Monday, October 27, 2008

Home Stretch

Home Stretch







The Unlikely Truth About Polls


At this point in every campaign season, failing politicians are saying something like: "I don't believe in the polls. The only poll that counts is on Election Day."



This year you have to wonder if that might be the right attitude. Should we believe these polls?


The worrisome thing is how diverse they are. On Thursday, for example, the IBD/TIPP national poll had Obama's lead shrinking to a mere 1.1%, while the CBS/NYT poll it growing to 13%. Something like that happens almost every day. How is that even possible? If the polls are all measuring the same underlying reality, shouldn't every poll be within the margin-of-error of every other poll?



It turns out that's not what margin-of-error means. A poll's MOE is really only the margin of one kind of error, known as sampling error. The other kinds of error are nearly unmeasurable (at least until there's a real election), but that doesn't mean they're zero.



Sampling error amounts to this: If the pollster does everything right -- chooses a truly random sample of the electorate, questions them in a way that doesn't influence their answers, and so on -- and if the respondents don't lie, then the results still might be off just because of the luck of the draw. You might happen to pick a few too many McCain or Obama supporters in one day's sample, just as you might flip ten coins and get four or six heads rather than five.



But sampling error is just the beginning of what might go wrong with a poll.

The Weekly Sift: Home Stretch










Sift: October 27




















The Unlikely Truth about Polls


At about this time in every campaign,
failing politicians are saying something like: "I don't believe in the
polls. The only poll that counts is on Election Day."



This year you have to wonder if they might be telling the truth: Should we believe these polls?



The worrisome thing is how diverse they are. On Thursday, for
example, the IBD/TIPP national poll had Obama's lead shrinking to a mere 1.1%, while the CBS/NYTpoll
it growing to 13%. Something like that happens almost every day. How is
that even possible? If the polls are all measuring the same underlying
reality, shouldn't every poll be within the margin-of-error
of every other poll?



It turns out that's not what margin-of-error means. A poll's MOE is really only the margin of one kind of error, known as sampling error.
The other kinds of error are nearly unmeasurable (at least until
there's a real election), but that doesn't mean they're zero.











Sampling error amounts to this: If
the pollster does everything right -- chooses a truly random sample of
the electorate, questions them in a way that doesn't influence their
answers, and so on -- and if
the respondents don't lie, then the results still might be off just
because of the luck of the draw. You might happen to pick a few too
many McCain or Obama supporters in one day's sample, just as you might
flip ten coins and get four or six heads rather than five.









But sampling error is just the beginning of what might go wrong with a
poll.







Today,
pollsters do lots of tricks with the data -- tricks that are supposed
to make the poll more accurate. One of those tricks is called re-weighting:
If you look at your sample and it conflicts with known demographic
data, you make a correction. So if your sample is 55% male and the
electorate is only 49% male, then you might count each male
response as slightly less than one vote to make the overall sample
representative. Or you might re-weight by age or race or income.
Different polls juggle the numbers in different ways, and so they might
report different results even if they interview the same people and get the same responses.









A particularly difficult thing to guess, especially this year, is who
is actually going to vote. That's what polls do when they report
results on "likely voters". Different polls have very different ideas
about what makes a person likely to vote. Nate Silver, the polling wonk behind 538.com, gives us some much-needed insight into the likely-voter models
of various pollsters. He notes, for example, that on Wednesday both CNN
and ABC showed Obama with a 10-point lead among registered voters.
Among "likely" voters, though, Obama's CNN lead shrunk to 5%, but was
still 9% on ABC. That 4-point difference amounts to CNN and ABC having a disagreement about who is going to vote.







In most years, the likely voters are more Republican than the merely
registered voters. The relatively powerless get discouraged about
voting, but if they vote, most of them vote Democrat. This year,
though, Obama has invested massively in what the pros call the "ground
game" -- registering new voters and making sure they get to the polls
come election day. If that works -- and it did in the primaries -- then
any previous cycle's model of likely voters is probably wrong.








Silver suggests a very simple check pollsters could do in this era of early
voting: Ask people whether they've already voted. If a large number of
people that your model says are "unlikely" have in fact already voted,
then you need to fix your model.








Because of this modeling uncertainty, Silver advises taking any single
poll with a grain of salt. If it looks like an outlier, he says, it
probably is.



