False Dichotomies and the Way Out of Iraq


Bill Saletan observed a while back that our continuing presence in Iraq likely hinders progress toward that country's self-sufficiency and stability by encouraging dependency of Iraqi elites on the American military for security.  This week in the Atlantic Nir Rosen paints a portrait (subscription required) of an insurgency feeding on a sense of national humiliation and vengeance caused by the very American forces tasked with maintaining order until a native security apparatus is ready to take over.  (This is not a new idea.)  The juxtaposition of these circumstances presents something of a Catch 22:  security will not improve until American forces hand over security functions to native Iraqi forces, but the emerging Iraqi government will not take over security functions so long as American forces remain in Iraq.  Something will have to break the vicious circle if we do not intend to remain in Iraq indefinitely.

Saletan's piece suggests that only when we credibly threaten to leave Iraq will leaders in that country get serious about taking responsibility for their own security.  This would imply that a timetable for withdrawal would be just the thing to spur the development of a real Iraqi security force.  The counterargument, recently raised by Ivo Daalder here at TPM Cafe, is that an artificial timetable "gives the insurgents an incentive to wait us out."  Daalder, following Senator Carl Levin, argues for a sort of reverse-benchmarks approach:  so long as Iraqis appear to be making real progress in the political process, we should stay and support them, but if they fail to reach a political accord, we should leave.  But Senator Levin's argument is a bit more complex:  he proposes that we use the threat of setting a timetable for withdrawal as a tool to get Iraqi elites to meet a political benchmark.  In essence, Senator Levin is taking the central problem of Iraq -- a sizable portion of the population wants us to leave, but the elites that we expect to govern that population want us to stay -- and using it as leverage.  Implementing Senator Levin's plan would require skillful use of both timetables and benchmarks, and will likely require subltle manipulation of each.  For example, a timetable may be a useful incentive if communicated privately to Iraqi elites, but a disaster if insurgents become aware of it before those elites are able to alter their behavior, suggesting that a complex information management strategy -- potentially including substantial use of disinformation -- will be needed.  Perhaps most importantly, such a plan will require a candid recognition by policymakers that our goal in Iraq is not to fight terrorism, not to effect some broad geopolitical realignment, and not to spread democracy to the oppressed corners of the earth.  Our goal at this point must be simply to leave the place in as good a condition as we are able, and to do so as quickly as possible.  Our continued presence there is doing serious injury to the population of Iraq and the stability of the region, to say nothing of our military, our economy, our political process, and our standing in the world.

Altering people's behavior requires application of both carrots and sticks, rather than just one or the other.  It seems fairly clear that the only way to alter the behavior of a large cohort of the Iraqi insurgency is to withdraw completely.  But there should be ways to accomplish such withdrawal that do not leave Iraq in chaos.  It shouldn't be controversial to admit that a sensible Iraq policy has to include both timetables and benchmarks -- and for that matter any other tools at our disposal -- as stabilizing incentives to challenge and assist the elites we expect to govern the war-torn country we are handing over to them.  Iraq has become a hideously complex problem, and it is going to require flexible and creative thinking to get us out of it.  False dichotomies and internal hardening of positions prevent the progressive movement from taking the lead in that kind of thinking, which is precisely what we should be doing.

What Are They Trying to Hide?


In the 1999 case of Mitchell v. United States, Justice Scalia wrote a dissenting opinion (joined by Chief Justice Rehnquist and Justices O'Connor and Thomas) that should be quoted repeatedly by Democrats up to and during Judge Roberts's confirmation hearing. The question was whether it is unconstitutional to draw an adverse inference against a criminal defendant--that is, to conclude that she is likely guilty--based on her invocation of her Fifth Amendment right to remain silent.  Justice Scalia evidently believes that silence speaks volumes about guilt:


If I ask my son whether he saw a movie I had forbidden him to watch, and he remains silent, the import of his silence is clear. Indeed, we have on other occasions recognized the significance of silence, saying that "'[f]ailure to contest an assertion ... is considered evidence of acquiescence ... if it would have been natural under the circumstances to object to the assertion in question.'"  526 U.S. 314, 332 (1999) (Scalia, J. dissenting).

