One source of insidious unfairness in corporations is that the pay structure ultimately is a protection racket. The CEO decides that everyone under him gets a 5% raise on average. First thing he does is decide that the worker bees will tithe a measly 10% of their raise to his 5 VPs ... the workers now get 4.5% instead of 5% which is not all that noticeable. If the company has a 1000 workers making $50000, they'll get $2250 instead of $2500. The 5 VPs each making $200000 now get an additional $50000 each on top of their 5% nominal raise ($10000) for a total of $60000 or 30%. You can argue that this is "incentive" to work harder, to become a VP and that is generally true when the company is growing and there is upward mobility inside the company (there is more or less a non-zero sum game going on). It takes years for the board to finally take action in most companies when the growth slows but the power structure instantly knows that there isn't going to be enough money for them and everyone else so upward mobility ceases immediately allowing them

Interesting contradiction from two of the sidebar links: Barlett/TNR:

But you probably have not have heard of many of the Obamacons--and neither has the Obama campaign. When I checked with it to ask for a list of prominent conservative supporters, the campaign seemed genuinely unaware that such supporters even existed.

Baxter/Times of London:

The Obama campaign has a sharp-eyed political operations team tasked with seeking out prominent endorsers “on both sides of the aisle”, according to a campaign official.

Stand by for the Obama-haters to leap on this as "further proof" of "inconsistent message."

scted: Good comment. I'd add to your thought to say that there's another, related problem with the instability inherent in disproportionate wealth beyond some tipping point: Money translates into access to power. Once someone becomes really rich, he or she can own politicians, which translates into policy being driven by a very few people -- a de facto oligarchy. It seems to me that this problem can be applied in support of progressive taxation whether one views income disparity as a matter of unfairness or, more pragmatically, as simply harmful for society as a whole. I'd say I'm mostly in agreement with Brink on this point. I don't have a fundamental problem with some people making more money, even a lot more money, whether it's because they're smarter, work harder, took advantages of lucky breaks, are unusually good at something that is highly valued by society, or whatever. But there does come a point where the system can be gamed by the super-rich, to the detriment of almost everybody else.

Quoting bjkeefe: I was going to say that the correct spelling should be Obamacans, from the last four letters of Republicans, but now I see that the suffix arguably comes from conservatives.

Actually, it is spelled incorrectly. It really should be "Obamahican" (as in "the last of the Mahicans"). This latter transliteration is particularly nice by virtue of its dual use in referring to the impending complete disappearance of both of these two categories effective with McCain's January, 2009 inauguration: a) Obamaphiles;
b) Libertarians seeking a brief marriage-of-convenience with same.

So, let's have Brink come back, say, matched with Eric Alterman, and have the focus of the diavlog be on potential sticking points for someone becoming a liberaltarian.

Actually, an Alterman-Brink pairing would be interesting as it would be kind of a nice debate between two categories of relative non-entities forever unsuccessful in meaningfully horning in on the one-party rule being passed back and forth between the Democrat and Republican faces of the American Business Party. (Nice discussion of this and related issues in the streamable or downloadable interview with Chomsky on Media Matters with Bob McChesney: http://will.illinois.edu/mediamatters/. EW

Quoting bjkeefe: I was going to say that the correct spelling should be Obamacans, from the last four letters of Republicans, but now I see that the suffix arguably comes from conservatives.

Obamalitist

Might Brink have a problem with the hedge-fund guy who makes billions by squeezing businesses dry and displacing their employees for a few extra points of short-term profit? Or trial lawyers who make their bundles by venue-shopping and securing outrageous punitive damages? Or corporate interests gaming the political system to reduce or eliminate health and safety regulations or to build cartels and monopolies? Or the CEOs who stack their boards with yes-men and take home mega-salaries while their companies perform poorly? There are a lot of filthy rich people who haven't made their money cleanly. A poorly regulated, crony-capitalist market has rigged the game in their favor, at the expense of people who're working hard to produce something and getting less and less for their efforts. The "free" market has gotten out of whack. Libertarians who don't see that are in denial.

There are a lot of filthy rich people who haven't made their money cleanly. A poorly regulated, crony-capitalist market has rigged the game in their favor, at the expense of people who're working hard to produce something and getting less and less for their efforts.

Campaign finance reform is the key to changing this plutocratic mess on the entry level. On the exit level, we need to close the revolving door between government and big business. WTF is Dick Cheney doing going from the DOD to the board of Halliburton and then back to the vice presidency? Dems. do it too, of course, just as corruptly.

Quoting Eastwest: (Nice discussion of this and related issues in the streamable or downloadable interview with Chomsky on Media Matters with Bob McChesney: http://will.illinois.edu/mediamatters/.EW

Thanks for the link. EW. That's an interesting interview.

Quoting Bokonon: Thanks for the link. EW. That's an interesting interview.

Agreed. How come Chomsky hasn't been on BhTV? I suspect Bob doesn't want to marginalize the enterprise by having on someone outside the mainstream of American political thought. We live in a world where it's OK to have on Goldfarb and Frum and Goldberg and Pinkerton and other rabid conservatives. Advocates of torture and murder and the Bush police state are just fine. They're mainstream. They're acceptable. They don't threaten the integrity of the operation. But Chomsky? Totally unthinkable.