"Not Because They're Racists"


The weirdest event of the week was that young white female McCain
worker in Pennsylvania who made up a story about being attacked by a
big black male Obama supporter. I think the whole story is sad and has
little to do with either McCain or Obama, so I'm not going to repeat
the woman's name or link to a picture of her. But there is one person
here who deserves to be singled out for shame: John Moody, the
executive vice president of Fox News.



Writing on the Fox Forum blog, Moody called the incident a "moment of truth" and a "watershed event" for the presidential race:

If [the woman's] allegations are proven
accurate, some voters may revisit their support for Senator 
Obama, not because they are racists (with due respect to Rep. John
Murtha), but because they suddenly feel they do not know enough about
the Democratic nominee.

If the incident turns out to be a hoax, Senator McCain’s quest for the presidency is over, forever linked to race-baiting.




Both of these assertions are perverse. Let's take the second one first.
The incident turned out to be a hoax, but the strange idea that
McCain's quest for the presidency is over now has quietly vanished at
Fox. Moody has not even done a follow-up what-was-I-thinking blog post.



Now re-read that first paragraph. If some black man in Pittsburgh
really did attack a white woman, that would cause some voters to
"revisit their support for Senator Obama."



What other than racism could possibly connect those dots?



But of course, open racism is not acceptable in America today, so Moody
offers his readers a rationalization: If this incident makes you want
to vote against Obama, you're not a racist, you just "don't know
enough" about Obama -- as if there were something you could "know"
about Obama that would disconnect him from this incident that your
racism has connected him to.









Short Notes




















You shouldn't let desperate politicians distract you this week, but if you're
looking for a way to distract yourself, try Neil Gaiman's new novel. Gaiman is a
writer of twisted fantasy for all ages -- just not all ages at the same time. He
has written for children (The Day I Swapped My Dad for Two Goldfish),
youth (Coraline), and grown-ups (American Gods), and his 1990s
series Sandman is legendary among comic-book readers. Well, what would
happen if such a writer did a homage to Kipling's The Jungle Book? The
Graveyard Book
, of course: Nobody Owens is an orphaned toddler who is
adopted and raised by the ghosts from an ancient and all-but-abandoned English
graveyard. With the help of a protective vampire and werewolf, the dead keep
Nobody safe from those truly scary beings, the living.






If Sarah Palin can see Russia, maybe the Russians are watching her too. Vlad and Boris sing of their unrequited love in "Song for Sarah". 

I've told a lot of stories about McCain/Palin supporters behaving badly, so I should point you to at least one where they behave well. 

The Chicago Tribune
provides a little local perspective on Bill Ayers. Eric Zorn found 60
local-news references to Ayers during the 90s. "the record shows he
just wasn't a very controversial figure." Mike Royko thought he was a
jerk, but associating-with-jerks isn't much to smear a guy with.

One of cutest get-out-the-vote tactics I've ever seen: A customizable video blaming an individual voter for Obama's one-vote loss. Send them to your friends.



Friday, October 24, 2008

Another feature test

Another feature test

blah blah blah.

bookmark













link

Heading

Feature test



I want to figure out what Blogger is doing with the internal bookmarks.



Here's a bookmark.







This is a link to that bookmark.

Saturday, May 24, 2008

This is a test of what Blogger does with GoogleDocs' horizontal lines. I'm inserting one here.
And I hope that it neatly separates these two sentences.

Tuesday, April 29, 2008

Some Assembly Required

A sermon delivered by Doug Muder
at First Parish in Bedford, Massachusetts
April 27, 2008



My favorite route home from college used to take me through the small town of Ripley, Illinois. I always smiled when I drove past the sign for the Ripley Church of God. Because every time, the same irreverent phrase went through my mind: Believe it or not.

These days something similar happens whenever I pass an Assembly of God church. You know what phrase pops into my mind then? Some assembly required. I picture a bunch of people with a God kit and an enormous set of directions, trying to figure out how to make the omnipotence fit together with the benevolence.

I suspect that’s not really what they do in Assemblies of God. But it’s not a bad metaphor for what Unitarian Universalists do. Our religion doesn’t come to us as a finished product; some assembly is required. As George Marshall wrote: “Don’t come to a Unitarian Universalist church to be given a religion. Come to develop your own religion.”

Lately I’ve been thinking a lot about metaphors for Unitarian Universalism, because I believe that’s what goes wrong when we try to explain our faith to friends and guests and newcomers. No matter how precisely we define our terms or state our principles, if people arrive at this church with the wrong metaphors and analogies in their heads, they’re not going to make much sense out of what we say.