If Judge Roberts respects Scalia as a jurist, and respects his logic, yet still won't answer questions about whether he believes the Constitution includes a right to privacy, or whether Roe v. Wade was rightly decided, or whether the President has the right during wartime to act in contravention of international treaties outlawing inhumane treatment of prisoners, or to indefinitely detain American citizens and foreign nationals without charges or access to counsel, he has to expect us to infer that he holds unacceptable opinions on those subjects.  Likewise, if the President, who has repeatedly expressed his admiration for Scalia, continues to refuse to turn over Roberts's writings, we will simply have to assume that the withheld documents are damning.

If Democrats' only argument is our own right to know, the focus will be on us and eventually we will be cast as a whining, weak minority.  If the argument is about what the Republicans are hiding, it keeps the focus strongly on them and their unacceptable views.  So say it early and say it often:  What are they trying to hide?

Unsafe in any Office


Everything from the WSJ's contemptible op-ed this morning to Rep. King's blather on MSNBC to Ken Mehlman's panicked talking points shows that the Republican party, in an effort bordering on self-parody, is closing ranks to commend Rove for his "heroic" act of blowing the cover of a CIA operative responsible for gathering intelligence on weapons of mass destruction (and, incidentally, her front organization and probably everyone who ever came into contact with it--that's what's called "collateral damage").  The clamor to lionize Karl Rove was prophetically anticipated on, of all places, last night's Daily Show.  Given that Tenet got a Medal of Freedom and Rice was promoted to Secretary of State, Jon Stewart reasoned, the only satisfactory honor to Rove for his blow to the national security of the United States would be to elevate him to Chief Justice.

The point here is not that Republicans protect their own.  It's that they are eager to reward people for acts that are directly harmful to national security if those acts have the side benefit of hurting the political opposition.  It's a pathological inversion; instead of using their leverage in the political system to formulate national security policy, Republicans are leveraging national security assets to win political skirmishes.  The epitome of this backwardness is a White House that would cripple the CIA's capability to get good intelligence on weapons of mass destruction in order to win the political debate over a war that ostensibly depended on that very intelligence.  (That same White House would rather let a deadly arch-terrorist go than risk its political cover to wage that same war.)

If there is a lesson to be learned from this shameful behavior, it's that Republican governance has only one aim:  to perpetuate and extend Republican political dominance.  And every Democrat in the country should be making this clear over and over and over every chance they get:  Republicans don't care about your safety.  They don't care about your freedom or anyone else's.  They don't care about stopping terrorism.  They care about coming out on top in partisan political squabbles.  They can't be trusted to keep you safe.

O'Connor, Casey, and the Modern Supreme Court


Justice Blackmun's separate opinion criticized the opinion of Chief Justice Rehnquist -- which was joined by Justices White, Scalia and Thomas -- for equating the legal status of "a woman considering whether to terminate a pregnancy" with that of "adulterers, murderers, and so-called sexual deviates."  In a footnote, he cited his dissenting opinion in Bowers v. Hardwick to take a dig at his conservative colleagues, saying: "Obviously, I do not share The CHIEF JUSTICE's views of homosexuality as sexual deviance."  But in the slip opinion of Casey (the early release draft issued to the public before the final official reports are printed) Footnote 11 had read "Obviously, I do not share the majority's views of homosexuality as sexual deviance."  In other words, when Justice Blackmun first drafted his opinion, a majority of the Court had signed on to Chief Justice Rehnquist's opinion that determined Roe should be overruled.  In their haste to issue the decision, whoever was responsible for editing Justice Blackmun's opinion had overlooked one footnote as they made the necessary editorial changes to reflect the shift in the Justices' voting.  The mistake was quickly found and corrected, but it was obvious to all who knew about it that somebody on the Court had switched sides at the last minute.  That somebody is generally believed to be Justice Kennedy.