When conservatives like Brink feel compelled to vote for "the most liberal Senator" in the country over the supposed "moderate "war hero," famous for "reaching across the aisle," we should all pay careful attention to the peril of another right-wing victory in in November. I have been hearing from intelligent Republicans for 5 years now how regretful they are about having supported Bush, and how much they are troubled by the war in Iraq, an executive branch of government gone proto-fascistically wild, and the kneejerk support that government receives from the four extremist judges on the Supreme Court. Here's your chance to make a difference, dear Republicans. Repudiate McCain. There is no clearer distinction between the candidates than their respective responses to the SC decision on habeas. McCain emphatically supports Bush-Cheney abuses of constitutional power and wants more Scalias; Obama will protect the country from those kind of justices and that kind of justice. Vote your conscience.

Quoting Wonderment: Campaign finance reform is the key to changing this plutocratic mess on the entry level.

On the exit level, we need to close the revolving door between government and big business.

I'd amend that to "Campaign finance reform is the key to changing this plutocratic mess on the entry level and most especially at the incumbency level..." Having said that, do you honestly think Obama: a) Has it in mind to institute either genuinely meaningful "campaign finance reform" or to "close the revolving door"? b) Supposing he wished to, do you believe there's even an ice cube's chance in the non-intermittent hot hells that he could actually force such changes? EW

Quoting TwinSwords: Agreed.

How come Chomsky hasn't been on BhTV? I suspect Bob doesn't want to marginalize the enterprise by having on someone outside the mainstream of American political thought.

We live in a world where it's OK to have on Goldfarb and Frum and Goldberg and Pinkerton and other rabid conservatives. Advocates of torture and murder and the Bush police state are just fine. They're mainstream. They're acceptable. They don't threaten the integrity of the operation.

But Chomsky? Totally unthinkable.

It is curious that the likely extremists comes from the right "mainstream."
Bob has never detailed the invitation process. We can only go by the offerings, but I doubt that all invitees would accept.
Multiple threads regarding prospective or wishful lineups have come and gone without result it seems.

Quoting graz: Bob has never detailed the invitation process. We can only go by the offerings, but I doubt that all invitees would accept.
Multiple threads regarding prospective or wishful lineups have come and gone without result it seems.

I don't think BW's analysis goes anywhere near as deep as Chomsky's, that he would fear the threat to his business model in bringing on that clear and obvious an indictment of the status quo in any case, and that he prefers the electorate-duping ping-pong game of the Business Party's forever bouncing the mesmerizing little ball of illusory imminent change back-and-forth, back-and-forth between the Republican right hand and the Democrat left hand. Then there's always the laughable gullibility of BW's reflections on the Saudi press-junket trip. Face it: He's in the tank with the status quo. As with Obama, contemplation of actually bringing about genuinely meaningful structural change does not exist in the BW deck of cards. Actually, that's not as severe a critique as it might seem. One could arrive at that stance simply by being a realist. EW

Having said that, do you honestly think Obama:
a) Has it in mind to institute either genuinely meaningful "campaign finance reform" or to "close the revolving door"?

I think he is amenable to progressive legislation, yes. Will CFR be a top priority in his administration? Probably not.

b) Supposing he wished to, do you believe there's even an ice cube's chance in the non-intermittent hot hells that he could actually force such changes

"Force change" is a poor choice of words. I think he can use the bully pulpit to help build the constituencies and begin the right national conversations on expanding democracy by reducing influence peddling, corruption and campaign finance chaos. That agenda-setting in itself is an enormous advance over the idiocy, incompetence and evil of the past eight years.

Quoting Eastwest: I don't think BW's analysis goes anywhere near as deep as Chomsky's, that he would fear the threat to his business model in bringing on that clear and obvious an indictment of the status quo in any case, and that he prefers the electorate-duping ping-pong game of the Business Party's forever bouncing the mesmerizing little ball of illusory imminent change back-and-forth, back-and-forth between the Republican right hand and the Democrat left hand.

Then there's always the laughable gullibility of BW's reflections on the Saudi press-junket trip. Face it: He's in the tank with the status quo. As with Obama, contemplation of actually bringing about genuinely meaningful structural change does not exist in the BW deck of cards.

Actually, that's not as severe a critique as it might seem. One could arrive at that stance simply by being a realist.

EW

I recommend that you take a look at his "meaning of life" series. I don't think that it is at odds with the bhtv model, but the subjects might interest you.
http://meaningoflife.tv/

Quoting graz: Obamalitist

I like it!

Mr. Cohen, Can you not recognize that Justice Scalia is not claiming that the loss of life he predicts is not a legally controlling factor in the case? If you can't recognize this, then you can't read. If you can recognize this, then you can't be honest about why the dissent was dissenting. Similarly, your notion that the dissent wasn't worried about mistakes in detention ignores that it was worried about the principles behind Eisentrager. I guess actually caring about the rule of law is simply beyond you--if it seems like a good idea, it's an idea a judge (a justice) ought to enforce. Except, of course, when you think otherwise. Cheers, T.

...if our enemies are unconventional and plan things over a long period of time (i.e., if they are Al Qaeda, which planned 9/11 for a long time), then you think it can't count as a war, which in your view needs to be tidy? And if separation of powers means something to you, does the vision of judicial supremacy reflected in Anthony Kennedy's opinion for the court not disturb you? Who looks over his shoulder, pray tell. I swear, the simplemindedness of "sophisticated" commentators is breathtaking. Cheers, T.

