Scalia's world

This is what Justice Scalia said on June 12, 2008 in his opinion dissenting from the Supreme Court's decision in Boumediene v. Bush that the prisoners in Guantanamo can ask a court to review whether their detention is lawful:

"[today's opinion] will almost certainly cause more Americans to be killed."

Here's what Scalia said two weeks later in his June 26, 2008 opinion in District of Columbia v. Heller striking down a government regulation making it a crime to carry an unregistered firearm:

"the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding."

That would include the 12-gauge shotguns and Tec 9 semi-automatic machine guns used in Columbine, and the Glock 19 used at Virginia Tech. I'm sure the irony of writing these two opinions within two weeks of each other is lost on Justice Scalia.

Keeping up appearances

Over the last few months, the U.S. Supreme Court has issued two important opinions in which the court determined that the "dignity of the procedure" should trump the rights and interests of a criminal defendant.

In Baze v. Rees (pdf), the U.S. Supreme Court affirmed a decision by the Kentucky Supreme Court that Kentucky's protocol for carrying out the death penalty did not violate the constitutional prohibition on cruel and unusual punishment in part because the protocol protected the "dignity of the procedure." Kentucky is a State where the death penalty is carried out by the injection of three separate drugs: the first drug is meant to induce a deep coma, the second drug paralyzes the muscles and stops the person's breathing, and the third drug stops the heart. It was asserted that the second drug should not be used because the person who is being killed may still be conscious but unable to show that he or she is in excruciating pain because his or her muscles are being paralyzed. The U.S. Supreme Court rejected this challenge to the use of the muscle-paralyzer in part because:

"[t]he Commonwealth has an interest in preserving the dignity of the procedure, especially where convulsions or seizures could be misperceived as signs of consciousness or distress."

Keeping up appearances for the witnesses and maintaining decorum during the execution is more important than avoiding the suffering of the person who is actually being killed.

Earlier this week, the Supreme Court in Indiana v. Edwards (pdf), the U.S. Supreme Court vacated and remanded a decision of the Indiana Supreme Court which had held that a defendant who is mentally competent to stand trial has a constitutional right to self-representation and cannot be forced to accept representation by counsel. In part to protect the dignity of the proceedings, the U.S. Supreme Court disagreed and held instead that the constitutional right to self-representation does not forbid State laws requiring that someone who is mentally competent to stand trial but not mentally competent to conduct that trial must accept representation by counsel. The U.S. Supreme Court explained that in those circumstances a criminal defendant's constitutional right to self-representation should be overridden because:

"given that defendant's uncertain mental state, the spectacle that could well result from his self-representation at trial is at least as likely to humiliating as enobling. Moreover, insofar a defendant's lack of capacity threatens an improper conviction or sentence, self-representation in that exceptional context undercuts the most basic of the Constitution's criminal law objectives, providing a fair trial."

Again, keeping up the appearance that all is peachy while prosecuting someone who is not competent to defend himself is more important than the constitutional rights of the person who is being prosecuted. However, as Grits wondered, "[i]s it any less a spectacle if we just lock up mentally ill people in prison en masse without the trial judge having to listen to them personally?"

Looking at both instances, is the focus on the marginal governmental interest in keeping up appearances and maintaining decorum at the expense of fundamental rights and due process more acceptable because the overruled constitutional rights are asserted by "bad" people?

World Values

Ronald Inglehart of the University of Michigan is the director of the "World Values Survey." This survey was started in 1981 by Dutch political scientists at the University of Tilburg and measures sociocultural, moral, religious and political values around the world.

One famous chart resulting from this survey is the Inglehart-Welzel cultural map of the world. Take a look on the World Values Survey website to see this map; it's fascinating. In short, the y-axis of the Inglehart-Welzel cultural map of the world shows where the populations of specific countries are located on a spectrum from traditional/religious values to secular/enlightenment values. As explained on the website:

The Traditional/Secular-rational values dimension reflects the contrast between societies in which religion is very important and those in which it is not. A wide range of other orientations are closely linked with this dimension. Societies near the traditional pole emphasize the importance of parent-child ties and deference to authority, along with absolute standards and traditional family values, and reject divorce, abortion, euthanasia, and suicide. These societies have high levels of national pride, and a nationalistic outlook. Societies with secular-rational values have the opposite preferences on all of these topics.

The x-axis of the map shows where those same countries are located on a spectrum plotting the development from industrial, "survival" societies to post-industrial societies emphasizing self-expression values in response to wealth accumulation. In this regard, the website states as follows:

The second major dimension of cross-cultural variation is linked with the transition from industrial society to post-industrial societies-which brings a polarization between Survival and Self-expression values. The unprecedented wealth that has accumulated in advanced societies during the past generation means that an increasing share of the population has grown up taking survival for granted. Thus, priorities have shifted from an overwhelming emphasis on economic and physical security toward an increasing emphasis on subjective well-being, self-expression and quality of life. [...]