Take that Marshall quote: develop your own religion. What could that possibly mean? Are you supposed to climb Sinai and meet God face-to-face? Proclaim yourself the Messiah? What?

I think that line works best if you interpret develop as what happens in an old-fashioned darkroom. Expose your religion to the right light and the right catalysts, and gradually its unique image will become clearer and clearer. In that sense, this church is good place to develop your religion.

*

When newcomers arrive with the wrong unconscious metaphors in their heads, they tend to ask yes-or-no questions where both answers are bad. Raise your hand if you’ve heard this one: Can UUs believe anything they want?

How do you answer that? Well, UUs have freedom of belief. No creed. No dogma. So the answer you want to give is “Yes. At this church you can believe anything you want.”

But that doesn’t sound like a serious religion at all, does it? “What do I want to believe today? I think I’ll believe … that I can fly! Wouldn’t that be nice? Yes, I think I’ll believe that today.”

And a newcomer thinks: “Maybe these privileged, white, suburban intellectual types can get away with that kind of religion. But my life is harder than that. I need a real religion, not something whimsical.”

*

So what went wrong there?

The question Can you believe anything you want? assumes a bad analogy. You see, freedom of belief is unfamiliar to people whose only experience is in creed-based religions, so they understand it through an analogy to freedom of speech. And there the either/or makes perfect sense: If no one is telling me what to say, then I can say whatever I want. Up is down. Two plus two is five. I haven’t changed a bit since I turned thirty.

I can say all those things; but I can’t believe them. You see, believing anything you want isn’t a religion, it’s a mental dysfunction.

That’s not what we’re doing. As UUs we have freedom from authority, not freedom from reality. Better to describe it like this: Your life – whether it has been easy or hard or somewhere in between – has taught you certain things. It doesn’t matter whether those things are in some creed or scripture, and it also doesn’t matter whether or not you want to believe them. You just do. And the freedom this church offers is that you can admit that you believe what you really do believe.

*

Here’s a metaphor I remember from growing up as a Christian: Church is where you study for your final exam. Judgment Day is coming. There will be questions. You’ll need answers. So you go to church.

Metaphors like that have a way of shaping your perceptions, even after you think you’ve forgotten them. And people who bring a final exam metaphor to a UU church are going to be confused. Because we don’t give them answers: Is there a God? Is there an afterlife? Should they be worshiping something or praying to somebody? “Those are good questions,” we say. “You should work on them.”

But if a final exam is coming, that response isn’t very helpful. Imagine coming to the cram session for your history final, and the teacher won’t tell you when the Civil War ended. And each student seems to have a different answer: 1820 ... 1865 ... 1910 ... Tuesday. And it doesn’t bother them. They sit there and contradict each other and everybody seems happy.

That’s how we look to a newcomer who’s thinking about a final exam. Afterlife? This person believes in reincarnation. That one expects to see her loved ones in Heaven. Somebody over there thinks death is final. And maybe we argue, but we’re not trying to enforce some agreement. We’re not looking to throw anybody out. We even teach each other’s children. How does that work?

*

We can’t address that kind of confusion purely on an intellectual level, with more precise definitions and clearer principles. If we’re going to communicate what UUism is really like, we need to make the unconscious metaphor explicit and challenge it.

So: If life is a class, what if it’s the kind of class where you work on a project rather than study for an exam? What if your life is something that you’re making, not something you’re going to be quizzed on? That changes everything. Now you don’t need a cram session, you need a workshop.

And if it’s a workshop where people use a lot of different ideas and different techniques – so much the better. When I get stuck, when something’s not working for me, I can wander around the workshop and see a lot of different ways of making a life. Humanists do it this way or that way. Christians have this extra tool. Here’s a little trick I picked up from the Buddhists.

Let’s push that metaphor a little further. If you’re an artist or a craftsman, only two things ultimately matter: First, the product, the actual thing that you’re eventually going to show the world. And second, the experience of making -- your sense of inspiration, the ecstatic feeling you get when you fall into your work and everything starts coming together.

Everything else only matters to the extent that it affects one of those two. For example, your beliefs about your craft have only an instrumental importance. If they don’t affect either the product or your experience of making the product, then who cares about them?