T. More: Long time no see. Good to have you back.

Quoting Wonderment: Campaign finance reform is the key to changing this plutocratic mess on the entry level.

On the exit level, we need to close the revolving door between government and big business.

I suppose that the Libertarian answer to this is to eliminate government so there is no exit or entrance to worry about. Trying to legislate who goes in and out and how they do so is putting lipstick on the pig and unlikely to get the intended results.

Brink, Please point out what was unchecked about the system provided by Congress for review of detainee treatment in the D.C. Circuit? Please point out how the executive was not challenged by the system in place? In sum, please stop speaking from utter ignorance and platitudes about what was at stake in this case. If the decision was right, it was not right on the grounds you propound. Including, by the way, your notion that the right of habeas was being "preserved" here. Even Justice Kennedy's crazy majority opinion recognizes that what was "preserved" here had never been held to exist before (an odd kind of preservation, that). Thus, you embrace in your commentary here the "airy fairy" stuff you purport to reject. Cheers, T.

BJ, Kind of you to say so. I suspect you won't care for my remarks here; and it's late at night here on the East Coast, so I'm being a bit short. But these two bheads are smart enough to give better than result-oriented commentary on these opinions, let alone to distort what they have read. Bruce at least seems to admit that he hasn't read the decisions, but that doesn't prevent him from getting vapors over the dissents. His Harvard Law School training apparently didn't include an ethical obligation to study the law before opining on it. I think, actually, there is a legal defense of these opinions (that ultimately fails), rooted in the common law nature of the writ. The problem is, if these guys would think about it, this decision gives a bad executive (and anticipating bad executives lies at the heart of the writ) incentive to use that Clinton-initiated, Bush-improved tool of rendition as well to use "black sites" in order to escape the reach of this decision. Will that be better than Gitmo? Hard to see how. But it will make our enlightened liberal commentariat sleep better at night, apparently. Cheers, T.

The problem is, if these guys would think about it, this decision gives a bad executive (and anticipating bad executives lies at the heart of the writ) incentive to use that Clinton-initiated, Bush-improved tool of rendition as well to use "black sites" in order to escape the reach of this decision. Will that be better than Gitmo? Hard to see how. But it will make our enlightened liberal commentariat sleep better at night, apparently.

There is nothing complicated about banning rendition and closing the illegal Guantánamo prison. The Obama administration, if elected, will take a very close look at the use of torture, black sites, enhanced interrogation, rendition and the whole spectrum of human rights violations perpetrated by the Bushies. The fact that Clinton also used rendition in the 90s is not a justification to keep using it. On the contrary, abuses by previous Dem. governments will make a better bi-partisan case for enhanced human rights protections. Again, this controversy is a great example of why McSame means more (and worse) Bushism, while Obama represents an opportunity for change and progress.

Quoting T. More: BJ,

Kind of you to say so. I suspect you won't care for my remarks here; and it's late at night here on the East Coast, so I'm being a bit short.

We often disagree, but I appreciate your thinking and the way you express it.

I think, actually, there is a legal defense of these opinions (that ultimately fails), rooted in the common law nature of the writ. The problem is, if these guys would think about it, this decision gives a bad executive (and anticipating bad executives lies at the heart of the writ) incentive to use that Clinton-initiated, Bush-improved tool of rendition as well to use "black sites" in order to escape the reach of this decision. Will that be better than Gitmo? Hard to see how. But it will make our enlightened liberal commentariat sleep better at night, apparently.

I can't comment on the opinions, since I haven't read them (, either). I will say that the Scalia line in question is reprehensible in any context. Unless he's been grievously misquoted, and not just here, he deserves contempt for that alone. I think Brink or Josh did mention something about closing Gitmo may mean more captives sent to other, even better hidden

Quoting graz: I recommend that you take a look at his "meaning of life" series. I don't think that it is at odds with the bhtv model, but the subjects might interest you.
http://meaningoflife.tv/

Thanks. Actually, I've watched quite a few of those and have found some of them interesting. In my comments here, I wasn't referring to BW's philosophical depth, but rather solely to the depth of his political analysis. The political stances appearing on BHTV through BW's invitations are so ho-hum conventional as to be rather Bush-league (pun unintentional) by comparison to folks like Chomsky, Rami Khoury, etc. who aren't the least bit reticent to call a spade a spade, even at the risk of offending the illusions and delusions of stateside America-first triumphalists and xenophobes. EW

Quoting Wonderment: ....Will CFR be a top priority in his administration? Probably not.

"Force change" is a poor choice of words. I think he can use the bully pulpit to help build the constituencies and begin the right national conversations on expanding democracy by reducing influence peddling, corruption and campaign finance chaos. That agenda-setting in itself is an enormous advance over the idiocy, incompetence and evil of the past eight years.

"Force change" is exactly what will be required. All those things you mention will represent "an enormous advance" if and only if they actually produce rock-solid CFR. Unless Congress is "backed into a corner" through acute and inescapable embarrassment, they'll weasel out of it. Merely polite agenda-setting on the part of the executive branch on CFR is a virtual guarantee of no change, and not even any hope for change. Left to their own devices, Congress will be the last folks to produce anything more than the minimum cosmetic fig-leaf required to distract the electorate. Sort of like trying to sweet-talk a mob of heroin addicts into preferring green tea: ain't gonna happen. Consequence: Politics as usual, politely stewarded by BHO. (Assuming, of course, that he can even get elected.) EW

Quoting Wonderment: ....Obama represents an opportunity for change and progress.

