The Weekly Sift

In this week’s Sift:

• The Discussion We Ought To Be Having. Beyond all the divisive nonsense lies a question Right and Left ought to be collaborating on: What kinds of things should government be doing?
• The Next Time You’re in the Bookstore … look for Big Boy Rules: America’s Mercenaries Fighting in Iraq by Steve Fainaru. He comes down hard on Blackwater, but finds a strange empathy for the guys carrying guns. Meanwhile, I suggest some beach reading.
• The Spectrum of Crazy. Mainstream Republicans would like to a claim that a firm boundary separates them from the right-wing terrorists. But where is it?
• Short Notes. Juan Cole on Iran’s election. Swine flu is a pandemic. The latest clever Republican wordsmithing. And more.

It’s easy to make fun of the state of political discourse in America today. In both the major media and in our own conversations over coffee, we spend valuable time and energy talking about David Letterman’s jokes, Obama’s birth certificate, and the latest ridiculous thing Rush Limbaugh said. I do it too; it’s hard not to. This stuff is the junk food of politics. It gives you lots of quick energy, but does nothing to nourish our democracy. Even if you try to give it up, other people push it at you. (“Have you tried these barbecue potato chips? They’re fabulous!”)

So what should we be talking about? Where could Right and Left alike devote their attention to a meaningful discussion, one that could go somewhere? Last week I interpreted Obama’s Cairo speech in terms of rebuilding a center and depolarizing the America/Islam split. What would do the same thing for Right and Left in America?

It seems to me that the answer is obvious: We ought to be talking about the proper role of the public sector in our economy. That same basic issue shows up again and again in various forms: What should the government role be in health care? In banking? In rebuilding the electrical grid? In the transition to renewable fuels? In mitigating the consequences of global warming? How long should the government continue to own General Motors, and how active a shareholder should the Obama administration be?

In spite of all the polarizing rhetoric on both sides, there actually is a center to build up. Americans share a broad consensus about some basic principles, and our differences can be framed as differences of degree (that can be compromised on) rather than differences of kind (that can’t).

For example: Other than a negligible number of radicals on each side, Americans largely agree that we need a mixed economy. Some things the government should do directly, some things the government should stay away from, and some things should be done by private industry with greater or lesser amounts of government regulation.

The book I review in the next section examines a situation where we let the private sector go too far — mercenaries in Iraq. Military action and profit incentives don’t mix well. We want soldiers to be motivated by patriotism, by a sense of honor and duty, and by loyalty to each other — not by a big paycheck. And when military power gets misused, we need the kind of transparency you just can’t get in the private sector.

But even very far-Left liberals learned from the failure of the Soviet Union. The government does a bad job of innovating, of coming up with new products, of responding quickly to consumer preferences, and of converting to whole new models of delivering services. In a classic Adam Smith situation, where you have a bunch of commodities with a bunch of uses (none of which are matters of life and death), you can’t beat markets for allocating those resources quickly and efficiently. A lot of seed money to develop internet technologies came from porn — no government would have thought of that. One reason research in carbon-fiber materials is paying off is that people happily pay big money for ultra-light bicycles and tennis rackets and golf clubs. No one has ever been quite that excited to pay their taxes.

Health care (which I promise to discuss in more detail when the Sift comes back in July) is a difficult issue precisely because it combines both aspects. Medical emergencies are like hostage situations: “Do what we say or someone you love will die.” The free market is absolutely the wrong model here. You’re in no position to negotiate. You need to trust your doctors and believe they have your best interests at heart — not make allowances for their salesmanship or take the buyer-beware attitude that a market requires.

But routine-care delivery resembles retail. Subtle changes in technology or social preferences or skilled-to-unskilled salary ratios might completely transform the best way to deliver particular kinds of care. If some guy thinks he has a better way to manage chronic pain or do basic prevention or follow-up care for wounds or whatever — why not let him try, and profit or fail depending on his success?

We need to have a national discussion about where the borderline should be: What needs to be public? What is better kept private? Both Right and Left have a case to make. We could be having that discussion across the board — it’s in the background of almost every domestic issue we’re facing.

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An article in the journal Open Medicine compares the U.S. and Canadian health care systems:

Available studies suggest that health outcomes may be superior in patients cared for in Canada versus the United States, but differences are not consistent.

Or, as Matt Yglesias summarizes: “Canada’s is probably slightly better, almost certainly no worse, and definitely cheaper.”

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The NYT editorial page is also promoting that health-care article by Atul Gawande that I told you about two weeks ago. They claim President Obama is making his staff read it.

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Matt Yglesias defends the value of the public sector.

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… look for Big Boy Rules: America’s Mercenaries Fighting in Iraq by Steve Fainaru. This is a current-history book that reads like an action novel because Fainaru

• got assigned by the Washington Post to investigate a fascinating topic: the “security contractors” carrying guns in Iraq
• got “lucky” (in the journalistic sense) when a horrifying event happened right under his nose
• had the insight to see the parallels between his own psychology and that of the mercenaries he was covering
• had the sense to make himself a character in the story he wrote.

When he gets to Iraq, Fainaru finds himself hanging around with Crescent Security Group, maybe the most slipshod group of mercenaries in the business. They live in Kuwait and “commute to the war” as Fainaru puts it. They guard convoys going into Iraq.

The group’s medic wears an EMT hat, but explains that he isn’t really certified: “They made me the medic because I’ve read a lot of books. I just haven’t gotten around to taking the tests.” The rules-of-engagement are … well, there aren’t any really. Just don’t lose the convoy, and shoot them before they shoot you. Those are the Big Boy Rules, not the wimpy rules that the Army and the Marines have to live by.

If you end up shooting somebody you shouldn’t have, well, that’s a shame. Fortunately there’s nobody in a position to punish you for it, because security contractors are exempt from Iraqi law and not covered by the Uniform Code of Military Justice. You should file a report about it. Or not. It doesn’t really matter.

Fainaru rides with the talkative and endlessly charming Jon Cote’. Cote’ served a tour in Iraq with the 82nd Airborne, then went home and tried to be an accounting major at the University of Florida. It didn’t work out. After the blood and explosions of war, the sights and sounds of student life barely registered. He thought it would be idyllic — Florida, the girls, the parties. But nothing was a matter of life-and-death there, so why do it? He found himself taking bigger and bigger risks until he got arrested for doing motorcycle tricks on a main drag while drunk. Coming back to Iraq as a mercenary — it got him out of a bad situation and would soon get him out of debt, plus it put him back in a world of life-and-death. So it was a win all around.

Fainaru is 21 years older — exactly, they have the same birthday — but he sees a lot of himself in Cote’. War correspondents also get addicted to blood and explosions. Fainaru had spent in a lot of time in Iraq before coming home to cover safer stories — and it didn’t work out for him either. He didn’t have to return to Iraq, but he wrangled a way. Like mercenaries and unlike soldiers, war correspondents aren’t there for their country or to save anybody’s life or freedom. They can tell an idealistic story about the people’s right to know, but really it’s about fame and fortune. And blood. And explosions. War is not pleasant, but it’s very real — and after a while, nothing else is.

Then a subplot cuts in: Fainaru abruptly goes home for one last trip with his brother and his Dad, who is dying of lung cancer. The brother has his own drama going: He’s been covering the Barry Bonds steroid scandal. He published some confidential grand jury testimony, and he’s about to go to jail if he doesn’t reveal his sources, which he’s not going to do.

The trip may have saved Fainaru’s life. While he was gone, a Crescent convoy got hijacked and several of the mercs were taken, including Cote’ and the medic. We know the story in detail because two mercs survived in the most random way possible: The insurgents threw their captives into an SUV when they heard the Army coming, and the SUV wasn’t big enough for all of them.

The convoy hijacking is a story of screw-ups. Half of a typical Crescent crew is Iraqi, and they pick them up at the border. Except the Iraqis didn’t show up that day — maybe they were tipped off. Crescent should have cancelled right there, but the convoy was half across the border by the time they figured out what had happened. Turning around would have been a mess, and the run to Basra was usually tame, so they went for it. A few hours later they were hijacked by a group of Iraqis that probably included some disgruntled former employees, who were way underpaid compared to the Americans.

Nobody claims responsibility or asks for ransom. The official investigation starts late because Crescent forgot to register the convoy with the authorities. And nobody seems to be working all that hard to find the missing mercs — not Crescent management and not the military. Soldiers (who are also way underpaid compared to the mercs) strangely are not that wild about risking their lives for guys who live by no rules and then yell for help whenever they get themselves in trouble. Who’d have thought?

Fainaru starts hanging out with the families — mercenaries have families, it turns out: parents, brothers and sisters, children, and a lot of ex-wives. For reasons of their own, they love these guys, and they’d like to know what happened to them. It takes a long time, but eventually they find out. It’s not a happy ending.

I started reading Big Boy Rules out of good intentions. I thought it was a subject I should know something about. But then I got pulled in by the story and characters, and I ended up learning about mercenaries almost by accident. But the book actually does contain a lot of information. For example, Fainaru provides the first coherent explanation I’ve ever heard about how Blackwater got so far out of control: It was a token in the turf battle between State and Defense. Early on, Don Rumsfeld outmaneuvered Colin Powell, and the State Department got shut out of any significant role in Iraq. But Blackwater fell under State’s jurisdiction, because their main contract was to guard diplomats. So when the generals had complaints about Blackwater, State wasn’t inclined to listen. And that meant that Blackwater was virtually unsupervised.