Self-expression values give high priority to environmental protection, tolerance of diversity and rising demands for participation in decision making in economic and political life. These values also reflect mass polarization over tolerance of outgroups, including foreigners, gays and lesbians and gender equality. The shift from survival values to self-expression values also includes a shift in child-rearing values, from emphasis on hard work toward emphasis on imagination and tolerance as important values to teach a child.

Looking at this map, there are some intriguing tidbits of information. For example, it shows that the values of people in many Western European countries (including Germany, Sweden, Denmark and the Netherlands) are closer to the values of the Japanese than the values of the Irish (making professor Masayuki Tadokoro's recent plea to Western European leaders to stop thinking of the "East" as some amorphous alien world all the more understandable). Similarly, these surveys suggest that the values of the Portuguese are much closer to the values of the people in Chile and Argentina than for example to the values of the Spanish next door.

There are some interesting observations to be made about the U.S. as well. For example, when looking at the y-axis showing the spectrum from traditional/religious values to secular/enlightenment values, the U.S. as a whole is comparable to Romania, Poland, India or Vietnam. Because of the size of the U.S. and the differences among the various regions, it would therefore seem reasonable to conclude that parts of the U.S. are more traditional, religious and nationalistic than any region of any county in Western Europe other than Ireland, and are a world away from Japan and Sweden. At the same time, however, the U.S. is at the same level as those same countries when looking at the x-axis (development from survival to self-expression). Perhaps this begins to help explain some of the recurrent misunderstandings among "Europeans" and "Americans."

Where Is Obama On Telecom Immunity?

Today, the U.S. House of Representatives passed draft legislation that, if it also passes the Senate and is signed by the President, will grant retroactive immunity to telecommunication companies that knowingly broke the law by spying on millions of Americans without proper authorization -- House Passes Bill on Wiretap Powers. Personally, I strongly (!) disagree with granting retroactive immunity for companies that knowingly broke the law, especially when that retroactive immunity was bought and paid for with substantial campaign donations to a few key lawmakers.

Full disclosure: I am a big fan of the Obama candidacy. But how can he not have a clear position on one of the major political fights that has been brewing for months? By winning the primaries, Obama has become the de facto leader of the Democratic party -- by remaining silent, Obama is, in effect, supporting retroactive immunity for the telecommunication companies. Indeed, if Obama was serious about opposing it, he could have had a little chat with Nancy Pelosi, and he could still discuss this with Harry Reid, thereby preventing the cynical sale of retroactive get-out-of-jail-free cards.

I am not saying that Obama is under any legal or ethical obligation to do that. But at a minimum, a presidential candidate that asks us to believe in "change," and who said that "I am in this race to tell the corporate lobbyists that their days of setting the agenda in Washington are over", cannot remain silent and should have the guts to take a firm position on this. Not next month; not next week; now.

French army to return under U.S. command

You may have missed this, but Nicolas Sarkozy has just announced that the French military will reintegrate into the NATO military command structure. France left NATO's military command structure under General de Gaulle in 1966 in part over misgivings over the Vietnam war and to maintain her sovereignty.

NATO has both a civilian and a military command. The civilian command is always led by a European, the military command by an American. To reintegrate the French military into the NATO military command is thus to reverse De Gaulle's earlier decision to keep the French military strictly under French control. This decision not only affects France, it also affects the rest of Europe and the U.S. because France has the largest standing army in Europe, and the U.K. is the only European country with a comparable military projection.

All of this comes against the larger backdrop of the future of European defense. Since the early 90s, there has been a discussion about whether Europe should build up its own defense capability independent from NATO or whether to continue to build a closer alliance with NATO (thereby embracing the cold war pact whereby Europe swore allegiance to the U.S. in return for protection under the U.S. military umbrella).

I am on the fence about this. On the one hand, the annual military budget for the U.K., France and Germany combined is not even 20% of the annual military budget of the U.S., and pooling resources among allies and friends makes sense. On the other hand, over the past 8 years, the Bush administration has repeatedly treated those alliances and friendships with contempt and placed them in doubt at the slightest suggestion of disagreement (over very disagreeable and, as we increasingly learn, very illegal practices).

Obama has solid lead over McCain

Things are looking pretty good for Obama: even without Florida, he's leading 309 to 229 in electoral votes -- see here. Note that this finding is not contradicted by the polls that are reported in the main stream media which suggest that Obama's lead in the popular vote is still within the margin of error. (The analysis suggesting that Obama currently leads by 80 electoral votes is based on a prediction that Obama will win 51.6% of the popular vote with McCain getting 47.3%.)