Very interesting. With your "an opportunity for change," and your previous "start the right national conversations," and "reduce influence peddling" and "amenable to progressive legislation" and admission that for Obama, CFR won't be a high priority, I think I may be witnessing "greatly reduced expectations" on the part of Obamaphiles for BHO's capacity to actually accomplish much. Has a little bit of the feel of a "bait-and-switch" or at least a mild "climb-down" from huge implicit promises for change reduced to "well, we'll see what we can do..." At last, certain realities start to impose themselves on the BHO agenda? EW

I think I may be witnessing "greatly reduced expectations" on the part of Obamaphiles for BHO's capacity to actually accomplish much.

I'm not an Obamphile, nor am I a Democrat. I just think McCain is horrific.

Quoting Wonderment: I'm not an Obamphile, nor am I a Democrat. I just think McCain is horrific.

Hard to argue with you on that one. Where'd I get the idea you liked Obama and were a Democrat? Hmmm. Must be early-onset dementia. Sorry. EW

What's McCain say?

WASHINGTON (CNN) -- Former terrorist suspects detained by the United States were tortured, according to medical examinations detailed in a report released Wednesday by a human rights group.

The Massachusetts-based group Physicians for Human Rights reached that conclusion after clinical evaluations of 11 former detainees, who had been held at the Abu Ghraib prison in Iraq, in Guantanamo Bay, Cuba, and in Afghanistan.

The detainees were never charged with crimes.

"We found clear physical and psychological evidence of torture and abuse often causing lasting suffering," said Dr. Allen Keller, a medical evaluator for the study.

The doctors' group said in a 121-page report that it uncovered medical evidence of torture, including beatings, electric shock, sleep deprivation, sexual humiliation, sodomy and scores of other abuses.

The report is prefaced by retired U.S. Major Gen. Antonio Taguba, who led the Army's investigation into the Abu Ghraib prisoner abuse scandal in 2003.

"There is no longer any doubt that the current administration committed war crimes," Taguba states. "The only question is whether those who ordered torture will be held to account...."

Quoting Eastwest: Having said that, do you honestly think Obama:

a) Has it in mind to institute either genuinely meaningful "campaign finance reform" or to "close the revolving door"?

b) Supposing he wished to, do you believe there's even an ice cube's chance in the non-intermittent hot hells that he could actually force such changes?

Do you think Hillary would be any better? I'm not sure whether Obama would bring truly meaningful change, but Hillary is as mainstream as they come, and certainly to the right of Obama. If anybody proved the "one (business) party" critique, it was her husband, Bill Clinton, who in many ways governed like a Republican and was definitely not an advocate for any kind of change, large or small, that would upset corporate interests. For someone who appears to buy into the Chomskian critque of the "one party system" and the "American Business Party" with Democratic and Republican wings, you certainly did invest heavily in Hillary. How do you reconcile that apparent contradiction?

Quoting Eastwest: I don't think BW's analysis goes anywhere near as deep as Chomsky's, that he would fear the threat to his business model in bringing on that clear and obvious an indictment of the status quo in any case, and that he prefers the electorate-duping ping-pong game of the Business Party's forever bouncing the mesmerizing little ball of illusory imminent change back-and-forth, back-and-forth between the Republican right hand and the Democrat left hand.

Then there's always the laughable gullibility of BW's reflections on the Saudi press-junket trip. Face it: He's in the tank with the status quo. As with Obama, contemplation of actually bringing about genuinely meaningful structural change does not exist in the BW deck of cards.

Actually, that's not as severe a critique as it might seem. One could arrive at that stance simply by being a realist.

Bob would jump at the chance to have Chomsky on...not only is his goal to have a national dialogue about interesting ideas, he wants this enterprise to make money. And, yes, I'd say that Bob is the ultimate realist. His view of the current ME is that situations like this are

BJ, I would not defend that portion of Scalia's opinion in particular, though if he believes empirically that it is correct I don't think it's reprehensible. Surely if one thinks that (a) a decision is wrong on the law and (b) it risks American lives, it can't be reprehensible to say both (a) and (b). Arguably, it would be reprehensible not to. That you (and I) are not persuaded that this decision will result in more deaths from terrorism does not make such speculation inappropriate. It becomes more appropriate, where, as here, the court chooses to depart from long settled precedent about something as fundamental as the Great Writ, presumably for practical (that is to say, not strictly speaking 'legal' considerations, though that's a bit simplistic) reasons, to note what might be the practical implications of the decision. That's why I'd have voted with the dissenters, not so much because of the grounds that Justice Scalia cited, but because on Holmes's "bad man" theory of law, I'd have been concerned about what a malign executive would do in response to this decision. I'm not optimistic. Further, I don't disagree, either, that these indefinite detentions are problematic. That is a separate question from whether the decision

Quoting bjkeefe: So, let's have Brink come back, say, matched with Eric Alterman, and have the focus of the diavlog be on potential sticking points for someone becoming a liberaltarian.

A great idea for a diavlog; provided, of course, that the two are in a patient mood and inclined to converse politely rather than alternate lectures. I can imagine it going either well or badly, but not boringly.