Fainaru does a good job of painting a complex reality. He has little doubt that the contractor system is inherently corrupt, and that the contracting companies are war profiteers. Killing people is just not a business that private industry ought to be in. But he is ambivalent about the mercenaries themselves. They are exploiting the situation for their own profit, but are simultaneously being exploited for someone else’s profit. Few of them manage to save much money, and most don’t even have a clear idea of what they’d be saving for. Many of them die — how many? no one counts because no one really wants to know — and some are just broken and tossed aside.

Fainaru never says this explicitly, but I think he believes that when Jon Cote’ got caught doing drunken wheelies in Florida, he should have been offered help — not a gun and a big salary. Maybe he would have found some other way to get himself killed. But maybe not.

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If I’m going to be gone for two weeks, I have to suggest some beach reading. For a few months now, I’ve been chomping down Lee Child’s Jack Reacher novels like salted peanuts. They’re action mysteries with a heavy dose of weapons and tactics. But unlike Tom Clancy and Jack Ryan, Child is a real writer and Reacher is an interesting character.

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Two weeks apart, we’ve had the murder of late-term abortionist Dr. George Tiller and an attack on the Holocaust Museum in Washington. Most of the Right would like to claim that these are unpredictable acts by lone-wolf crazies. And that’s even true up to a point: There’s no sign of any broader conspiracy to carry out those specific attacks.

In a broader sense, though, the spectrum of right-wing craziness stands on a slippery slope. At the far end you have the Scott Roeders and James von Brunns — people who appear to have carried out acts of right-wing terrorism. One step closer to the mainstream are the web sites and blog commenters who think that the Roeders and van Brunns are heroes.

One more step brings you to the people who wish for violence without threatening to do it themselves, like whoever took out the ad saying: “May Obama follow in the footsteps of Lincoln, Garfield, McKinley and Kennedy!” Here we find Southern Baptist pastor Wiley Drake, who was Alan Keyes’ vice president on the American Independent Party ticket last fall.

Drake thinks Tiller’s murder was the answer to his prayers. He wants to revive the practice he calls “imprecatory prayer” — praying for God to harm your enemies. “It is in the Bible,” he says, “and we are proud to say as Southern Baptists that we believe the Book.” (Hmmm. Didn’t some minor character in the Bible also say: “Love your enemies. Bless them that curse you.”? But that’s a plot twist from the second half of the Book, so maybe Drake hasn’t read that far yet.)

When radio host Alan Colmes asked Drake who else was on the wrong side of his prayer list, Drake replied: “The usurper that is in the White House is one, B. Hussein Obama.”

Colmes: Are you praying for his death?

Drake: Yes.

Colmes: So you’re praying for the death of the president of the United States?

Drake: Yes.

Another step gets you to the people who don’t advocate or even root for violence explicitly, but provide justification for it. When Bill O’Reilly repeated denounced Tiller as “the baby killer”, he didn’t ask anyone to stop Tiller by violence. But how big a leap was that? The folks (like Alan Keyes) who keep pushing the “birther” conspiracy theory (that Obama actually isn’t president because he wasn’t born in this country) — what solution are they advocating? When you combine Obama-usurper rhetoric with charges that he’s secretly a Muslim who hates whites, is ruining our American values, is about to take away our guns, and is conspiring with ACORN to rig the census and fix elections — well, what is a heroic young man who believes all that supposed to do, exactly?

One step further in brings you to mainstream Republicans who use Biblical/apocalyptic code words to pander to the crazies in a deniable way. At the recent Republican fund-raising dinner, master-of-cermonies Jon Voight advocated “staying the course to bring an end to this false prophet, Obama.” If some warrior-of-God decides to bring an end to Obama with a sniper’s rifle, I’m sure Voight will express a completely guiltless sense of shock, if he sees a need to comment at all.

Take one more step and you arrive at Newt Gingrich, Sarah Palin, and countless other big-name mainstream Republicans who attended the dinner: They applauded Voight. Senate minority leader Mitch McConnell said he “really enjoyed” Voight’s remarks.

I’m with Paul Krugman on this:

Yes, the worst terrorist attack in our history was perpetrated by a foreign conspiracy. But the second worst, the Oklahoma City bombing, was perpetrated by an all-American lunatic. Politicians and media organizations wind up such people at their, and our, peril.

Like Frank Rich, I’m waiting for some Republican leader to stop pandering to the violent and take a stand for sanity. John McCain did so a couple of times late in the 2008 campaign. Fox News’ Shepard Smith is doing it now. But who else?

And that’s the real problem: Not the fringe nutjobs, but the mainstream voices who tolerate and exploit them. We don’t need to censor the Birthers any more than we needed to censor the people who thought that Bush conspired in 9-11. But mainstream Republicans who wink and nod at this craziness are playing with fire. How many people will have to die before they stop?

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Charles Krauthammer continues to advocate a polarized, Manichean world. To him, Obama’s efforts to reconstitute a center internationally represent “a disturbing ambivalence towards one’s own country.” Krauthammer also feeds the false-prophet rhetoric:

Not that Obama considers himself divine. (He sees himself as merely messianic, or, at worst, apostolic.) But he does position himself as hovering above mere mortals, mere country, to gaze benignly upon the darkling plain beneath him where ignorant armies clash by night, blind to the common humanity that only he can see.

Not that Charles would advocate striking down such a self-aggrandizing ruler. Of course not!

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Scott Bateman animates Newt’s bizarre warning about Druids-under-the-bed or Stonehenge-in-your-closet or something.

The source I’m following about the Iranian election is Juan Cole. Cole believes the election was stolen, and that (in spite of protests) the regime will get away with it — for now. “But the regime’s legitimacy will take a critical hit, and its ultimate demise may have been hastened, over the next decade or two.” Real change, he suspects, will have to wait for a generation of leaders who never knew the Shah.

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It’s official: Swine flu has been declared a pandemic by the World Health Organization.

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Not all conservatives buy the party line on Sotomayor. Daniel Larison, for one.

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The Plum Line blog has identified another one of those clever Republican name-changes (like changing the estate tax to the death tax). The photos of detainee abuse that the ACLU is trying to get released — they’re terrorist propaganda photos now.

The new name goes a long way towards denying what the photos are: pictures of things that actually happened. We’re not trying to prevent our enemies from telling lies about us; we’re trying to cover up what we did.

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In a move that will undoubtedly endear them to factory workers across the country, right-wing yakkers Rush Limbaugh and Hugh Hewitt are urging a boycott of GM now that the U.S. government is a majority shareholder.

Meanwhile, GM’s former Saturn brand has been bought by Penske, which plans to subcontract the whole car-making part of the business. Seriously. And the Chinese own Hummer now.

By far the biggest story this week was President Obama’s nomination of Sonia Sotomayor to the Supreme Court. I doubt you missed that story, and on all the specific points raised against her, Sotomayor’s defenders — see Rachel Maddow here and here, for example, or TPM — are doing fine without me, so I think the Sift’s time would be better spent trying to make some kind of larger sense out of the discussion.

The pro-Sotomayor and anti-Sotomayor arguments are based on two very different pictures of how the law works and what the courts should be trying to do. That’s why each side is more likely to react to the other’s points with a you-don’t-get-it headshake than with reasoned discussion. I’m far from neutral myself, but let me at least try to lay out the differences.

Conservatives are arguing from what we might call a modernist perspective. Modernists believe that a text like the Constitution has a clear and unique meaning. What they want in a judge, then, is a legal calculating machine who can work that meaning out and apply it objectively to the case at hand, uninfluenced by emotions or personal experiences. Their ideal Supreme Court is the nine “best qualified individuals” — the country’s nine best legal calculators.

Liberals are arguing from a post-modern perspective. Post-modernists believe that interpreting the Constitution is a more of an art than a science. There isn’t a unique meaning in the text, waiting for you to pull it out, because the text is often being applied to situations the authors could not have imagined, and is being asked to resolve questions the authors never considered. So rather than deducing the text’s unique meaning, an interpreter has to make reasonable choices among many possible meanings. Over time, the meaning of the text evolves through the choices that interpreters make. That’s why liberals will sometimes talk about a “living Constitution” — one whose meaning evolves through a dialog between the text and its interpreters.

Evolving phrases. That all sounds very abstract until you look at examples. Think about the Second Amendment‘s “right of the people to keep and bear arms”. What are arms? Probably in their own day, the Founders would not all have answered that question the same way. But even if they had, what do you do with weapons they couldn’t have imagined, like Stinger shoulder-fired surface-to-air missiles? Does the Second Amendment entitle me to keep and bear a Stinger near Logan Airport? There’s not one unique and obvious way to calculate an answer to that question directly from the text. But an answer (no) has evolved through a gradual process of interpretation.

Or when the authors of the 14th amendment said “nor shall any State deprive any person of life, liberty, or property, without due process of law” did they intend person to include fetuses still in the womb? Many pro-lifers think so; pro-choicers disagree. Can we really compute a right answer? Or do we have to accept that the authors weren’t thinking about that question and just make a choice?

Experience and the post-modern Court. Taking things one step further, people with different experiences will have different opinions about what interpretation is most reasonable. In 1896, for example, the Supreme Court thought separate-but-equal facilities for whites and coloreds was a reasonable way to fulfill the 14th Amendment‘s promise of “equal protection of the laws”. But in 1954, the Court decided it wasn’t. What changed? Not the 14th Amendment. But the nine white men of the 1954 Court lived in a different world than the nine white men of the 1896 Court. They brought different experiences to bear, and it led them to a different answer.