It's of course the electoral votes that count, and those votes are allocated based on winner-takes-all in 48 of the 50 states. (Only Maine and Nebraska do not follow this rule.) To suggest that this is currently a close race is therefore to make the same mistake as advising a candidate in the democratic presidential primaries, where electoral votes are allocated by proportional representation, to only focus on the big states. (Mark Penn, anyone?) Hillary Clinton's "chief strategist" made this elementary mistake, thereby substantially contributing to her strategic loss.

Yoo

John Yoo is a former Justice Department lawyer who had his hand in legal memoranda for the Department of Defense and the CIA to give legal cover for their use of "enhanced interrogation techniques." These memos have been widely condemned as legally unsound, shoddy pieces of work that were simply after-the-fact justifications for the widespread use of torture after Cheney infamously proclaimed "we have to work... the dark side, if you will."

Today, Yoo has an oped in the Wall Street Journal attacking last week's decision by the U.S. Supreme Court holding that the military commissions used to try Guantanamo detainees are unconstitutional. Glenn Greenwald demolishes Yoo's reasoning in characteristically thorough and methodical fashion over at Salon.

After writing the torture memos, Yoo left the government and became a tenured professor at Boalt (UC Berkeley). Question: should Yoo be removed from teaching future lawyers because of his active participation in providing legal justifications for government sponsored torture? Professor Levinson on balkinization thinks not.

Historic meeting planned for Israeli and Syrian leaders

There's an article in today's London Times discussing a possible meeting between Basher Assad of Syria and Israeli prime minister Ehud Olmert. For various reasons -- including the domestic political problems of Olmert and Assad and the likelihood that we will soon welcome president Obama -- the stars may be aligned for a deal.

The article also mentions something interesting that is underreported in the U.S. press: the meeting between Olmert and Assad may take place during a "summit of European and Mediterranean countries" that will be held in Paris on July 13. As some of you know, I have long been a proponent of defusing the most pressing problems in the middle east by co-opting the various countries into a larger joint economic enterprise like the original European Economic Community founded in the 1950s. As noted in this article on euractiv.com, the Union of the Mediterranean already includes all countries of the E.U. (upon German insistence), Algeria, Egypt, Israel, Jordan, Lebanon, Morocco, the Palestinian Authorities, Syria, Tunisia and Turkey, and one of the key objectives is to establish a free trade area by 2010. Perhaps this is overly ambitious, but one can always hope (especially when there's money to be made).

How the mind works

Sometimes you come across something that broadens your horizon, deepens insight, and so on. The following article by Israel Rosenfield and Edward Ziff in this month's New York Review had that effect on me -- How the Mind Works: Revelations. In it, Rosenfield and Ziff explain the latest biological research into how our minds work, including how we form memories and how we are conscious of ourselves and our surroundings. One amazing experiment about the "phantom pain" experienced by people who have lost a limb is described as follows:

One famous case is that of a young man who had lost his hand in a motorcycle accident. In a therapeutic procedure devised by V.S. Ramachandran, and described in his book with Sandra Blakeslee, Phantoms in the Brain, the patient put his intact hand in one side of a box and "inserted" his phantom hand in the other side. As the illustration on this page shows, one section of the box had a vertical mirror, which showed a reflection of his intact hand. The patient observed in the mirror the image of his real hand, and was then asked to make similar movements with both "hands," which suggested to the brain real movement from the lost hand. Suddenly the pain disappeared. Though the young man was perfectly aware of the trick being played on him —the stump of his amputated arm was lying in one section of the box—the visual image overcame his sense of being tricked. Seeing is believing! Pain—the consequence of the incoherence between the brain's creation of a phantom limb and the visual realization that the limb does not exist—disappeared; what was seen (a hand in the mirror) matched what was felt (a phantom).

The implications of some of this research are astounding. For example, how can we fully trust line-up identifications when memories "can be modified by the addition of new information?"

The unsuccessful E.U. Constitution and Lisbon treaty (2)

Some thoughts about Robert Kagan's view of Europe as increasingly irrelevant as reflected in the rejection of the Lisbon treaty -- Kagan's oped in today's Washington Post

Kagan understands the world in terms of power -- dividing the world into leaders and followers, and into those "with us" and those "against us" (first the communists, now the so-called islamo-fascists). Like so many others, both here in the U.S. and in Europe, he bought into Huntington's clash of civilization paradigm. Viewed through this lens, Europe is losing relevance because (i) it has not made sufficient investments into military development; and (ii) it is weakened by the current enemy-du-jour (Muslims) from within.