Follow that metaphor back to life. As you’re making your life, the two ultimately important things are: First, what you do, the objective actions that you take in the world. And second, how you experience your life. Are you just getting by, passing the time? Or is your life vibrant, exciting, meaningful?

Your beliefs about life – your theology and your philosophy – are secondary.

Let me say that again, because I think that it’s sufficiently unorthodox to be worth repeating: Theology, by itself, doesn’t matter. You believe in God or you don’t. You believe in an afterlife or you don’t. But the important things are what you do and how you experience it.

*

Now, to a newcomer all that may sound like a religion that I just made up. And certainly not all UUs would agree with everything I just said – that’s OK, they don’t have to. But these ideas are rooted an a long tradition.

The whole point of Universalism was to escape the final exam metaphor: Life is a class that everyone passes. Great Universalists like Hosea Ballou didn’t preach to gain converts for Heaven, but to spread the experience of God’s love here on Earth. One of the most important sermons in Unitarian history, Theodore Parker's “The Transient and the Permanent in Christianity” placed the whole scaffolding of orthodox theology – the Trinity, the atonement, the infallibility of scripture – in the transient category. What was permanent? The Christian experience: “Religious doctrines and forms will always differ,” Parker said. “But the Christianity holy men feel in the heart, the Christ that is born within us, is always the same thing to each soul that feels it.”

Another famous Unitarian, President John Adams, said, “I do not attach much importance to creeds because I believe he cannot be wrong whose life is right." As far back as the 1600s, Spinoza was picturing a congregation in which each person believes something a little different from his neighbor. He wrote: “Each person – seeing that he is the best judge of his own character – should adopt whatever beliefs he thinks best adapted to strengthen his love of justice.”

Let me sum that up: If you have beliefs that let you live with your eyes open, give you an enthusiasm or a deep satisfaction with your life, and inspire you to live kindly and to be a force for good in the world, then as UUs we are happy for you – whether we share your beliefs or not. We’re happy for you to belong to this church, and we’re happy for you preach from our pulpit, and we’re happy for you to teach our children. Because living comes first; believing is secondary.

*

Let’s do one more newcomer question: Could Hitler be a UU?

Now, the people who ask this question usually aren’t trying to compare us to Hitler. They’re just trying to find our boundaries. How far does our welcome go? Is anything over the line?

The most superficial version of this question is whether Hitler could attend a UU church. And there I think that -- as long as he behaved himself -- the answer is yes. I’m sure having Hitler in the room would make a lot of us uncomfortable. It would make me uncomfortable. But we’d be balancing that discomfort against another idea that comes out of our Universalist heritage: We don’t give up on people. We don’t assume that anyone is irredeemable. The likelihood that a Hitler could turn his life around may be very, very small. But to the extent that Universalists believe in miracles, those are the kinds of miracles we believe in.

The challenging question, though, isn’t “Could Hitler change into a UU?” but “Could Hitler stay the way he was and be a UU?” After all, people with lots of different philosophies can be UUs. There are Christian UUs and Buddhist UUs and atheist UUs. How far can that go? Could there be Nazi UUs?

There I think the answer is no. But explaining why takes us into another set of unfortunate metaphors.

The point of asking about Nazi Unitarians is to find a boundary. The questioner expects us to say “No, that’s over the line.” And then we’ll have to explain where the line is. The underlying metaphor is that a religion is a territory with borders to defend. And if you give the easy answer, if you say that Hitler couldn’t be a UU because he didn’t believe in the inherent worth and dignity of every person, you’re ratifying that metaphor. You’re turning the Principles into a creed and using them to draw boundaries. But that’s not what the Principles are for. The Principles describe the center of UUism, not its boundaries. And we keep restating our principles because our center moves from one generation to the next.

Eighty years ago, L. B. Fisher was already rejecting the territory metaphor. “Universalists are often asked to tell where they stand,” he wrote. “The only true answer to give to this question is that we do not stand at all, we move. Or we are asked to state our position. Again, we can only answer that we are not staying to defend any position. We are on the march.”

A related metaphor is that a religion is a kind of museum. Certain divine truths were revealed to our ancestors, told to us by our parents, and now we preserve them unchanged for our children. And if our parents and grandparents have let those truths get corrupted, then we need to reach even further into the past to recover the purity that our faith had during its Golden Age.