In the Henry Brown quote at the top of the page, you can hear echoes across the vast gulf that separated him from “the colored race”. The whole Plessy v. Ferguson case was a conversation among white men. Even the plaintiff, Homer Plessy, was only 1/8th black.

But by 1954, in thousands of ways great and small, the distance between the races had lessened. Willie Mays was having an MVP season; all over the country white boys were running out from under their caps and making basket catches like Willie did. The races had fought together in Korea, because President Truman had integrated the military in 1948. Most important of all, the 1954 justices had to look into the eyes of Thurgood Marshall, the NAACP attorney who argued Brown v. Board of Education. Maybe the justices couldn’t forsee that in 1967 Marshall would join the Court himself, but none of them could deny that Marshall was a human being with thoughts, feelings, and desires not so different from their own.

The 14th Amendment hadn’t changed, but the 1954 justices were beginning to be able to imagine black experience. It made a difference. In the post-modern view, it should have made a difference.

So the ideal post-modern Court is not the nine best individual legal calculators. It’s a team of justices who (in addition to having fine legal minds and good training) collectively have a wide range of experiences and individually have empathy — the ability to imagine and take seriously the experiences of others. In easy cases, where law and precedent are clear, this Court makes the same decisions as the modernist Court. But when new interpretations are necessary, its intuitions about what is reasonable should more closely reflect the nation, rather than the parochial interests of a single race, class, religion, or ethnic group.

Sotomayor. With that background, we can make more sense out of the Sotomayor debate. Conservatives are jumping on Obama’s statement that he was looking for a nominee with empathy, as well as two of Sotomayor’s statements. In a 2001 speech she said:

I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.

And in a 2005 panel discussion at Duke (in which judges answered law students’ questions about legal clerkships) [sound bite, larger context, full 51-minute session] she said:

Court of appeals is where policy is made.

From a conservative modernist point of view, this all wraps together into a horror story: Sotomayor isn’t even trying to calculate the outcome of the law impartially. Instead, she’s going to ignore the law and “make policy” to favor the groups she empathizes with (women and Hispanics) over white males. The Ricci case — which we’ll get to in a minute — is supposed to show her doing just that.

Charles Krauthammer made this argument on Fox News:

Her job on the court is to be an impartial adjudicator. And if she is not, if her empathy and her concern for certain ethnicities overrides the idea of justice and equal justice, I think that is a troubling concern.

In his WaPo column, Krauthammer called Sotomayor’s appointment an example of “the racial spoils system”. Her wise-Latina quote is “identity politics, which assigns free citizens to ethnic and racial groups possessing a hierarchy of wisdom and entitled to a hierarchy of claims upon society.” John Yoo (we’re supposed to listen to John Yoo? about law? really?) wrote: “Empathy has won out over excellence.”

But from a liberal post-modern point of view, the same Obama and Sotomayor quotes look not only harmless, but (if you read them in context) obvious. Courts “make policy” whenever they choose one possible intepretation over others. The experiences that the justices have or can imagine (through empathy) affect those choices, whether the justices want them to or not. (Another Anatole France quote: “He flattered himself on being a man without any prejudices; and this pretension itself is a very great prejudice.”) The current Court is overweighted with white males and light on everything else. Consequently, Sotomayor’s Latina experience can only enrich the Court, and her mere presence is bound to change the discussion — particularly in cases involving discrimination (which was the subject of the section of the speech where her “wise Latina” quote appeared).

Without that broad base of experience, it is far too easy for the Court to accept a status quo that favors people like the justices themselves — to make, in other words, more decisions like Plessy v. Ferguson.

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For an example of such status-quo thinking today, check out Friday’s Michael Gerson column. As a senator, he says, Barack Obama

opposed John Roberts for using his skills “on behalf of the strong in opposition to the weak.” He criticized Samuel Alito for siding with “the powerful against the powerless.” Obama made these distinguished judges sound monstrous because they stood for the impartial application of the law.

Gerson’s column doesn’t even address the possibility that “siding with the powerful against the powerless” might not be “impartial application of the law”. I’ll bet if he wouldn’t have oversights like that if he teamed with a Latina who grew up a housing project.

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OK, the Ricci case. Frank Ricci is a white New Haven firefighter who got the top score on a written test-for-promotion in spite of being dyslexic. He studied hard and spent $1000 on tutoring, but the test was thrown out when it would have resulted in no blacks and only one Hispanic being eligible for promotion. Along with some other high-scoring white firefighters, he sued the city.

The district court found against Ricci, and Sotomayor was part of a panel that upheld the district court ruling. The case has since been heard by the Supreme Court, which should rule this month.

The best account I’ve found is by Stanford law professor Richard Thompson Ford. According to him, current affirmative action law says this: If an employment test produces an adverse effect on a discriminated-against group, the burden of proof is on the employer to show that the test faithfully reflects the requirements of the job. Ford gives a hypothetical example in which a weight-lifting test screens women out of a job where strength is not that important. Even if the test is applied fairly and the discriminatory effect is unintentional, the employer needs to do something else.

When the firefighters’ test results came back with an adverse effect on non-whites, New Haven figured it couldn’t meet that burden of proof, so it started over. That’s what current law says it should do. You’ve got to feel for Ricci — just like you’d feel for a guy in Ford’s hypothetical who worked out until he could bench-press 300 pounds — but it makes sense.

So basically, this is an example of Sotomayor doing what conservatives claim they want: applying the law in spite of the fact that the plaintiff has a sympathetic story. But it’s a white guy with a sympathetic story, so that changes everything.

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The Sotomayor nomination is making Republicans choose between the white racists in their base and the Hispanic voters they’ll need in the future.

Sane Republicans have got to be pulling their hair out whenever former Colorado congressman and presidential candidate Tom Tancredo goes on TV. Thursday he compared the Hispanic civil-rights group La Raza to the KKK, and interpreted La Raza as “the Race”. (It actually means “the People”; you get “the Race” out of it by assuming that Spanish is some kind of mispronounced English. And radio talk-show host Gordon Liddy can’t even say the word Spanish. He talks about what La Raza means “in illegal alien“.) When asked Friday whether he agreed with Rush Limbaugh that the Obama administration “hates white people”, Tancredo replied: “I don’t know.“

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A lot of important issues don’t get the attention they deserve because they hardly ever make “news”. For example: the sad state of math and science education in the United States.

Day-to-day, nothing reportable happens. (Picture it: “This just in: Today 5,433 American fifth-graders gave up and decided that they will never understand fractions. Details at 11.”) Occasionally a blue-ribbon panel will issue a report or we’ll hear about SAT math scores going up or down, but even those events can’t compete with missing co-eds, celebrity drunk-driving arrests, or the latest offensive slip-of-the-tongue by some public figure.

Gadgets or pictures from outer space sometimes make news, but those things get covered as if they were magic. Rocket scientist has become slang for somebody who understands mysteries unapproachable by mere mortals, and it’s almost always used in the negative: “He’s no rocket scientist.” (In the movie Roxanne, it’s a little jarring when Steve Martin says, “Well, actually, she is a rocket scientist.“)

Recently in the Boston Globe, Boston College math professor Solomon Friedberg tried to call attention to this non-news-making subject. [Full disclosure: Sol and I were graduate students together at the University of Chicago. We once shared the bonding experience of driving from Chicago to San Diego in a $200 car.] Among other issues, he calls attention to the way that our educational culture replicates failure: If a kid is no good at math, what do you tell him or her to go into? Education.

It’s as if there were a disease that caused infected people to go into nursing. How many second- and third-grade teachers transmit the vibe that math is something hard and scary, and that you just need to get through it before you can move on to something fun like reading? I ran into a lot of their students years later when I was teaching calculus to freshmen. These were smart people — they got into the University of Chicago — but often my hardest task was to convince them that they could think about math, that they didn’t have to just memorize something and perform by rote. Where did they get that?

I don’t believe anybody wants a witch-hunt to purge all the math-phobes from the teaching profession. But the balance needs to change. One math-challenged teacher is probably not going to cripple a kid, especially if that teacher has compensating strengths elsewhere. I worry, though, about kids getting the idea that math anxiety is normal, that only a few geeks with a specialized math-module in their heads can understand this stuff. (What if kids got the same idea about reading?)

The solutions are — I guess I have to say it — not rocket science. Sol suggests targeting financial aid at math-capable students who go into education, giving more attention to math and science in teacher-training programs, continuing math-and-science opportunities for teachers already in the schools, and higher pay for math and science teachers (who are hard to retain because they could make more money elsewhere).

I’ve thought about the higher-pay idea before, and the main obstacle is the everybody-is-equal culture of teachers’ unions. Maybe we could work around that culture rather than fight it: Let math and science teachers apply for federal grants that have nothing to do with the pay they get from their school districts.

But how will we marshal the political will to make any of those changes happen? Sol finds himself rooting for another Sputnik; rather than this slow-but-steady falling behind, some sudden symbolic wound to our national pride.

Something, in other words, that would be news.

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I was disappointed when the California Supreme Court upheld Proposition 8, the constitutional amendment banning same-sex marriage in California. But having looked at the decision, I think the CSC got the law right.

The main issue in the case was whether Prop 8 was a simple amendment, which the voters could pass by majority vote, or a revision of the California Constitution, which would require a more arduous process. Prop 8 opponents argued that taking away one of your neighbors’ fundamental rights has to be a revision.