Reading the opinions of the Justices in Casey, it is easy to see how the original breakdown of the voting influenced the writing of the opinions.  The Blackmun opinion is written almost as a lament for Roe, while the Rehnquist opinion savages Justices O'Connor, Kennedy, and Souter for not even arguing that Roe was rightly decided, relying instead on the doctrine of stare decisis (the principle that a Court should generally adhere to its prior rulings).  Indeed, the O'Connor-Kennedy-Souter opinion, bearing the strong mark of Justice O'Connor's influence, is not ultimately about a woman's right to abortion.  It is about the Supreme Court of the United States.

The key passage from the majority opinion is not the opening proclamation that "Liberty finds no refuge in a jurisprudence of doubt."  Rather, it is the two paragraphs about what Roe means to the Court and the country:

Where, in the performance of its judicial duties, the Court decides a case in such a way as to resolve the sort of intensely divisive controversy reflected in Roe and those rare, comparable cases, its decision has a dimension that the resolution of the normal case does not carry. It is the dimension present whenever the Court's interpretation of the Constitution calls the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution.

The Court is not asked to do this very often, having thus addressed the Nation only twice in our lifetime, in the decisions of Brown [v. Board of Education] and Roe. But when the Court does act in this way, its decision requires an equally rare precedential force to counter the inevitable efforts to overturn it and to thwart its implementation. Some of those efforts may be mere unprincipled emotional reactions; others may proceed from principles worthy of profound respect. But whatever the premises of opposition may be, only the most convincing justification under accepted standards of precedent could suffice to demonstrate that a later decision overruling the first was anything but a surrender to political pressure and an unjustified repudiation of the principle on which the Court staked its authority in the first instance. So to overrule under fire in the absence of the most compelling reason to reexamine a watershed decision would subvert the Court's legitimacy beyond any serious question.

Justice O'Connor and her co-authors were concerned, above all else, for the institutional stature of the Supreme Court.  In this view, the Court could only maintain its institutional prerogatives and prestige if it stood fast against the political passions of the torch-wielding mob of protestors gathered on the courthouse steps (and the demagogues in the Executive and Legislative Branches who inflame and exploit those passions).  Indeed, Justice Stevens was making the same point in his passionate dissent in Bush v. Gore.  For these elder jurists, a Justice's first loyalty must be not to a political ideology or an end result, but to the institutional status of an independent Judiciary in a democratic society.

Today, Justice O'Connor's resignation letter confirms that she took her obligations to the Judicial Branch more seriously than any other calling:

It has been a great privilege, indeed, to have served as a member of the Court for 24 terms.  I will leave it with enormous respect for the integrity of the Court and its role under our constitutional structure.

There will be lots of talk in the coming months about particular issues that the Court may be called on to decide -- abortion rights, school prayer, the death penalty, affirmative action, and so on.  The thing to remember is that there are two aspects to any of these issues.  There is the ideological aspect, which is the only side that the average citizen will generally be concerned with.  Then there is the institutional aspect, which must take into account things like legitimacy, precedent, and enforceability.  With O'Connor as the swing vote on the Court, no matter which way an issue came out ideologically, the Supreme Court nearly always came out on top.  The recent "enemy combatant" detention cases of Hamdi and Padilla are yet another example of the Court defending the institution of the Judiciary, if not the public, against an encroaching Executive, without ultimately making much of an ideological statement.  With the next nominee to the Supreme Court likely to be examined under an ideological microscope, it's important to remember that a Supreme Court Justice has a role to play beyond simply resolving ideological disputes:  she must defend the Judiciary's role in the constitutional framework of three separate, coequal departments of government.  Congress, having fallen under increasingly strict ideological control, is shirking its responsibility in this regard of late, and until very recently the Legislative Branch was accelerating its steady subordination to the Executive under this President.  It's important for all of us to think about the consequences of that trend, and what would happen if a Supreme Court Justice confirmed or rejected on strictly ideological grounds expanded the trend to the Judiciary.

Jeremy

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