That’s not us. Unitarian Universalism never had a Golden Age. We aren’t trying to get back to Eden, or the days of the prophets, or the early Christian community, or even Emerson’s circle of Concord transcendentalists. Because UUism is not a museum, it’s a laboratory. We’re not preserving the truths of our ancestors; we’re using them, experimenting with them, and trying to make them better.

In every generation we’ve had great teachers like William Ellery Channing. And in every following generation we’ve had Samuel Mays to argue with them. That’s our tradition. It’s not a settling, boundary-defining, fortress-building tradition. It’s an evolving tradition, a tradition that keeps moving and changing.

And so, if you think of a religion as a territory with boundaries, Unitarian Universalism is going to confuse you. We’re not a walled city, we’re a caravan. We move; we are on the march. We aren’t defending lines in the sand, we’re traveling. We have all joined the caravan at different points. We carry different baggage. We progress at different speeds. But we’re on the road together, and we’re doing our best to help each other along the way.

Now, caravans don’t have borders. There are scouts running ahead, and some will be followed and some won’t. There are stragglers. There are outliers. Some people will turn in a different direction, and some will wander into the desert and get lost. You can’t draw a line around a caravan and say exactly who’s in and who’s out. But one thing you can say with some certainty is that the people you meet coming the opposite way are not part of the caravan. And while some of them may turn around and decide to join you, the ones that don’t turn around are not joining.

And that’s how I respond to the idea of Nazi UUs. We may not be able to say exactly where this caravan is going, but it has a history, it has a direction. For centuries, for as long as we’ve been on the road, we have been traveling in some very un-Nazi directions: towards greater freedom, more acceptance of difference, less violence, and an ever-wider circle of compassion.

Are those divine, unquestionable truths? Should we keep them safe in our museum. No. We continue to test them. We continue to experiment and improve and elaborate. And we keep moving. But if you want to undo that whole history, you’re not just pointing in a new direction. You’re asking us to go back and start over. It would be a new caravan then. It wouldn’t be Unitarian Universalism.

*

I’d like to close by coming back to a point I touched on earlier: the misperception that there is something whimsical and insubstantial about this faith. That it’s whatever you want. That we make it up fresh every morning, and maybe tomorrow, when you really need it, you won’t find anything at all.

Our history shows that we are anything but insubstantial. Look at the people who have lived and died in this movement. Look at the lives they have led, the causes they have fought for, the people they have helped. Theodore Parker used to preach with a gun in his desk, in case someone came to collect the fugitive slaves he was hiding. This is not a tradition of whimsical, indecisive, insubstantial people.

The illusion that there is nothing here comes from looking for the wrong things. If you come here looking for a museum, you won’t find it; this is a laboratory. If you come looking for answers to the final exam, sorry, we’re working on our projects. If you’re looking for boundaries and fortresses to defend them; we don’t have any. We’re a caravan; we’re on the march. If you’re looking for the Church of Believe It Or Not, look somewhere else. This is the Church of Some Assembly Required.

We are the heirs to a long and proud tradition, but it’s an evolving tradition. We come from a long line of people who refused to accept what they were taught and pass it down unaltered. All the great names in this tradition – Channing, Ballou, Emerson, Parker, and many others – we would dishonor their memory if we turned this caravan around and went back to the places they discovered.

And future generations of Unitarian Universalists would dishonor our memory if they stopped here and built a fortress and started defending its walls. Half a century ago, Brock Chisholm put it like this: “Unless we are very careful, very careful indeed, and very conscientious, there is still great danger that our children may turn out to be the same kind of people we are.”

And Theodore Parker said, “Progressive development does not end with us.” May that be as true in our generation as it was in his.

Monday, April 7, 2008

Dark Parallel Universe

It’s all like some dark parallel universe – not the America I thought I grew up in. -- Scott Horton

In This Week's Sift:
This week the election, the war, and the economy take a back seat and we focus on new developments about torture and the law.

The Green Light: In the May issue of Vanity Fair, Phillippe Sands destroys the "a few bad apples" theory of torture, and raises the possibility of future war-crime trials for some high-ranking administration officials. I'm reminded of the reaction Philip Zambardo (of the Stanford prison experiment) had to Abu Ghraib: "President Bush gets on and says 'We're going to get to the bottom of this,' which parenthetically always means 'We're never going to get to the top of this'." But maybe we're starting to.