The CSC disagreed, but it did so by interpreting Prop 8 as narrowly as possible — as

eliminating equal access to the designation of marriage, and as not otherwise affecting the constitutional right of [same-sex] couples to establish an officially recognized family relationship.

The same-sex marriages already performed will stand, and civil unions in California will be marriages in all but name. Given the precedents defining the amendment/revision distinction, I don’t see how the CSC could have done more.

Now a suit has been filed in federal court to throw out Prop 8. Like John Dean, I’m skeptical. Same-sex marriage has momentum now among both voters and legislators. Why not see how far that goes before making a game-changing move?

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Republicans claim that Democrats hated Bush just as rabidly as they hate Obama now. But I don’t remember liberals taking out newspaper ads calling for a presidential assassination.

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Media Matters collects 100 Days of “Fair and Balanced” coverage of the Obama administration.

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The American death toll in Iraq, which had been drifting downward since the summer of 2007, might be starting back up again. We had 9 troop deaths in March, 19 in April, 22 in May. Three data-points doesn’t make a trend, but this bears watching.

The database I follow doesn’t break deaths in Afghanistan down by both country and month, so I’ll talk about coalition deaths rather than American deaths. Deaths have been up every year since 2003: 57 coalition troops died in 2003, 294 in 2008. So far 2009 is worse. At the end of May in 2008, there were 77 deaths; there are 115 so far in 2009. The big fighting season in Afghanistan, June-through-September, is just starting.

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The New Yorker’s Atul Gawande tries to figure out why a small, poor town in Texas has the nation’s most expensive health care. His conclusion: The biggest factor affecting health-care costs is whether a community’s doctors think of themselves as healers or businessmen.

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Yesterday an abortion doctor was killed while ushering at church in Wichita, and the suspect belonged to anti-abortion groups. This looks like the kind of incident I’ve been predicting, and that I think we’ll see more of. Violent rhetoric eventually reaches crazy people who will carry it out. In a quick scan of Monday-morning coverage, I don’t see any major media outlet calling this incident by its true name: terrorism.

In this week’s Sift:

• No Ticking Bomb. What if torture wasn’t about protecting the American people?
• What’s Cheney Up To? On the surface, the former VP’s 24/7 media blitz looks like a political disaster. Is it some subtly brilliant trap for Democrats? Or is it just another episode in Dick’s long-running series of screw-ups?
• The Next Time You’re in the Bookstore … look for Reza Aslan’s How to Win a Cosmic War. Aslan has great insight into fundamentalism in general, jihadism in particular, and what we should do about it.
• Short Notes. A non sequitur from Pat Robertson. Jon Stewart finds a moral line we won’t cross to win the War on Terror. Congrats to Marcy Wheeler. And more.

The week’s most important story wasn’t new and is still speculative, but the pieces are starting to come together: Torture wasn’t just used to find ticking time bombs and save American lives. The Bush administration may also have tortured people for political gain.

The story has been percolating since a McClatchy Newspapers article April 21 (based on the Senate Armed Services Committee report), but the latest round started with Robert Windrem’s article in Wednesday’s online Daily Beast. Based on what has been written by Iraq Survey Group head Charles Duelfer (the guy whose report finally closed the book on Saddam’s mythical WMDs) and interviews with two anonymous intelligence officials, Windrem claims that someone in Dick Cheney’s office wanted a captured Iraqi waterboarded, even though those in the field (i.e. Duelfer) believed he was already cooperating. Why? Because he wasn’t providing the information the administration wanted: a connection between Saddam and Al Qaeda.

Along with WMDs, the supposed Saddam-AQ link had been a big part of the administration’s case for invading Iraq. Post-invasion, evidence of this link had no ticking-bomb value, but would have bolstered the administration politically.

If true, this is huge. The Bush administration has always presented its “enhanced interrogation” policy as a sound (if distasteful) moral trade-off: weighing the lives of innocent Americans against the pain of suspected terrorists. But Windrem is telling a story of pure corruption, in which the administration broke laws and flouted morality for no purpose higher than re-election.

The difficult-moral-trade-off frame has always been a key part of the argument for not investigating torture: Americans are probably happier not knowing about the ugly things that were done to keep us safe. (As George Orwell may or may not have said: “People sleep peaceably in their beds at night only because rough men stand ready to do violence on their behalf.”) But if our safety was not the point, if this is just about corruption, then how can we not investigate?

TPM provides a timeline of the torture-for-politics story, and Rachel Maddow clearly connects the dots while interviewing Duelfer and Windrem (part 1 summary, part 2 Duelfer, part 3 Windrem).

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Republicans counter-attacked by trying to make Nancy Pelosi the center of the torture story. I’m startled by how nakedly thuggish this tactic is — as if one Mafia family were warning another that investigations would be bad for business. This montage of right-wing pundits and spokespeople lays out that threat very clearly.

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Before Jesse Ventura was a governor or a wrestler, he was a Navy SEAL and was waterboarded during his training at the SERE school. Here’s what Jesse told Larry King last Monday:

I’ll put it to you this way: you give me a waterboard, Dick Cheney and one hour, and I’ll have him confess to the Sharon Tate murders.

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A military mom responds to the claim that waterboarding can’t be torture because we do it to our own troops:

My son did NOT volunteer to be tortured. He was NOT told what would be done to him at SERE. He was told he would be taught to survive. Instead he was tortured, humiliated, degraded, shamed, and told to keep quiet about it. … These people, Cheney and his talking heads, everyone of them chicken hawks who avoided serving, should NOT be allowed to use torturing our troops as rationalization for their crimes.

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For weeks now, Dick Cheney has been on a media tour defending the Bush administration’s torture policy. At a time when the Republicans are in post-defeat chaos, this has made the unpopular and untelegenic Cheney the Republicans’ most visible spokesman, and has centered public attention on torture, which is not a good issue for the Republicans. It also has pushed attention backward onto the Bush administration and away from any new faces or new ideas the party might have.

President Obama had been eager to let the whole issue drop, but Cheney’s tour has waved a red flag at Democrats, and greatly increased the likelihood of either a truth commission or actual prosecutions, possibly even prosecution of Cheney himself. So what’s Cheney up to? Surely this is all part of some ingeniously complex scheme, a trap he is baiting that will snap shut as soon as Democrats commit themselves. Right?

Maybe not. The more I study the Bush administration, the less I believe in the myth of Dick Cheney as some kind of Doctor-Doom-style mastermind. On issue after issue, Cheney comes off as a profoundly ignorant man. Looking back, it’s clear that he knew

• nothing about Iraq. Assume for a second that he really believed we’d be “greeted as liberators“. How ignorant was that? And then there was his unshakable certainty that Saddam was an ally of bin Laden. As the administration’s WMD-hunter Charles Duelfer said: “That’s just born out of ignorance. I mean, to anyone who knew anything about the Iraqi regime … there was no logic for Saddam to have a connection at all with Al Qaeda.”
• nothing about Afghanistan. The Bush administration made the classic mistake of would-be conquerors of Afghanistan: to (in the words of counter-insurgency guru David Kilcullen) “confuse entry with victory”. At a time when the Afghan War was just getting started, Cheney thought we had won and could move on to Iraq.
• nothing about Islam. The tensions betwen Sunni and Shia, between secular leaders like Saddam and jihadists like bin Laden, between the traditionally recognized imams and the upstart theology of Al Qaeda, between local tribal traditions and by-the-book fundamentalism — it was all lost on Cheney. Instead of isolating Al Qaeda and finding allies all over the Muslim world, we launched a “crusade” that validated everything bin Laden was saying about us.
• nothing about terrorism or counter-insurgency. Cheney never got beyond a kill-the-bad-guys approach to fighting insurgents. He never understood that the War on Terror is a war of ideas, and the key battlefield is in the minds of 15-year-old Muslims all over the world. By giving up inspiring American ideals like decency and the rule of law, Cheney unilaterally disarmed the United States.
• nothing about the traditions of our military. In instituting the torture policy, one of the administration’s key problems was how to circumvent the military judge advocate generals. Ditto for instituting military tribunals, which came straight out of World War II as if the last half-century never happened. Cheney never understood the value that the JAGs — and our military in general — place on the Geneva Conventions and the Uniform Code of Military Justice.
• nothing about the law. I’m coming to the conclusion that Cheney actually believed the absurd legal arguments put forward by administration lawyers. Numerous behind-the-scenes accounts indicate that Cheney’s legal alter-ego David Addington was actually shocked by the defeats the administration suffered in the Supreme Court.
• nothing about interrogation. Cheney’s certainty that torture is the most effective interrogation technique does not come from our trained and experienced interrogators. Quite the opposite. Consider this advice from a memo by Major Sherwood Moran, the legendary interrogator of Japanese prisoners during World War II:

get the prisoner to a safe place, where even he knows there is no hope of escape, that it is all over. Then forget, as it were, the “enemy” stuff, and the “prisoner” stuff. I tell them to forget it, telling them I am talking as a human being to a human being, (ningen to shite). And they respond to this. … To emphasize that we are enemies, to emphasize that he is in the presence of his conqueror, etc., puts him psychologically in the position of being on the defensive, and that because he is talking to a most-patient enemy and conqueror he has no right and desire to tell anything.

The history of the Bush administration is a history of blunders — usually blunders that even a rudimentary knowledge of the field in question could have prevented. And if you trace those blunders back, you inevitably find Dick Cheney. He’s not Doctor Doom, he’s Wile E. Coyote.