Amazing that they just gloss over the giving of US Constitutional rights to non-US citizens to people who do not follow the Geneva Conventions.
But it is a defeat for the Bush administration, so they can ignore that little problem.

This is the big issue for me. The Supreme Court said that the Constitution may apply to U.S. interactions with non-citizens outside U.S. territory, who have never even been in the United States. The Court has never before made such a claim. What does this mean for warfighting, for interdicting people on the high seas, for CIA operations? Are our Cold War intellegience activities retroactively deemed unconstitutional? Are the people who are detained in Iraq or Afghanistan rather than Guantanamo owed a constitutional right to habeas? The Court doesn't say. What it does say is that all these decisions will be decided on a case by case basis, taking into account "practical considerations" (whatever the heck that means) of applying the Constitution in a given instance. Great. Even if you agree with the outcome of this particular case, the means the Court used to reach the decision were absolutely terrible.

Quoting T. More: Even Justice Kennedy's crazy majority opinion recognizes that what was "preserved" here had never been held to exist before (an odd kind of preservation, that). Thus, you embrace in your commentary here the "airy fairy" stuff you purport to reject.

Justice Kennedy, like Brink, has a signficant libertarian streak, and it colors his reading of the Constitution. In other words, neither has a problem with "airy fairy" stuff so long as it promotes personal and economic liberty. As the Lochner era illustrates, "conservative" judges who let their libertarian views influence their decisionmaking can be just as activist as the most "liberal" judge. Regardless of the ideology behind it, judicial activism should be frowned upon as dangerous and undemocratic.

Quoting Wonderment: What's McCain say?

I hope he would say: "I find this to be a bunch of unsubstantiated BS and I do hope it stays that way. I understand that their research involved only 11 prisoners while taking place years after the supposed abuse. You know, I have seen many times in my years where agenda driven studies go in looking for specific problems and SURPRISE SURPRISE, find what they wanted to find..next question..." "Senator, Have you been told about the study done on kidnapped and imprisoned American and Coalition soldiers in Iraq?" "Why no, my friend, but I am glad you brought it up as I think that study would be a rather short one unless you were able to question dismembered corpses...next question"

Wow, some of you got tiresome. The Keefe is like a breath of fresh air in comparison to your angry chomsky-kid posturing.

Quoting TwinSwords: Do you think Hillary would be any better? ....

For someone who appears to buy into the Chomskian critque of the "one party system" and the "American Business Party" with Democratic and Republican wings, you certainly did invest heavily in Hillary.

How do you reconcile that apparent contradiction?

I'd assumed for the purposes of the 2008 election, HRC isn't even any more an operative issue. (i.e. "That was then and this is now.") As to why I figured it would have been smarter to choose Hillary as a candidate, it was because: a) Her chances of actually getting to the White House were far better than BHO's who's chances we should notice are in fact very, very dicey; b) Given structural change is pretty much off the table without mobilizing a high tide of very vocal political insurgents mad as hell about CFR and the revolving door (as with Obama's followers who, as with their leader, apparently don't have that in mind, anyway), I thought (and still think) HRC would actually be more effective in both international relations and domestic economic spheres. (She doesn't have the sort of base that would be all that focused on CFR or the revolving

Quoting threep: Wow, some of you got tiresome. The Keefe is like a breath of fresh air in comparison to your angry chomsky-kid posturing.

I think you've got a long way to go in developing an understanding of how the political world actually works. If you actually pause to contemplate that analysis (shades of which we see in Nader as well), you'll notice it's painfully obvious that it's really quite correct. Now as to what to actually do about it, given the entrenched interests, it's very hard to come up with tenable solutions. EW

I wouldn't bet on the lack of depth of my cynicism.

An interesting point to me in Boumediene is the debate between Scalia and the majority--which Roberts did not really directly inject himself into, though he concurred with Scalia's dissent--on a functional touchstone or a strictly sovereign territorial touchstone for habeas for alien detainees. When I first read Scalia's dissent I was put off by what I took--and still may take --to be his, what Cohen here called, formalism. Which is to say, Guantanamo is not part of the sovereign and territorial United States and, therefore, habeas does not lie for alien detained there. I initially preferred the majority's control based functional analysis. But then I started to wonder. How would one in principle distinguish between Guantanamo on this question and American sites in more foreign places? At least sovereign and territorial is a bright line as is citizenship. I then started to think that these two approaches--functional and formal--are to some extent proxies for the more underlying policy issue of what the executive and military are to decide in time of war or perhaps quasi war and what the judiciary is to decide. The ways in which some of the

Just for a little more on the conservative take on the decision:http://www.commentarymagazine.com/bl...hp/rubin/12201

Boring! Another blogginsheads where both participants agree. If I wanted to know what people think, I can go to their own website. What makes this site great is that people have to defend their views.

Keep in mind, too, that just because one believes that the Constitution does not/should not cover our interactions with persons abroad, it doesn't mean that Congress can't pass a law giving those persons a right to treatment similar to that owed to persons covered by the Constitution. There's nothing to stop Congress from passing a measure that extends a statutory right of habeas to detainees in Guantanamo, Afghanistan, Iraq, and elsewhere, as the situation requires. That approach seems a lot more sensible and manageable to me than the Boumediene majority's "functional approach" to determining where and when the Constitution should apply, where a particular judge's mood on a particular day may determine his assessment of whether the Constitution covers a particular situation. When it comes to legal jurisprudence, bright-line rules are almost always preferable to case-by-case approaches.