It Had To Be Yoo: This week a new and far more detailed John Yoo memo got declassified. It turns the Convention Against Torture inside-out, and puts forward a legalistic rationale for the president wielding the powers of a king.

Short Notes: Mugabe holds on in Zimbabwe, out-sourcing government spying, and my April Fools' post on another blog

The Green Light
The May issue of Vanity Fair contains a very important article: The Green Light by Phillippe Sands. In it, Sands traces "enhanced interrogation techniques" from their conception at the highest levels of the Bush administration to their application at Guantanamo and Abu Ghraib.
The Bush administration has always taken refuge behind a “trickle up” explanation: that is, the decision was generated by military commanders and interrogators on the ground. This explanation is false. The origins lie in actions taken at the very highest levels of the administration -- by some of the most senior personal advisers to the president, the vice president, and the secretary of defense. At the heart of the matter stand several political appointees -- lawyers -- who, it can be argued, broke their ethical codes of conduct and took themselves into a zone of international criminality, where formal investigation is now a very real option. This is the story of how the torture at Guantánamo began, and how it spread.
Sands' article ends by considering whether these administration lawyers might be subject to trial for war crimes. The Military Commissions Act -- passed shortly before the 2006 elections took control of Congress away from Republicans -- gives them immunity from prosecution in the United States. But Sands notes that this protection may backfire.
“That is very stupid,” said the [anonymous European] prosecutor, explaining that it would make it much easier for investigators outside the United States to argue that possible war crimes would never be addressed by the justice system in the home country—one of the trip wires enabling foreign courts to intervene.
Sands concludes that for many administration officials "prudence may well dictate a more cautious approach to international travel."

It Had To Be Yoo
One man who should consider his international travel plans carefully is John Yoo.

Tuesday an ACLU lawsuit succeeded in declassifying a previously secret memo in which then-Bush-administration-lawyer John Yoo justified the president's right to order torture. The blogosphere has been full of commentary ever since -- Marty Lederman over at Balkinization has called it "the full employment memo for bloggers."

Background. In March, 2003, John Yoo was a deputy assistant attorney general working in the Justice Department's Office of Legal Counsel (OLC). Last October (in a review of Jack Goldsmith's book The Terror Presidency) I described the OLC as "probably the most powerful organization that the average American hasn't heard of." In simple terms, the OLC is the executive branch's internal supreme court. Unlike the actual Supreme Court, the OLC makes rulings about what the law will or won't let the government do in the future. Administration officials can't ring up the Supreme Court and ask "What if I did this?" so they call the OLC.

Once the OLC has put something in writing, that becomes the executive branch's official interpretation of the law. From the president down to the lowliest executive branch employee, following an OLC memo creates a presumption that you are making a good-faith attempt to obey the law.

This process works fine as long as the OLC itself operates in good faith -- if, in other words, it seriously tries to figure out what the law says rather than trying to justify the administration doing whatever it wants. But the OLC is part of the executive branch, and (according to the unitary executive theory of the Bush administration) the entire executive branch is simply an extension of the president's will. Carried to its logical conclusion, this creates a hall-of-mirrors situation that Georgetown law professor Jonathan Turley has called Mukasey's Paradox, in honor of our current attorney general:
Under Mukasey's Paradox, lawyers cannot commit crimes when they act under the orders of a president -- and a president cannot commit a crime when he acts under advice of lawyers. ... Mukasey's Paradox, if adopted, will result in administration officials being effectively beyond the reach of the law.
The Memo. On March 14, 2003, Deputy Assistant Attorney General Yoo sent an 81-page memo (innocuously titled "Re: Military Interrogation of Alien Unlawful Combatants Held Outside the United States") to William J. Haynes II, the Pentagon's chief lawyer. Presumably, the DoD wanted to know what its interrogators could legally do, and the bureaucratic path to resolve that question was for Haynes to ask the OLC. Yoo's memo was the OLC's reply. It follows up on a far less detailed August, 2002 Yoo memo.

These memos are no longer the official interpretation, because a later head of the OLC, Jack Goldsmith, rescinded them. (Details in the Washington Post.) As he describes at length in The Terror Presidency, this brought Goldsmith into conflict with the superiors Yoo was toadying for, Dick Cheney and Cheney's lawyer David Addington. Neither Goldsmith nor Yoo is currently in the government, but Cheney and Addington are still very much in power, and the thinking behind the Yoo memos is still the animating philosophy of the Bush administration.