But this is generally not how most Western Europeans see the world. Centuries of war and unspeakable atrocities have ingrained a distrust of military force to achieve positive change. This notion is quite like the traditional American distrust of "government." As a result, use of force must be constrained (institutionally and legally) and legitimate -- i.e. absent U.N. approval, military force is only justified to defend the country against an imminent threat. As shown by his support for the illegal and illegitimate war in Iraq and his preference for "strong leadership", Kagan views those institutional and legal restraints without the same historical perspective (and treats them as pesky impediments at best).

Kagan similarly ignores the historical context of the relationship between the U.S. and Western Europe. After WWII, the U.S. and Western Europeentered into an agreement: in return for accepting U.S. leadership and dominance, Western Europe enjoyed the protection of the U.S. military umbrella (thereby allowing it in part to invest in the current welfare systems, education and the economy). Although the terms of this transatlantic agreement became the subject of renegotiation after 1989 (with different European countries taking different approaches), it is still not in the U.S.'s interest if Europe were to begin making the kind of military investments that we see here. Indeed, the same "neocons" and "realists" who decry Europe's supposed irrelevance would suddenly perceive a threat to U.S. interests and perhaps decide that Europe is a more realistic enemy than the amorphous (and incapable) "islamo-fascists."

Rearming Europe would also be terrible for Europe. With the exception of its common agricultural policy, Europe is now on balance a force for "good" in the world. But this is partly the result of a horrific legacy and historical guilt stemming from colonialism and genocide. So why give matches to a pyromaniac seeking to make amends? It would also simply be a waste of resources that are used to support countries that are economically and socially behind the times (like the $60 billion plus that was invested by the E.U. in Ireland). Moreover, rearming for what purpose? To fight the Russians and the Chinese as Kagan suggests? Who would benefit from that? Although Europe needs Russia for its resources, Russia needs Europe for its cash, infrastructure and common market (not the mention that Russia is "European" too). Similarly, Europe and China have developed very strong economic ties that would not be served by creating a new arms race. Indeed, the argument that Europe needs to rearm itself lies on yet another false dichotomy and the continued (and increasingly desperate) search by the "right" for external threats -- Russia, China and the E.U. simply do not pose any military threat to each other now or in the foreseeable future.

Refusing a clash of civilizations paradigm also shows that rather than losing relevance, Europe is actually gaining importance and relevance as an honest broker and social laboratory. Although many citizens of many European countries are (frequently too) distrustful of their Muslim fellow-citizens for cultural and economic reasons, most governments and elites are actively resisting the notion that all Muslims are dangerous or disloyal to their country. With results: the active cooperation between citizens who are Muslim with the security and intelligence services has helped thwart attacks and has saved lives (including U.S. lives) around the world.

In short, Kagan and his followers should stop pandering their facile notions by painting the world into black and white. The belief that everyone in the world can be broadly categorized as friend or foe simply does not help make this world a better place for anyone (least of all Americans). Indeed, when was the last time you traveled to South America, Asia or even Europe and were not a little apprehensive identifying yourself as an American? -- when I lived in Paris a few years ago, I saw so many "Canadians" that by any count all of Canada was enjoying a vacation abroad.

The unsuccessful E.U. Constitution and Lisbon treaty

On "balkanization," professor Sandy Levinson argues that the European Union should abandon its quest for unanimous ratification and should instead adopt allow ratification by a majority of European countries -- Levinson's post.

A few thoughts:

Professor Levinson is right that requiring unanimity makes it much harder for a constitutional framework or treaty to be adopted. However, this is at it must be -- Europe is not a nation, state or country, and no one wants to be bound by decisions of citizens of another country. Imagine adopting a new regional trade agreement whereby the U.S. is bound by the decisions of Canada and Mexico...

However, all of this is changing; many people in Europe are living the "European" dream -- they live, marry and pursue their happiness across borders while enjoying the best that this diverse group of countries called Europe has to offer. If you were an older English couple, would you not rather sip a Burgundy red while watching the sun set in Cyprus or Seville as opposed to saving up pounds for the heater in Bradford? Or if you were a young and ambitious French or German person, why not live in London for a few years with your Swedish boyfriend while entering the world of sophisticated financial products? Given sufficient time, professor Levinson's suggestion may therefore well become a solution that IS palatable to most Europeans.

In the meantime, comments from U.S. neocons that the U.S. is better and unafraid of Europe merely show the binary mindset of those on the "right." Why not acknowledge that there is more that unites us than there is that divides us (that is, once the current awful regime has been sent back to Texas and Wyoming) and just let others be and pursue life, liberty and happiness? You know those unalienable rights?