So my advice to Democrats is: Take the bait. Walk into the trap. You’ll find that it’s as poorly constructed as everything else Dick Cheney had a hand in.

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National Journal finds that most Republican insiders think Cheney is hurting the party. Says one: “The best thing he can do is disappear for the next 10 years.”

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Speaking of unattractive Republican spokesmen … on National Review Online’s conservative blog The Corner, Jerry Taylor had the courage to suggest that (in view of Rush Limbaugh’s 19% approval rating) “the more people who think Rush Limbaugh leads the GOP, the fewer votes the GOP will get.” So of course the other NRO contributors shouted him down. Matt Yglesias’ assessment:

I just find the whole thing kind of mind-boggling. Rush’s defenders understand, I hope, that painting Rush as the all-powerful lord of conservatism before whom all else must submit was, in its origins, a political strategy devised by their enemies, right? So why are they jumping so quickly to prove that the argument is dead-on?

Memo to dittohead Republicans: 19% makes a great radio-show audience, but in any election it’s a landslide defeat. So Rush can win while you lose.

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Rush may drive his favorability even lower if he keeps arguing with 97-year-old ladies like Roberta McCain.

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… look for How to Win a Cosmic War: God, Globalization, and the End of the War on Terror by Reza Aslan. This is a different kind of war-on-terror book. It doesn’t reveal new details about what happened on the battlefield or at Guantanamo or inside the Bush administration. It’s about backing up, getting context and perspective, and making sense of things.

Aslan is an Iranian-American who came here when he was seven. He’s also that rarest of birds: a liberal Muslim who can get attention from the media. His previous book No god but God (which I reviewed for UU World) retold the history of Islam as a liberal Muslim might understand it, and said that the current Muslim ferment was symptomatic of a reformation — similar to the (sometimes violent) convulsions Christianity went through in the 1500s and 1600s.

Cosmic War starts with perhaps the most mysterious aspect of the War on Terror: the number of people on both sides who view it as a cosmic event.

A cosmic war is a religious war. It is a conflict in which God is believed to be directly engaged on one side over the other. Unlike a holy war — an earthly battle between rival religious groups — a cosmic war is like a ritual drama in which participants act out on earth a battle they believe is actually taking place in the heavens.

And so the 9-11 hijackers prepared themselves as if for a religious ritual. On the American side, Lieutenant General William Boykin (speaking in uniform at a church) said “the enemy is a guy named Satan,” Donald Rumsfeld’s daily war briefings for President Bush led off with Bible quotes, and Bush himself announced that the goal of the war was to “rid the world of evil“. Such a goal, Aslan notes,

ensures that a cosmic war remains an absolute, eternal, unending, and ultimately unwinnable conflict.

Why would anyone sign up for such a thing? To say that they’re just crazy, or that religion makes people crazy, just excuses our lack of understanding; it explains nothing.

I have a rule of thumb for judging explanations of bizarre behavior. Bad explanations make the explainer feel safe. They explain why he will never do anything like that, not why the other person did. (So: the religion-makes-you-crazy argument comes from Richard Dawkins, an atheist.) Good explanations are a little threatening. They start with motives we all share, and make us realize that everyone is a lot closer to the Abyss than we like to think.

Identity and Globalization. Aslan starts with identity. We all need to have a story about who we are and why our living-and-dying is worthwhile. Identity-stories usually involve boundaries, either physical or metaphorical. (People like me are here; people not like me are over there.) But globalization is breaking boundaries, and so threatening traditional identities.

Take national identity, for example. What does it mean to be English? It used to mean a lot of things: not just that you lived on a particular island, but that you had certain racial and ethnic characteristics; you spoke and thought in English; you probably had an ancestor someplace like Waterloo or Agincourt; you were a Christian who either belonged to or was alienated from the Church of England; you shared cultural heroes like Shakespeare and Newton, and had a strong opinion about Oliver Cromwell. But today, citizenship in the UK (or the EU) implies none of that. Being English is not something you can hang your hat on anymore.

Lots of identities don’t work as well as they used to. You might live half a dozen places in your life and have two or three professions. Over time, you might have more than one spouse, more than one set of children, and a new best friend every five or ten years.

So who are you? What story explains why your living-and-dying is worthwhile? Who will carry on after you’re gone? And even if somebody wanted to, what would they carry on?

A century ago, intellectuals took for granted that religion was a relic. Surely it would fade away as science explained more and more of life’s mysteries, and as increasingly cosmopolitan people realized how parochial their local mythologies were. But the intellectuals failed to grasp something important: The modern world was killing off all the traditional identity stories, and people still needed to identify with something. So religion would thrive in the modern world; and the religions that created the most satisfying identities would thrive best.

Fundamentalism rocks as an identity. Whether you’re a Pentecostal speaking in tongues, an illegal Zionist settler reclaiming Palestine for God’s chosen people, or a jihadist training for martyrdom in the tribal areas of Pakistan — you know who you are. You know who your people are and exactly what they will carry on after you die.

Islamists vs. Jihadists. A second important point of the book is the distinction between Islamists and jihadists. The jihadist is a cosmic warrior. The problems of his fellow Muslims, either locally or far away in Palestine or Iraq, form his identity as a member of an aggrieved community — but his actions are not part of any worldly program to resolve those grievances. Rather, a jihadist acts to demonstrate the power of God, and it is ultimately God who must remake the world and solve its problems.

The Islamist, on the other hand, is motivated by his religion to solve worldly problems through worldly action. Aslan cites the Muslim Brotherhood in Egypt and the ruling Justice and Development Party of Turkey as examples. He sees them evolving into the role that the various Christian Democrat parties play in Europe. Because their goals and methods are of this world, they can compromise and learn to work with non-Muslims.

The key question for the next generation of Muslims is whether they have sufficient hope to reform the world rather than blow it up so that God can start over. Can mere people organize to replace corrupt governments like Mubarak’s in Egypt? Or must they rely on God to topple the whole world order first, starting with the United States?

How to Win. The answer promised by the book’s title is simple: The only way to win a cosmic war is not to fight one. Otherwise, both victory and defeat are apocalyptic myths. And so we must simultaneously resist the efforts of our own fundamentalists to frame the current struggle in cosmic terms, and do whatever we can to break the jihadists’ cosmic-war frame.

Aslan gives a clear picture of how jihadists — like the 7/7 London bombers — are made: First, legitimate local grievances (like the alienation of young British Muslims) are interpreted in religious (not ethnic, racial, or class) terms. Then distant problems (like the oppression of the Palestinians, Chechans, and Kashmiris) are built into an identity as an aggrieved global people. Then the apparent Muslim leaders (clerics, politicians, or tribal sheiks) are portrayed as corrupt collaborators in the current order. And finally an apocalyptic global jihad is presented as the solution.

He recommends disrupting that process at every stage: doing a better job of integrating Muslims into Western society, seeking justice for oppressed peoples worldwide, and working with non-jihadist Muslim leaders rather than regarding all Muslims as potential jihadist sympathizers.

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Singapore has an interesting approach: They let Muslim clerics deprogram young jihadists. Teen-age jihadist foot-soldiers typically have only a slogan-based understanding of Islam. Like many fundamentalist Christians in this country, they can parrot scriptural proof-texts but know little about the larger context. At that age, regular one-on-one sessions with a trained Islamic scholar can make a huge difference.

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Media Matters collects what the Right is saying about same-sex marriage. Pat Robertson has the clincher:

And what about bestiality? And ultimately, what about child molestation and pedophilia? How can we criminalize these things and at the same time have constitutional amendments allowing same-sex marriage among homosexuals?

A real conundrum, that is. Unless you actually think about it or something.

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Jon Stewart connects some new dots: When the subject is torture, the Right claims we have to use “all our assets” to prevent another terrorist attack. But when the subject is don’t-ask-don’t-tell, they want to punt away assets like Arabic interpreters:

So it was OK to waterboard a guy over 80 times, but God forbid the guy who could understand what that prick was saying has a boyfriend.

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An impressive set of graphics demonstrates something I’ve suspected for a while: Canada is pretty well governed.

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My reaction to the Philadelphia Inquirer giving John Yoo a column: I don’t want to hear from Yoo again unless he’s under oath.

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Double standard: Two guys cheat on their cancer-stricken wives. The Democrat (John Edwards) is a pariah. The Republican (Newt Gingrich) is a leading conservative spokesman.

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The next time somebody tells you that newspapers do real journalism and bloggers just opinionate, have them read Marcy Wheeler, who just got a well-deserved Hillman Award.

In this week’s Sift:

• Swine Flu: If I’m not supposed to panic, what am I supposed to do? Well, don’t party like it’s 1918.
• Judge Hawkins Schools Obama on State Secrets. Presidents can’t just tell a court to dismiss a case.
• Will Republicans Go Extinct? Why moving to the center is no better an idea for Republicans now than it was for the Democrats in 2004.
• Short Notes. “That’s Aphasia!”. Church and torture. Six years after “Mission Accomplished”. And where government regulations really come from.

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In the same way that economists worry about another Great Depression, public health people worry about another Great Influenza of 1918. Half the population of the world caught it, and it killed more people than World War I — a lot more. Like war and unlike most flus, it was particularly lethal for the young, and it worked fast. You’d see a healthy young man walking down the street, and then hear a few days later that he was dead.