In order to understand the memo, you need to grasp the simple torture-is-illegal argument it is trying to get around.
  1. Article VI of the Constitution says: "all Treaties made, or which shall be made, under the authority of the United States, shall be the supreme Law of the land"
  2. The Senate ratified the United Nations Convention Against Torture (CAT) treaty.
  3. The CAT defines torture as: "Any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information ..."
  4. The CAT also says: "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."
Instead, Yoo concludes:
Thus, if interrogation methods were inconsistent with the United States' obligations under CAT, but were justified by necessity or [national] self-defense, we would view these actions still as consistent ultimately with international law. Although these actions might violate CAT, they would still be in service of the more fundamental principle of self-defense that cannot be extinguished by CAT or any other treaty. Further, if the President ordered that conduct, such an order would amount to a suspension or termination of the Convention. In so doing, the President's order and the resulting conduct would not be a violation of international law because the United States would no longer be bound by the treaty.
Yoo twists definitions until torture means only the purposeless, sadistic infliction of pain. But interrogation has a purpose -- "obtaining from him or a third person information" -- so it cannot be torture. Further, as in the quote above, treaty obligations melt away in the face of the president's will. In Yoo's reasoning it is tautological that the president cannot violate a treaty; whether or not he has notified anyone that the U. S. is withdrawing from a treaty, the mere fact that his orders seem to violate the treaty implies that the president has suspended the treaty's provisions.

Deeper Implications. As I said previously, this memo is not currently in effect, so it's main significance is that it illustrates Bush administration thinking, especially the tautological reasoning that has been showing up in arguments for executive power ever since Richard Nixon's 1977 interview with David Frost.
NIXON: Well, when the president does it, that means that it is not illegal.
FROST: By definition.
NIXON: Exactly. Exactly.
Bear this in mind the next time someone from the administration claims that it does not torture, or that it does not break the law. In their minds, such statements are true by definition, without reference to any facts.

Presidents and Kings. Personally, I was brought up short when I came to this statement (on page 5 of Yoo's memo), which hasn't gotten much attention yet:

the structure of the Constitution demonstrates that any power traditionally understood as pertaining to the executive -- which includes the conduct of warfare and the defense of the nation -- unless expressly assigned to Congress, is vested in the President. Article II, Section I makes this clear by stating that the "executive Power shall be vested in a President of the United States of America." That sweeping grant vests in the President the "executive power" and contrasts with the specific enumeration of the powers -- those "herein"-- granted to Congress in Article I.

Let me unpack that a little. The Constitution was designed to limit the government by listing its powers -- if it's not listed, the government can't do it. That's how Patrick Henry could say "The Constitution is not an instrument for the government to restrain the people, it is an instrument for the people to restrain the government." In Federalist 84, Alexander Hamilton argued that the enumeration of powers made a Bill of Rights unnecessary: "For why declare that things shall not be done which there is no power to do? Why for instance, should it be said, that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed?"

But what Yoo argues here is that the Constitution's enumeration limits the powers of Congress, but not those of the president. Beyond the powers listed in the Constitution, Yoo grants the president "any power traditionally understood as pertaining to the executive." When the Constitution was written, the executives of all other nations were kings. So it follows that traditional executive power means kingly power.

Commentary. My favorite blogs for commentary on the Yoo memo are Balkinization and the new Convictions blog on Slate. Both promise more detailed analysis of the Yoo memo in the future, so stay tuned.

Jack Balkin on Balkinization writes: "
If the Supreme Court adopted John Yoo's theory of Presidential dictatorship, it might send us spiraling down toward the end of our two centuries' old constitutional experiment with democracy, a possibility that the framers imagined but tried to forestall through the creation of doctrines like the separation of powers and checks and balances."

FireDogLake's looseheadprop reports a more emotional reaction to reading Yoo's memo: "
I kept tearing up. My law partner asked me if someone close to me had died." She promises a more detailed rebuttal of the memo's claims later, but does comment on its shoddy workmanship: "The Yoo memo, as you will see in later posts, completely lacks any citation whatsoever for the most sweeping and outrageous claims. Small wonder, since I doubt he could find any law or case that even came close to some of his nuttier propositions."