The UDHR, signed in 1948, and other international treaties and agreements apply. Particularly the 1976 International Covenant on Civil and Political Rights, signed by the US, and binding all signatory nations. Just to give a taste of what's covered, here are Articles 5-11 from the 1948 document:

* Article 5.

No one shall be subjected to torture or to cruel, inhuman, or degrading treatment or punishment.

* Article 6.

Everyone has the right to recognition everywhere as a person before the law.

* Article 7.

All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.

Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.

* Article 9.

No one shall be subjected to arbitrary arrest, detention or exile.

* Article 10.

Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.

* Article

The Universal Declaration is not a treaty.* It's purely aspirational fluff. As for party obligations under the International Covenant on Civil and Political Rights, here again you are reading a lot more into the text of than is warranted. First, the obligations owed under that agreement were understood by the United States (and most other countries) to apply only with respect to its obligations towards persons within its territory, not foreigners abroad. Further, if you read the text of the Covenant, you'll see that countries are free to limit compliance with many of the treaty's provisions when national security concerns require it. It hardly seems controversial to suggest that suspected terrorists found on the battlefield should be treated differently than a run of the mill criminal suspect found in Sandusky, Ohio. EDIT: I mentioned in an earlier version of this post that the Soviets voted for the Declaration. They actually abstained.

Quoting Whatfur: I hope he would say:

"I find this to be a bunch of unsubstantiated BS and I do hope it stays that way. I understand that their research involved only 11 prisoners while taking place years after the supposed abuse. You know, I have seen many times in my years where agenda driven studies go in looking for specific problems and SURPRISE SURPRISE, find what they wanted to find..next question..."

So If I go into the swamp LOOKING for alligators, and I find one, I really didn't 'cause I only found one and I was looking for it? VERY LOGICAL

Quoting Whatfur: "Senator, Have you been told about the study done on kidnapped and imprisoned American and Coalition soldiers in Iraq?"

"Why no, my friend, but I am glad you brought it up as I think that study would be a rather short one unless you were able to question dismembered corpses...next question"

Thank god they had no WMDs! Why, those people need a cruel dictator just to keep them in line! Who knew?....
I fucking did! because part of my all American heinz 57 family came from eastern Europe to escape the killing and the ethnic squables that had been going on for thousands of years. But wutfer and his gang

Quoting gwlaw99: Boring! Another blogginsheads where both participants agree. If I wanted to know what people think, I can go to their own website. What makes this site great is that people have to defend their views.

I've written it a number of times already: it sure would be nice to have someone on bloggingheads who defends the Bush Administration's legal position. The one time Bob gets a right-leaning lawyer to talk about national security cases, and he gets a libertarian who disagrees with the Administration. Great.

What part of universal don't you understand? What part of "international covenant" don't you understand? What part of "binding?" It's true that these instruments are weak, but they are legal obligations. The US has little standing and credibility to ask other nations to conform to international law obligations if the US itself fails to do so. Despite all the safeguards sought by Bush to grant his gang of war criminals immunity from prosecution, I'll bet that we see one of these guys busted a la Pinochet during foreign travel. Sooner or later a plantiff in a democratic country will get a judge to issue a warrant. Already John Bolton came close to arrest in Europe. It's just a matter of time. I can't wait!

Quoting Thus Spoke Elvis: I've written it a number of times already: it sure would be nice to have someone on bloggingheads who defends the Bush Administration's legal position. The one time Bob gets a right-leaning lawyer to talk about national security cases, and he gets a libertarian who disagrees with the Administration. Great.

A tall order indeed... how 'bout David Iglesias? HE WHAT? never mind.

Quoting Wonderment: What part of universal don't you understand? What part of "international covenant" don't you understand? What part of "binding?"

It's true that these instruments are weak, but they are legal obligations.

No, they aren't, or at least not in the manner you think. The "Universal" Declaration was agreed to by 40 nations. Most or all thought it was fluff and non-binding. In a recent U.S. Supreme Court opinion written by Justice David Souter, the court claimed that "the Declaration does not of its own force impose obligations as a matter of international law." As for the International Covenant on Civil and Political Rights, I already explained that by its own clear language, countries are permitted to deviate from its obligations in cases where national security concerns require it. Additionally, the United States and many other countries have long taken the position that the Covenant was not intended to apply to their interactions with people outside their respective territory -- in fact, the text of the treaty itself says its provisions apply to people "within [a party's] territory and subject to its jurisdiction.” This position has been criticized by human rights groups and by the U.N. Human Rights

Quoting handle: A tall order indeed... how 'bout David Iglesias? HE WHAT? never mind.

He no doubt would have, in a heartbeat, BEFORE he got canned for refusing to subvert the constitution. Is there a legal argument for the cause or effect of the judicial firings that precludes marshal law?

the court claimed that "the Declaration does not of its own force impose obligations as a matter of international law."

Key phrase: "of its own," the point being that the growing compendium of human rights protections in international law is breaking down the wall of resistance created by exceptionalist states like the USA, Israel, China, Saudi Arabia, Iran, etc. The Bush regime set back human rights globally in many ways, leading to a much more dangerous and uncivilized world. Obama can begin to repair this by getting us in the ICC and using the bully pulpit to denounce such travesties as "enhanced interrogation techniques" and by assuring the world that Bush-Cheney human rights abuses will never again be tolerated. If I were an optimist, I'd say that the Bush regime, in a ghoulish and evil way, helped us clarify human rights standards, just as Hitler did during WWII. Bush pushed the envelope so far on torture and executive abuse of power, that even Republican supporters of conservative judges like Scalia and Thomas (Brink) are now getting scared shitless of a creeping fascism.