Like a Great Depression, a deadly flu pandemic is the kind of low-probability/high-impact event that humans don’t know how to think about. Evolution programed us to run from tigers and to rest when the tigers aren’t around. “Take precautions because something really bad might happen soon but probably won’t” — that thought didn’t come up very often on the plains of prehistoric Africa. And so today, we still just want to know whether it’s a tiger or not.

The swine flu is starting to look a little less tigerish than it did a few days ago, but the jury is still out. Here’s the recent good news:

• Mexican officials think the flu has peaked there.
• People over 60 might have immunity. If this flu turns out to be similar to a flu outbreak from years past, some of those ancient antibodies might do the job.
• The suspected-death numbers in Mexico went down as the tests came in, and the confirmed-death numbers are rising slowly. On Tuesday Mexican officials were saying 159 suspected deaths, but Wednesday the estimate came down to 84. The number of confirmed deaths was up to 22 yesterday. So maybe the Mexican strain of this virus isn’t as bad as we thought.
• Only one person has died so far in the U.S. — a Mexican boy who came to Houston for treatment.

Still, schools are closing here and there all over the country. And if things took a sudden turn for the worse, you could see businesses closing as well. A precaution worth taking: Stock up on essentials now, while there’s still no panic. Think about what you’d need if stores and restaurants were closed for a few weeks.

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A very good book on the 1918 flu is The Great Influenza by John M. Barry. A lesson I learned from it is that public health really is public. Plagues are controlled because governments step in with quarantines, curfews, drug rationing, and other draconian measures. A libertarian society would be completely helpless against a major epidemic.

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Here’s the official CDC advice. They’re tracking the cases state-by-state here.

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DemFromCT answers a lot of basic questions, including what a pandemic is and why closing schools is a good early strategy. DarkSyde explains how flu-evolution works.

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Dr. Charles Ericsson, head of the clinical infectious disease department at the University of Texas Medical School, describes the symptoms of swine flu: “Basically you will feel just plain rotten.” Thanks, Doc.

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Tuesday, the 9th Court of Appeals rejected the Obama administration’s interpretation of the state secrets privilege. The opinion, written by Judge Michael Daly Hawkins, is a very nice primer on what the state secrets privilege is and how it should work. It rejects the executive-supremacy claims of the Bush (and now Obama) administration.

First, what’s the case and where does it stand? Five non-American-citizens claim they were victims of rendition; the CIA flew them to countries like Egypt and Pakistan, where they were tortured. For technical reasons I don’t completely understand, they’re suing not the government, but the Boeing subsidiary that did the actual flying, Jeppesen Dataplan.*

The government has argued that the case should be thrown out because of the state secrets privilege. The lower court agreed, and the appeals court is now reversing that judgment, sending the case back to the lower court for trial.

But what is the state secret privilege and where does it come from? There are two major precedents:

• Totten v. United States (1875). A Civil War spy sued because the government didn’t pay him. The court threw the case out, ruling that Totten’s agreement with the government (if it existed at all) must have included an implicit provision that it remain secret. “The secrecy which such contracts impose precludes any action for their enforcement.”
• United States v. Reynolds (1953). Widows of RCA employees killed in a military air crash sued the government. They tried to force the government to produce the accident report, but the government convinced the court that revealing the report would harm national security.

In Totten, the case gets thrown out. But in Reynolds, the case goes forward without the secret evidence. (The widows and the government negotiated a settlement.) Judge Hawkins argues that Reynolds is the right model here, not Totten, and so the lower court was wrong to dismiss the case.

At issue is what precisely the state secrets privilege protects. Hawkins claims it protects evidence, not facts.

According to Reynolds, therefore, the question is not which facts are secret and may not be alleged and put to the jury’s consideration for a verdict; it is only which evidence is secret and may not be disclosed in the course of a public trial.

This makes state-secrets similar to other privileges. If, say, I tell my lawyer that I really did murder the guy, the lawyer-client privilege keeps our conversation from becoming evidence at my trial. But the fact that I murdered the guy is not privileged; if the prosecution can prove it some other way, they are free to proceed.

The government claims that “the very subject matter” of the Jeppesen case is a secret. Hawkins points out what a bad precedent this would set:

This sweeping characterization of the “very subject matter” bar has no logical limit—it would apply equally to suits by U.S. citizens, not just foreign nationals; and to secret conduct committed on U.S. soil, not just abroad. According to the government’s theory, the Judiciary should effectively cordon off all secret government actions from judicial scrutiny, immunizing the CIA and its partners from the demands and limits of the law.

Hawkins also rejects the idea that classified is the same as secret. It’s a checks-and-balances issue. The executive branch classifies documents on its own, without the participation of any other branch of government. If courts just accept that, then the executive branch is supreme; it has an unchecked power to decide what evidence courts can and can’t consider.

It follows that, while classification may be a strong indication of secrecy as a practical matter, courts must undertake an independent evaluation of any evidence sought to be excluded to determine whether its contents are secret within the meaning of the privilege.

Hawkins argues for balancing various interests, rather than letting the executive’s desire for secrecy automatically trump everybody else:

Within the Reynolds framework, the President’s interest in keeping state secrets secret is, of course, still protected: the court must balance “the circumstances of the case” and the plaintiff’s “showing of necessity” for the evidence against the “danger that compulsion of evidence will expose matters which, in the interest of national security, should not be divulged.” Where a plaintiff’s need for the evidence is “strong . . ., the claim of privilege should not be lightly accepted,” but “even the most compelling necessity cannot overcome the claim of privilege if the court is ultimately satisfied” that the privilege applies.

And a state-secret claim should not automatically dismiss a case. Instead, the privilege excludes specific evidence. The case may later be dismissed for lack of evidence, but that’s a separate judgment.

Thus, within the Reynolds framework, dismissal is justified if and only if specific privileged evidence is itself indispensable to establishing either the truth of the plaintiff’s allegations or a valid defense that would otherwise be available to the defendant.

The upshot is the beginning of a case is the wrong time to claim the state secrets privilege. It should be claimed when evidence is being introduced, on an item-by-item basis:

We simply cannot resolve whether the Reynolds evidentiary privilege applies without (1) an actual request for discovery of specific evidence, (2) an explanation from plaintiffs of their need for the evidence, and (3) a formal invocation of the privilege by the government with respect to that evidence, explaining why it must remain confidential.

Hawkins’ concluding instructions to the lower court:

On remand, the government must assert the privilege with respect to secret evidence (not classified information), and the district court must determine what evidence is privileged and whether any such evidence is indispensable either to plaintiffs’ prima facie case or to a valid defense otherwise available to Jeppesen. Only if privileged evidence is indispensable to either party should it dismiss the complaint.

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*Lest you think Jeppesen is just caught in the middle here, Judge Hawkins includes this footnote:

Plaintiffs cite, among other things, the sworn declaration of Sean Belcher, a former Jeppesen employee, who stated that the director of Jeppesen International Trip Planning Services, Bob Overby, had told him, “We do all the extraordinary rendition flights,”which he also referred to as “the torture flights ” or “spook flights.” Belcher stated that “there were some employees who were not comfortable with that aspect of Jeppesen’s business” because they knew “some of these flights end up” with the passengers being tortured. He stated that Overby had explained, “that’s just the way it is, we’re doing them” because “the rendition flights paid very well.”

In other words, they’re scumbags. Don’t feel sorry for them.

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The news that Senator Arlen Specter is defecting to the Democrats started a new round of stories about the dire state of the GOP.

• The remaining 40 Republican senators can’t sustain a filibuster, in the unlikely event that the 60 Democrats — when Al Franken finally gets seated — all unite.
• A new survey announced that the number of Americans calling themselves Republicans has dropped to 22%, and is still dropping.
• The Northeast’s surviving two Republican senators — Olympia Snowe and Susan Collins from Maine (NH’s Judd Gregg is retiring) — are being asked when they’re going to switch. Certainly they don’t fit any better than Specter did. And Snowe’s NYT op-ed didn’t sound very happy with the direction of the party. (“Ideological purity is not the ticket back to the promised land of governing majorities.”)

DailyKos is gleefully trying to name the goposaur (see left) created by malacandra.

The media narrative has the GOP swirling around the drain like this: Fewer voters consider themselves Republicans; the remaining Republican voters are the extreme conservatives; in order to appeal to those primary voters, Republican candidates are going to have to take extreme conservative positions on the issues; extreme conservative positions will alienate moderates; so even fewer voters will consider themselves Republicans.

The issue that epitomizes that pattern is immigration. Karl Rove’s once-feared plan for a “permanent Republican majority” included winning over the fast-growing Hispanic demographic by appealing to their Catholic heritage on issues like abortion and gay rights. But that’s can’t work when the current Republican base is brimming over with anti-Hispanic racism. McCain was the least offensive of the Republican primary candidates, and Obama still got 67% of Hispanic votes, helping him win once-reliable red states like Colorado, New Mexico, and Nevada. If Democrats hang on to 2/3rds of the Hispanics going forward, Republicans are sunk. (Leading immigrant-basher Tom Tancredo interprets this differently, of course, referring to the “so-called Hispanic vote“.)

So is it over for the Republican Party unless they stop being so conservative? I’ve got my doubts about that.

Not so long ago, pundits all agreed that the Democrats were too liberal to survive, and that they needed to move to the center by embracing candidates like Joe Lieberman rather than Howard Dean. That’s why every Democratic senator but Feingold voted for the Patriot Act in 2001, and why Kerry, Edwards, and Hillary Clinton voted to authorize the Iraq invasion in 2002. The 2002 and 2004 elections were disasters, mostly because moving to the center gave Democrats a mushy image and no issues to run on.