Balkinization's Marty Lederman also promises a researched critique later, but comments on the bizarre procedures surrounding the memo: "Did John Ashcroft or Jay Bybee sign off on this memo? Did either authorize Yoo to issue it without any review by the AAG or AG? If the answer to both questions is 'no,' then why did John Yoo think he was empowered to issue it? Why did Jim Haynes accept it as the official view of the Office of Legal Counsel? Didn't anyone check with Bybee and/or Ashcroft? If not, why not?"

EmptyWheel quotes Bill Leonard, who until December was the head of the administration's Information Security Oversight Office: "The document in question is purely a legal analysis" containing “nothing which would justify classification." So why was it classified? Harper's Scott Horton explains: "The memorandum would have produced reactions of ridicule and outrage from throughout the professional community—as indeed it has. The author and the classifier knew that. They used classification as a political tool to keep something which is a quintessentially public document out of the reach of the public."

Horton goes on to say, echoing Sands' Vanity Fair article: "The circumstances under which the memoranda were prepared and issued constitute a joint criminal enterprise involving individual actors; the memos were issued as part of an actual plan to induce individuals to commit criminal acts by ensuring that their crimes would never be investigated or prosecuted."

Glenn Greenwald: "Yoo wasn't just a law professor theorizing about the legalization of torture. He was a government official who, in concert with other government officials, set out to enable a brutal and systematic torture regime, and did so. ... That John Yoo is a full professor at one of the country's most prestigious law schools, and a welcomed expert on our newspaper's Op-Ed pages and television news programs, speaks volumes about what our country has become." The same post has an embedded video in which, asked to comment on the legality of the president hypothetically ordering the crushing of a child's testicles, Yoo says: "I think it depends on why the president thinks he needs to do that." [Yoo is probably making the point I described earlier: If the president is just being a purposeless sadist, it's illegal. But crushing children's testicles to protect the nation is not torture, by definition, so it's OK.]

The New York Times quotes former Air Force lawyer Scott Silliman about the impact of Yoo's memos: Because opinions issued by the OLC are binding on the Defense Department, "Mr. Yoo’s opinion effectively sidelined military lawyers who strongly opposed harsh interrogation methods."

The major media for the most part ignored this issue, preferring to keep us informed about Obama's bad bowling. (Glenn Greenwald has the numbers.) But Andrew Sullivan managed to say the words "war crimes" on Chris Matthews' Sunday show.

Jesus' General writes one of his classic spoof letters to Yoo's current boss, the Dean of the Berkeley Law School. He congratulates Berkeley on hiring Yoo, which "allows Berkeley to finally get past its sordid history as the battleground for the expansion of our civil liberties and become the foremost advocate for that 'shining interrogation center upon a hill' so many of us wish our nation to become."

Short Notes
Back in 2003 when we were being told what a monster Saddam was, a lot of us asked "What about Robert Mugabe?" Well, Zimbabwe isn't a major oil producer, so the U.S. could live with Mugabe's monstrous ways. But last week Mugabe's party lost control of parliament for the first time since Zimbabwe stopped being Rhodesia 28 years ago. Mugabe may or may not have also lost the presidential election, whose results haven't been released. Maybe there will be a run-off, and the question of how fair that run-off will be is still being discussed. Time has the details. Today's NYT reports that Mugabe's party is asking for a recount of an election whose results still haven't been announced. So how do they know they lost the first count?

What's worse than being spied on by the government? Being spied on by a profit-making government contractor. Bad publicity is causing the Pentagon to shut down their Counterintelligence Field Activity (CIFA), one major source of such contracts. But Emptywheel doubts the DoD's sincerity, and expects another hydra-head to sprout somewhere else. Emptywheel has been watching CIFA for awhile, as this post from May, 2006 makes clear: "So let me connect the dots here. Republican legislators have set up this nifty scheme, whereby their buddies ply them with golf trips, swank real estate deals, and prostitutes. In exchange for that booty, they give their buddies contracts at Defense or Homeland Security or CIA. Spying contracts. Under those spying contracts, the buddies spy on American citizens, even funny bloggers [like Jesus' General] and peaceniks [like the Quakers]."

A couple April Fools Day posts you might want to look at: Scarecrow on FireDogLake reports that Bush will seek a third term: "The president issued a signing statement announcing that he is not bound by the Constitution's term limits." And on my Free and Responsible Search blog I invent a pioneer of the peace movement in Unsung Hero: Arjuna Bhishma.

Monday, March 24, 2008

Test Document

I want to test how titles work on Blogger/Docs.