Quoting Thus Spoke Elvis: I've written it a number of times already: it sure would be nice to have someone on bloggingheads who defends the Bush Administration's legal position.

Maybe you haven't seen the episodes with Eric Posner?

Quoting TwinSwords: Maybe you haven't seen the episodes with Eric Posner?

You mean the episode where he argued that the Bush policies were contrary to law, but that it doesn't matter? Yeah, call me crazy, but I think a legal defense shouldn't begin with the concession that the other side is correct. Look, the most recent case was a 5-4 opinion. It was a close call, and clearly there were legitimate legal arguments to be made on both sides. Read the last two-thirds of Scalia's dissent and tell me that he isn't raising some significant and well-argued points. Unfortunately, we wouldn't know that from the one-sided characterization we're routinely getting on this site.

When it comes to legal jurisprudence, bright-line rules are almost always preferable to case-by-case approaches.

I don't think so. Courts of equity grew out of reaction to the rigidities of the cmoomon law.

Quoting basman: I don't think so. Courts of equity grew out of reaction to the rigidities of the cmoomon law.

That's why I said "almost always." There's a place for the principle of equity and looking at things on a case-by-case basis, but I don't really think that place is in constitutional jurisprudence.

Quoting Wonderment: Key phrase: "of its own," the point being that the growing compendium of human rights protections in international law is breaking down the wall of resistance created by exceptionalist states like the USA, Israel, China, Saudi Arabia, Iran, etc.

The Bush regime set back human rights globally in many ways, leading to a much more dangerous and uncivilized world.

Obama can begin to repair this by getting us in the ICC and using the bully pulpit to denounce such travesties as "enhanced interrogation techniques" and by assuring the world that Bush-Cheney human rights abuses will never again be tolerated.

If I were an optimist, I'd say that the Bush regime, in a ghoulish and evil way, helped us clarify human rights standards, just as Hitler did during WWII.

Bush pushed the envelope so far on torture and executive abuse of power, that even Republican supporters of conservative judges like Scalia and Thomas (Brink) are now getting scared shitless of a creeping fascism.

Wonderment,
Thank you for your articulate and principled defense of human rights and American values. If only there were more like you.

Quoting Thus Spoke Elvis: You mean the episode where he argued that the Bush policies were contrary to law, but that it doesn't matter? Yeah, call me crazy, but I think a legal defense shouldn't begin with the concession that the other side is correct.

Look, the most recent case was a 5-4 opinion. It was a close call, and clearly there were legitimate legal arguments to be made on both sides. Read the last two-thirds of Scalia's dissent and tell me that he isn't raising some significant and well-argued points. Unfortunately, we wouldn't know that from the one-sided characterization we're routinely getting on this site.

I will readily admit: I'm not a legal scholar, and I don't play one in forums. I'm not qualified to interpret law. But I know what my values are, and I find torture, murder, and the permanent detention of innocent people to be abhorrent. I'd like to see the people responsible for these policies put in prison for the rest of their natural lives. I appreciate and respect how well you grasp the details of the legal issues involved, but I can never sign on to a set of doctrines that allow the travesties and abuses which you

Quoting TwinSwords: I'm not a legal scholar.

Furthermore, it doesn't seem to matter much that I'm not. It appears to me that 5 of 9 legal scholars on the Supreme Court agree with me, as well as at least half, and probably much more than half, of the legal scholars throughout the United States. I don't know much about the law, but it clearly doesn't contain anything which automatically resolves these questions in Scalia's favor. In fact, I'm quite sure that if Scalia wanted to, he could construct just as compelling and thoughtful an argument opposing murder, torture, and permanent detention of the innocent as he has in favor of those atrocities. A morally depraved monster can be smart without being right.

Hey fur!
This guy's been over to your house?

Quoting Wonderment: Key phrase: "of its own," the point being that the growing compendium of human rights protections in international law is breaking down the wall of resistance created by exceptionalist states like the USA, Israel, China, Saudi Arabia, Iran, etc.

That last "etc." includes quite a long list of countries. The vast majority of the world provides significantly less human rights protections than the United States, and complies with international human rights agreements to a much lesser degree. The International Covenant of Civil and Political Rights, for example, was signed by almost every country, but few comply with it to the degree the United States does. The fact is, the only region with an arguably better human rights record than the United States over the past two decades is Western Europe -- and that's probably largely because it's left to the United States to take the lead in wartime operations. They may claim to oppose torture, but they don't complain too loudly when we request to fly over their territory while rendering people to secret prisons. The fact is, international human rights norms are mosty illusory; or to the extent they do exist, they're far

