's right, and I'm a bit puzzled why economists like Paul Krugman seem to have suddenly forgotten everything they know about international markets and free trade on this subject. See also this old Tyler Cowen post on a very similar point. Now we already have Bill Gertz of the Washington Times running around screaming and over-hyping the Chinese military threat; we certainly don't need confusion and alarm about an oil deal that, in the end, really isn't going to affect the United States very much. To paraphrase Robert Farley, why should oil scarcity be any more a source of conflict between China and the US than it will between, say, Europe and the US? I haven't seen any of the China hawks address this point yet. What could hurt the United States very much, however, is a mercantilist war between the two countries, fueled by misconceptions and heated rhetoric on both sides. It's enough to make you think that Congress wants a war with China.

Kerry on Iraq

| Tue Jun. 28, 2005 2:19 PM EDT

I was all prepared to like John Kerry's advice to George Bush on Iraq in the New York Times today, and much of it is sound if sprinkled with, perhaps, wishful thinking. But this part is just wrong:

[Bush] should also say [in his speech tonight] that the United States will insist that the Iraqis establish a truly inclusive political process and meet the deadlines for finishing the Constitution and holding elections in December. We're doing our part: our huge military presence stands between the Iraqi people and chaos, and our special forces protect Iraqi leaders. The Iraqis must now do theirs.

As the International Crisis Group has detailed, there is no conceivable way that the Iraqis can hammer out a constitution by this August 15 deadline—and if the constitution is done hastily, or wrong, or ineptly, that will create far greater problems in the country than we're seeing now. There is a clause in the interim law that allows the government to extend the constitutional drafting process until February 15, 2006; that seems like a reasonable extension, but if the Iraqis need longer, they should be able to take longer. A constitution isn't worth the paper it's printed on if not everyone's happy with it. It's also curious that Kerry thinks the insurgency will fade away if a constitution is drafted; honestly, the last thing we need is more wishful thinking that all Iraq's problems will fade away with yet another milestone. Remember how the handover was supposed to solve everything? The January 30 elections?

At any rate, Kerry's big idea here—besides bringing international troops in, which may or may not work—is to set firm deadlines for withdrawal. In general, I think this is the wrong idea; at the very least, a drawdown of this sort, done before certain military goals are achieved, needs to be accompanied by a reduction in those goals, as Daniel Byman has warned. If the Army is really on the verge of breaking and/or the Iraqis want us out, then a withdrawal will happen, otherwise, it can only happen if we're willing to acknowledge that a stable and democratic Iraq is not a feasible goal. There's no use straddling this point. It is not at all likely that a national security force can be trained in six months, as Kerry hopes, and if the government does decide to rely heavily on Shiite militias and Kurdish peshmerga for security, then Afghanistan-style "organized anarchy" is in the cards for the future. Not democracy or pleasant stability.

At any rate, I still prefer Kerry thinking seriously about the problem to a president still stuck in denial about Iraq, even if the Democrat's ideas are painfully misguided. The truth, I guess, is that there are no bright ideas for Iraq. Sometimes you are just screwed. Either the U.S. stays on for years and hopes it can muddle through the reconstruction phase, or withdraws prematurely and hopes the region doesn't disintegrate and implode. As such, I'd be less interested in hearing bright ideas from the president tonight and more keen on hearing him say what, exactly, he hopes to achieve in Iraq—including whether he expects the United States to keep permanent military bases in the country—and why, exactly, he believes those goals can or cannot be met. But over the past four years we've yet to hear anything remotely honest from George Bush, which is why I'm not even going to bother watching the speech.

'Kafkaesque'

| Tue Jun. 28, 2005 1:10 PM EDT

Human Rights Watch has put out a new report on the abuse of the material witness law since September 11, 2001:

Congress enacted the current material witness law in 1984 to enable the government, in narrow circumstances, to secure the testimony of witnesses who might otherwise flee to avoid testifying in a criminal proceeding. If a court agrees that an individual has information "material" to a criminal proceeding and will likely flee if subpoenaed, the witness can be locked up—but, in theory, only for as long as is necessary to have him testify or be deposed.

Since September 11, however, the U.S. Department of Justice has deliberately used the law for a very different purpose: to secure the indefinite incarceration of those it has wanted to investigate as possible terrorist suspects. It has used the law to cast men into prison without any showing of probable cause that they had committed crimes. The Justice Department has also refused to respect fundamental constitutional and human rights of detainees, including the rights to be notified of charges, to have prompt access to an attorney, to view exculpatory evidence, and to know and be able to challenge the basis for arrest and detention.

All in all, at least 70 men—all Muslims but one—have been detained under this law. They are kept in federal prisons, they haven't been charged, the evidence against them has been kept secret, and the government doesn't even need to have probable cause of criminal conduct. They just disappear into a black hole. And it's wrong to argue that the government can do whatever it wants to these "terrorists" because the whole point is that no one knows whether they're terrorists or terrorist sympathizers or people with information about terrorism or just plain innocent. Presumably many are just plain innocent: At least thirty of these men have never even brought before a grand court of jury to testify. HRW calls it "Kafkaesque"; that's perfectly apt.

Anyway, cue the legion of conservatives who don't trust our government to send out Social Security checks but think it's perfectly reasonable for the Justice Department to be able to wave its magic wand and "guess" without evidence or cause at who, exactly, is a threat to national security.