Moving to the center wouldn’t work any better for Republicans now. Changing your basic philosophy to try to match the American people’s philosophy is a losing strategy because (unlike the talking heads on TV) most Americans do not have a political philosophy. Instead, they have lives. They have hopes and fears and experiences. So in order to win elections you need to

1. stand for something
2. connect what you stand for to ordinary people’s hopes, fears, and experiences.

Republicans are failing at step 2, not step 1. Getting fuzzy about what they stand for — like Kerry in 2004 — will just create a new problem without fixing the original one.

If you look at the pillars of Reagan conservatism — small government, low taxes, strong defense, traditional values — they all still sound good in the abstract. But the trains of reasoning that once connected those core Republican principles to people’s hopes and fears have derailed. Who still believes that cutting rich people’s taxes will create her next job? Who feels personally safer because we have troops in Iraq? Who worries that gay marriage threatens his own family? That diehard 22%, and nobody else.

On the other hand, the connections between American hopes/fears and an active liberal government are strong right now. When banks start falling like dominoes, what’s our last line of defense against a second Great Depression? Whose helicopters are going to pull us out of the floodwaters? Who’s going to keep our food safe? Who will make sure we (and our kids) get medical care if we lose our jobs? Active, competent government, that’s who.

But that doesn’t mean that the American people have a liberal philosophy now, any more than they had a conservative philosophy a few years ago.

Think about how the pendulum swung to the Right between LBJ and Ronald Reagan. It wasn’t a philosophical change, it happened because the Right spoke to everyday fears (some real and some imaginary). People were afraid they’d be mugged, afraid their children would be forced into unsafe schools, afraid affirmative action would rig the system against them, afraid environmental regulations would shut down their local factory. They had sticker shock whenever they walked into a store, and conservatives convinced them that liberal social spending had caused that inflation.

The conservative sound bites — “tax-and-spend liberals”, “law and order”, “soft on defense”, “family values” and so on — all had long tails. They were part of a network of ideas, repeated in every campaign, that connected everyday life to conservative principles. That’s what it means to have a good political brand.

From 9/11 into Bush’s second term, Democrats struggled unsuccessfully to connect Bush’s horrible policies with everyday life. The war could only kill you if you volunteered for the military. Nobody you knew was being tortured. But the conservative brand started to unravel with Katrina: They would leave me to fend for myself. Then came $4 gas and the tainted-food scares and your 401(k) tanking and not knowing whether your job was safe or not. Nobody’s looking out for me.

That’s been the switch. Rather than being afraid of government, Americans are now afraid of government neglect. All the rhetoric about freedom and individual responsibility falls flat if you’re thinking about a Katrina-like situation: You’re free to take responsbility for your own drowning.

The GOP’s problem right now is that they are stuck in abstraction, not that they’re stuck in conservative abstraction. They’ve lost their line into everyday life. Gay marriage won’t affect you if you’re not gay. Nobody’s going to force you to get an abortion. Republicans are in the position Democrats were in a few years ago: trying to make people care about things that have no direct impact on them. And they’re trying to compensate by raising their rhetoric. If calling Obama liberal didn’t work, let’s call him socialist or Marxist or even fascist.

That won’t get it done. Reinvigorating the GOP has to start with everyday life, not with philosophy — and certainly not with name-calling. What are ordinary people’s hopes and fears? How can small government, low taxes, strong defense, and traditional values address those hopes and fears?

Democrats shouldn’t get cocky; there’s no reason those questions can’t have convincing answers again.

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So there I am, sitting in an Italian restaurant and futilely trying to remember somebody’s name while the background music croons away. What else could I do? I wrote the song parody “That’s Aphasia! ” to the tune of Dean Martin’s classic “That’s Amore!”

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A number of bloggers caught this gaffe by Byron York of the Washington Examiner:

[President Obama’s] sky-high ratings among African-Americans make some of his positions appear a bit more popular overall than they actually are.

Because those silly opinion polls count blacks as if they were people or something.

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Maybe Hell sets a bad example. A Pew survey says that frequent church-goers are more likely to support torture.

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Charles Krauthammer has thoughtfully written a column in the WaPo explaining when torture is justified. I’m hoping it’s the first of a trilogy. The sequel could examine when slavery is justified, and in the conclusion Charles might tell us when genocide is justified.

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Greg Mitchell marks the sixth anniversary of “Mission Accomplished” by looking back at the glowing coverage of President Bush’s most famous photo op. Meanwhile, 19 American soldiers died in Iraq in April, the most in any month since September. The death toll is up to 4284, compared to 139 when Bush declared victory.

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Devilstower has a very good article on the disasters that led to government regulations:

No one implemented health, safety, and environmental legislation because they thought it would be fun. We didn’t do it because we hate corporations, because we wanted to make jobs for government bureaucrats, or out of some desire to snatch power away from states. We did it because that kind of freedom, marketplace freedom, was literally killing us.

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No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture. — Article 2.2 of the Convention Against Torture, signed for the United States by President Ronald Reagan on April 18, 1988 (21 years ago Saturday)

In this week’s Sift:

• The New Torture Memos. If you’re surprised, you were probably in denial.
• Now That You’ve Brought Up Thomas Paine … I have to point out that he was a flaming liberal. Glenn Beck should read Paine’s Agrarian Justice before he brings actors onto his show to play Paine.
• Short Notes. Gloria, Newt, and the pirates. Satirists accept the challenge of “The Gathering Storm”. George Will denounces blue jeans. And conservatives finally begin to understand why a surveillance state is a bad idea.

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In the memo I read, Jay Bybee OK’d the CIA’s interrogation plan for suspected terrorist Abu Zubaydah, in which he would be deprived of sleep, slapped, slammed against a wall, put into a small box with an insect he was morbidly afraid of, and waterboarded. Bybee objected to nothing the CIA proposed, and drew no line-in-the-sand that they dare not cross in the future, saying only that if the facts he had been given were to change, “this advice would not necessarily apply.”

In the previously released John Yoo memos, you could imagine that the Justice Department’s Office of Legal Counsel was engaged in an academic exercise about what the law conceivably might allow — doing a bad job of it and grossly exagerating the power of the president, but not directly hurting anybody. That fig leaf is gone now. Bybee was one of the last links in the decision chain about whether to torture a specific man in specific ways. He had every reason to believe that if he said yes, the torture would happen. He said yes, and it happened.

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In all the accounts I’ve read of the Bush administration and torture (many of which are collected in Jane Mayer’s The Dark Side, which I reviewed last month) I can find no trace of a conversation at the Bush/Cheney/Rumsfeld level about whether torture works. They just assumed it did. Lower-level people, many of them with training and experience in interrogation, tried to raise the issue that torture was not the best approach to getting information, but they were consistently told that the question had been decided already; you were either on board or you weren’t.

Bush CIA Director Michael Hayden went on Fox News Sunday to claim that revealing these memos has made America less safe, because torture “really did work.” Of course, we have to take his word, because all the evidence is classified. And naturally, if it were true that he had sold America’s soul and gotten nothing for it, he would tell us. Right?

No one ever points out how torture costs American lives. When we’ve got terrorists cornered, whether in Tora Bora or in some isolated cabin in the Rockies, our best weapon is their knowledge that if they just surrender, they’ll be treated well. Medical care, a warm safe place to sleep, three meals a day — just surrender. Frag your commander if you have to, but surrender. You’ll be fine. But if surrender means torture and degradation, terrorists might well decide to go out shooting and take as many Americans with them as they can.

Matt Yglesias comments:

In historical terms, you don’t look back on the Spanish Inquisition or on Stalin’s Russia and say man, those guys had some crack investigators! Rather, you see that historically the function of torture has been to extract false confessions and to inspire a general climate of fear.

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Perhaps the worst thing we did to the detainees is rarely discussed, and seemed to need little justification: extended solitary confinement. American citizen Jose Padilla spent three and a half years in a military brig. For much of that time he saw no one but his interrogators — not even guards — and was held in a wing with no other prisoners. At least some of that time he lived in sensory deprivation.

Former interrogator Col. Steven Kleinman (retired): “I’m not a psychologist, but if he is not profoundly psychologically disturbed from that experience then he is a stronger man than me.”

He’s not stronger. By all acounts from people who knew him, we broke Padilla. Not in the interrogation sense of breaking his resistance, but in the human sense that he can’t function in society any more.

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NYT: The interrogation program Bybee approved occurred “despite the belief of interrogators that [Abu Zubaydah] had already told them all he knew” because higher-ups in the CIA had “a highly inflated assessment of his importance.” Nonetheless, Bybee’s memo summarizes information he had been given like this:

The interrogation tearn is certain that he has additional information that he refuses to divulge. Specifically, he is withholding information regarding terrorist networks in the United States or in Saudi Arabia and information regarding plans to conduct attacks within the United States or against our interests overseas.

This is one of many reasons why you don’t want a bureaucracy handling torture. Bureaucracy is a constant game of telephone: Each player distorts things a little bit, and the distortions accumulate as information goes up and down the chain.

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TPM collects the commentary about these memos on the Sunday talk shows.

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Glenn Greenwald was struck by a Steven Bradbury memo that acknowledges:

Certain of the techniques the United States has condemned [when other countries do them] appear to bear some resemblance to some of the CIA interrogation techniques.