The Army We Have

| Mon Jun. 27, 2005 7:24 PM EDT

Over the weekend, Charles Krohn had an important op-ed about the future of the United States military. One of the things to watch over the next few years is whether the Army decides that it can't risk ripping itself apart over the occupation in Iraq. The deadly insurgency war there is having a noticeable effect on recruitment, which is in turn putting the all-volunteer Army in peril. When the breaking point is reached, there will only be two options: rapidly drawing down from Iraq, even if the military's goals there have yet to be achieved, or calling for a draft. I'm not sure even the most ardent hawks in the Republican party would be willing to take the heat for the latter.

The other point Krohn raises is that Iraq's not likely to be the only unpopular war we ever fight, nor the only war whose ferocity makes potential recruits cringe and demur. If, as he says, our "adversaries sense they can win by wearing us out," it's time to think about the consequences of this. Krohn believes the solution is for our leaders to be absolutely clear, in every conflict, about why we're fighting, what it will involve, what our goals are, and why Americans should support it. Clearly the Bush administration has done a miserable job on that front with regards to Iraq, but it's not clear that a little pep talk, a dose of honesty from our leaders, and some plum recruiting incentives can swoop in and cure what ails the military. If the United States is going to stick with a highly-educated, all-volunteer force, then perhaps it's time to rethink what sorts of wars and conflicts we can and should realistically get ourselves into, before deciding that what we need is a draft to fill the ranks. As Phillip Carter likes to say, we may get to the point where military missions are dictated by force structure, rather than the other way around. Whether that's a bad thing or a good thing depends on what you think our foreign policy should look like over the coming decades.

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Patching up Kyoto

| Mon Jun. 27, 2005 1:03 PM EDT

Joseph Stiglitz notes one of the key flaws of the Kyoto Protocol: it doesn't give countries any incentive to preserve their rainforests, despite the fact that many poor countries have some rather obvious incentives to cut down their forests, and despite the fact that forests obviously play a useful role in keeping carbon concentration in the atmosphere down.

Now some developing countries like Costa Rica have begun paying for environmental services, like forest maintenance, to counteract this trend; but the program could really kick off if rich countries could kick in a few bucks. And why should they do such a thing? Because those countries who have signed onto the Kyoto Protocol are actually being subsidized by rainforest countries:

The Kyoto Protocol has generated new markets for trading carbon emissions, such as the European Emissions Trading Scheme (ETS). At current carbon prices, the value of carbon sequestration by tropical rainforests likely equals or exceeds the current level of international aid being provided to developing countries. In effect, the poor are aiding the rich.

These are some weird glitches in the whole system, and some leading countries would rather just sit around and wait until 2012 to fix them. That, needless to say, would be far too late.

Do no harm -- unless you're a "behavioral scientist"

| Fri Jun. 24, 2005 6:00 PM EDT

The New York Times today reports that military doctors at Guantánamo have been schooling interrogators in how to best to mess with detainees' bodies and minds, including "providing advice on how to increase stress levels and exploit fears." Now, call me a stickler, but this seems just a bit at odds with the old Hippocratic Oath, no? Retorts the Pentagon: Only if you pedantically insist on viewing the doctors as, you know, doctors.

Bryan Whitman, a senior Pentagon spokesman, declined to address the specifics in the accounts. But he suggested that the doctors advising interrogators were not covered by ethics strictures because they were not treating patients but rather were acting as behavioral scientists.

He said that while some health care personnel are responsible for "humane treatment of detainees," some medical professionals "may have other roles," like serving as behavioral scientists assessing the character of interrogation subjects.

Behavioral scientist, heal thyself.

Poor Paranoid Karl

| Fri Jun. 24, 2005 5:07 PM EDT

Billmon gets Karl Rove exactly right. In the face of an unpopular war and failed attempt to abolish Social Security, the Republican strategist is just looking for a scapegoat. Take some responsiblity for yourself, Karl! Yeah, sure, American liberals want to hold hands with all the terrorists and skip through the fields singing and laughing to the sound of music. Right after we set off a few IEDs all around Texas. The black helicopter crowd might lap that all up, although judging from the video of Rove's speech, even New York Republicans seemed a touch uncomfortable listening to Rove's paranoid fantasies—I don't know, perhaps because they actually know a few liberals and know full well that they're just as against terrorism as anyone else? Perhaps.

Also, here was another of Rove's unhinged remarks: "I don't know about you, but moderation and restraint is not what I felt when I watched the twin towers crumble to the ground." Well then it's a good thing that someone in the Bush administration had the "moderation and restraint" not to, say, nuke all of Afghanistan after 9/11. Keep Rove away from the big red button, thanks.

Ginsburg Unhinged

| Fri Jun. 24, 2005 4:37 PM EDT

Speaking of Supreme Court justices, while I realize that it's not Mark Levin's fault for parroting GOP talking points—they do sound so convincing—this bit is just silly: "Bill Clinton and his Senate friends didn't accept replacing [retiring Justice] Byron White with another who shared his judicial philosophy [in 1993]. No, they aimed for the fences and hit a homer with Ruth Ginsburg." Um, right. Ruth Bader Ginsburg—the same Ruth Bader Ginsburg who criticized Roe v. Wade for harming legislative progress on abortion rights—was "aim[ing] for the fences." The same Ruth Bader Ginsburg, by the way, who has struck down fewer laws than anyone else on the Rehnquist Court, and is hence the least "activist" judge there. Ginsburg was also, mind you, Clinton's last choice to fill the vacancy (Then-New York Governor Mario Cuomo was his first.) Where do they come up with this stuff? Levin is entitled to be a shill. What he is not entitled to is his own set of facts. I assume that in the coming weeks we're going to hear a lot about how Bill Clinton nominated a set of unhinged radicals to the Supreme Court, so there's no sense in Bush restraining himself. It's charming, but not true.