But in a footnote Bradbury says:

Diplomatic relations with regard to foreign countries are not reliable evidence of United States executive practice

In other words, we’re not bound by any of that high-minded stuff we preach to other countries.

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The NYT wants Bybee, now a federal appeals judge for life, impeached:

These memos make it clear that Mr. Bybee is unfit for a job that requires legal judgment and a respect for the Constitution.

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A day later than Marcy Wheeler, the NYT noticed that two detainees were waterboarded a total of at least 266 times. Matt Yglesias comments that this should put to rest “the notion that some kind of ticking time bomb story lies at the heart of the Bush administration’s torture policy.” There weren’t 266 ticking time bombs, were there?

In a later post, Matt explained waterboarding:

Basically the idea is that if you would like to torture someone by holding them under water until they nearly drown, but your lawyer tells you that you’re not allowed to run the risk doing permanent physical harm to the torturee, “waterboarding” is a nifty method of producing all the relevant torture but without the chance of accidentally drowning the guy you’re torturing. The only reason anyone could ever reach the conclusion that this isn’t torture is that they (a) want to torture people, and (b) don’t want to admit that they want to torture people.

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The Obama administration continues to oppose any accountability for torture, either at the interrogator level or at the policy level or at the top. Obama’s official statement says:

This is a time for reflection, not retribution. I respect the strong views and emotions that these issues evoke. We have been through a dark and painful chapter in our history. But at a time of great challenges and disturbing disunity, nothing will be gained by spending our time and energy laying blame for the past. Our national greatness is embedded in America’s ability to right its course in concert with our core values, and to move forward with confidence. That is why we must resist the forces that divide us, and instead come together on behalf of our common future.

That’s the White House line: insisting on the rule of law is just “emotion”. Rahm Emanuel elaborated that this is not a time for “anger and retribution.” The official statement continues:

The United States is a nation of laws. My Administration will always act in accordance with those laws, and with an unshakeable commitment to our ideals.

But this plainly is not true, as UN Special Rapporteur Manfred Nowak has pointed out:

The United States, like all other states that are part of the U.N. convention against torture, is committed to conducting criminal investigations of torture and to bringing all persons against whom there is sound evidence to court

In other words, we have an obligation under the law to prosecute torturers. By ignoring this obligation President Obama, like President Bush, is picking and choosing which laws he will live by.

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In another region of the Bush legacy: Yesterday Congressional Quarterly reported a sinister series of deals centering on Democratic Congresswoman Jane Harman that allegedly happened in late 2005. (Harman denies the story and it’s based entirely on anonymous sources, but CQ is a quality publication.) The first alleged deal is that Harman would use her influence with the Bush Justice Department to support two pro-Israel lobbyists accused of espionage; in exchange the pro-Israel group AIPAC would use its influence with Nancy Pelosi to get Harman appointed chair of the House Intelligence Committee if the Democrats took control of Congress in 2006.

That conversation allegedly was picked up by an NSA wiretap (directed at the Israelis, not at Harman), and the Justice Department began investigating Harman. Then CQ claims a second deal happened: Attorney General Alberto Gonzales stopped the investigation because “Gonzales wanted Harman to be able to help defend the administration’s warrantless wiretapping program, which was about break in The New York Times and engulf the White House.”

Glenn Greenwald comments:

Jane Harman, in the wake of the NSA scandal, became probably the most crucial defender of the Bush warrantless eavesdropping program, using her status as “the ranking Democratic on the House intelligence committee” to repeatedly praise the NSA program as “essential to U.S. national security” and “both necessary and legal.”

Josh Marshall at TPM raises the question that popped into a lot of people’s minds, including mine: “Any particular reason people in the intel community would want to start talking to the press right now?” Maybe the NSA is reminding Obama that a lot of high-ranking Democrats are implicated in the Bush administration’s crimes.

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Wednesday, the same NYT reporters who exposed the NSA’s illegal warrantless wiretapping program in the first place reported that the NSA’s spying on Americans’ email and phone calls “went beyond the broad legal limits established by Congress last year.” Glenn Greenwald agrees with Digby: “It was so inevitable that I can’t even find the energy to get worked up about it.” Digby concludes:

I’m going to spend the rest of the night re-reading all the moving speeches that were made on the Senate floor just a year ago, talking about how we didn’t need to look in the rear view mirror and the safeguards in the bill would solve all problems.

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As Glenn Beck invokes the spirit of Thomas Paine, it becomes apparent that Beck has never read Paine’s essay Agrarian Justice. Paine’s ideas are both radical and simple, and our current political debates would advance considerably if everyone understood them.

Writing in the French Republic in 1795 (having recently escaped death during the Reign of Terror) Paine begins his essay by comparing civilized society to what he has seen of a hunter-gatherer culture:

The life of an [American] Indian is a continual holiday, compared with the poor of Europe; and, on the other hand it appears to be abject when compared to the rich. Civilization, therefore, or that which is so-called, has operated two ways: to make one part of society more affluent, and the other more wretched, than would have been the lot of either in a natural state.

In his characteristic cut-to-the-chase style, Paine puts his finger on civilization’s key problem: the system of private property, by which the rich claim the communal inheritance of humanity.

It is wrong to say God made rich and poor; He made only male and female, and He gave them the earth for their inheritance.

Paine doesn’t see how civilized society could function (and support its larger population) without private property. But he has a plan to rectify the inherent injustice of the property system. First, if we can no longer honor each person’s right to a share of the Earth, at least give everybody enough capital to get started in life. He proposes:

To create a national fund, out of which there shall be paid to every person, when arrived at the age of twenty-one years, the sum of fifteen pounds sterling, as a compensation in part, for the loss of his or her natural inheritance, by the introduction of the system of landed property:

Second, start an old-age pension.

And also, the sum of ten pounds per annum, during life, to every person now living, of the age of fifty years, and to all others as they shall arrive at that age.

Funded how? By an inheritance tax — a death tax, if you will. Paine calculates that 10% should do the trick. No one can rightfully object to such a tax, Paine reasons, because his inheritance is already the result of usurping the natural inheritance of everybody else.

Various methods may be proposed for this purpose, but that which appears to be the best … is at the moment that property is passing by the death of one person to the possession of another. In this case, the bequeather gives nothing: the receiver pays nothing. The only matter to him is that the monopoly of natural inheritance, to which there never was a right, begins to cease in his person. A generous man would not wish it to continue, and a just man will rejoice to see it abolished.

But what of the argument often made by conservatives, that good works like this should be done by private charity, not by the government? that they should be funded by voluntary individual contributions rather than by taxes? Paine answers that the cause of poverty is inherently social, not individual. It requires a social solution.

It is not charity but a right, not bounty but justice, that I am pleading for. … There are, in every country, some magnificent charities established by individuals. It is, however, but little that any individual can do, when the whole extent of the misery to be relieved is considered. He may satisfy his conscience, but not his heart. He may give all that he has, and that all will relieve but little. It is only by organizing civilization upon such principles as to act like a system of pulleys, that the whole weight of misery can be removed.

So I thank Glenn Beck for restoring Thomas Paine to national attention. Maybe Beck could devote an hour or two of his show to explaining the Agrarian Justice program and the liberal ideas behind it.

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The Beck message from Thomas Paine repeated the invocation of the mysterious and sinister they, as in Beck’s We Surround Them diatribe. According to the faux Paine (beginning at the 2:20 mark), they did a series of dastardly things we thought they wouldn’t dare do: bomb Pearl Harbor, destroy the World Trade Center, attack the Pentagon, and pass the Stimulus Bill. Yep: Democrats in Congress, the Japanese Empire, and the 9-11 conspirators all go together somehow. What might they do next if we don’t rise up and stop them?

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Meanwhile, Texas Governor Rick Perry talked to a tea-party group about secession. (Didn’t they try that once before?) Blogger Occam’s Hatchet sympathizes with the encircled liberal capital of Austin, and wants to hear an updated version of JFK’s “Ich Bin Ein Berliner” speech:

There are some who say that Republicanism is the wave of the future. Let them come to Austin. And there are some who say in Congress and elsewhere we can work with the Republicans. Let them come to Austin. And there are even a few who say that it is true that Republicanism is an evil system, but it permits us to make economic progress. Let them come to Austin!

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CNN’s Gloria Borger on Newt Gingrich’s running twitter-commentary about Obama’s handling of the pirate incident:

If Republicans can’t allow that the president did his job well in this unambiguous case, why should we believe their complaints about anything else? If they can’t pat him on the back for this one, why should we even listen to their arguments about the budget, about health care, about energy?

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The anti-same-sex-marriage ad “The Gathering Storm” (that I linked to last week) might as well have yelled “Bring it on!” to satirists everywhere. Parodies abound. This one is pretty good. And this one was created without anyone needing to act or speak or even draw. (“If you can type,” they say, “you can make movies.”) And Stephen Colbert had to get into the act too.

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Now somebody needs to parody George Will, who has gone into full-blown cranky-geezer mode. Having already warned us about the global-warming conspiracy, Thursday he took on a true American scourge: blue jeans. Seriously. He wrote a column in the Washington Post denouncing blue jeans. Syndicated.

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A new report from Homeland Security warns local police about right-wing extremist activity and the possibility of violence. Glenn Greenwald collects comments from outraged right-wingers, but also asks where they’ve been these last few years. How many times, he wonders, were liberals told that if we’d done nothing wrong we had nothing to hide? “When you cheer on a Surveillance State, you have no grounds to complain when it turns its eyes on you.”