Brink's thinking about inequality seems awfully unscientific and unreflective to me.
He argues that he's pretty well off and that his children have about as much opportunity as the children of the very rich, yet he only makes about 5 times what the average laborer makes.
But the happiness research I've been reading about (in Haidt's _Happiness Hypothesis_ and Robert H. Frank's _Luxury Fever_ suggests that increases in wealth increase happiness only up to a point. What's Brink's reason for thinking that that point isn't (in the US) somewhere between himself and those average laborers? Is it obvious that the child of a minimum wage single parent has anywhere near the opportunity that Brink's children have?
Brink may be right that he's not that far off from the opportunity and happiness of those who make thousands of times what he makes, but it hardly follows that the curve remains level all the way down the income scale. Isn't he reasoning a bit like the man who's fallen 100 floors from a 110 storey building, reasoning "well, I'm OK so far..." Brink certainly has a point that the government shouldn't

Quoting TwinSwords: I don't know much about the law, but it clearly doesn't contain anything which automatically resolves these questions in Scalia's favor. In fact, I'm quite sure that if Scalia wanted to, he could construct just as compelling and thoughtful an argument opposing murder, torture, and permanent detention of the innocent as he has in favor of those atrocities.

TwinSwords, if you are in favor of all that is right and good, you might consider not spouting off such calumnies when you are admittedly ignorant of the facts. I speak here of the facts that Justice Scalia has not written anything in favor of atrocities. Quite the opposite, actually. If you were more familiar with his writings you would find that on criminal matters he is often more solicitous of the rights of the accused than Justice Breyer and Justice Kennedy, two more "moderate" justices who often write things that warm your heart. In any event, you will search in vain for any defenses in Justice Scalia's opinions of torture, murder, or indefinite detention of the innocent.

I too am opposed to torture, and to much of the tortured legal reasoning that this administration has

I speak here of the facts that Justice Scalia has not written anything in favor of atrocities. Quite the opposite, actually. If you were more familiar with his writings you would find that on criminal matters he is often more solicitous of the rights of the accused than Justice Breyer and Justice Kennedy, two more "moderate" justices who often write things that warm your heart. In any event, you will search in vain for any defenses in Justice Scalia's opinions of torture, murder, or indefinite detention of the innocent.

False, false and false. Scalia on torture: “Seems to me you have to say, as unlikely as that is, it would be absurd to say that you can’t stick something under the fingernails, smack them in the face,” Scalia responded. “And once you acknowledge that, we’re into a different game. How close does the threat have to be, and how severe can an infliction of pain be?” Scalia refers to sticking something under a detainee's fingernails to extract a confession as "so-called torture."

More on torture:
(Wikipeida Scalia entry)

Scalia does not believe that torture comes under the umbrella of the Eighth Amendment, in that it is not punishment.

In an interview with 60 Minutes in April 2008: "I don't like torture." "Although defining it is going to be a nice trick. But who's in favor of it? Nobody. And we have a law against torture. But if the - everything that is hateful and odious is not covered by some provision of the Constitution," he says.

"If someone's in custody, as in Abu Ghraib, and they are brutalized by a law enforcement person, if you listen to the expression 'cruel and unusual punishment,' doesn't that apply?" 60 Minutes correspondent Lesley Stahl asks.

"No, No," Scalia replies.

"Cruel and unusual punishment?" Stahl asks.

"To the contrary," Scalia says. "Has anybody ever referred to torture as punishment? I don't think so."

"Well, I think if you are in custody, and you have a policeman who's taken you into custody…," Stahl says.

"And you say he's punishing you?" Scalia asks.

"Sure," Stahl replies.

"What's he punishing you for? You punish somebody…," Scalia says.

"Well because he assumes you, one, either committed a crime…or that you know something that he wants to know," Stahl says.

"It's the latter. And when he's hurting you in order

“Mere factual innocence is no reason not to carry out a death sentence properly reached.”

Quoting allbetsareoff: Might Brink have a problem with . . . trial lawyers who make their bundles by venue-shopping and securing outrageous punitive damages? . . .

There are a lot of filthy rich people who haven't made their money cleanly.

Undoubtedly there are, but a lawyer who represents horribly injured plaintiffs against the corporations and health care institutions that injured them are not among them.

Says thus spoke elvis:

...That's why I said "almost always." There's a place for the principle of equity and looking at things on a case-by-case basis, but I don't really think that place is in constitutional jurisprudence...

This is incoherent. The common law looked at cases on a case by case basis to see whether the particular case came within the applicable rule. Equity, originally responsive to the encrustedness of the commonlaw, once it built up a set of rules and principles did the same. The place for the exercise of discretion is where the law says the matter in issue is to be resolved by the exercise of discretion. To underscore what I say you should understand that courts of equity have merged with couts of law in every juridsiction I can think of. Consitiutional analysis is generally so multi factored and complex and so much the rationalization of competing policy preferences and underlying values under the pretexts of those analyses that it is respectfully exceptionally misconceived to speak of bright lines being appropriate for constitutional adjudication.

You have produced nothing from an opinion by Scalia on the topic. I watched his interview on 60 minutes. The question was not whether he was in favor of torture, but whether the 8th Amendment forbids torture--and that's an odd question. Nobody has been invoking the 8th Amendment when it comes to Gitmo, and it would be odd to do so, because the people in Gitmo haven't been sentenced to anything. Has Scalia spoken flippantly in public about torture? Yes. Has written a single judicial opinion advocating any of the things you claim? No, he has not. Nice tries though.

This is incoherent. The common law looked at cases on a case by case basis to see whether the particular case came within the applicable rule. Equity, originally responsive to the encrustedness of the commonlaw, once it built up a set of rules and principles did the same. The place for the exercise of discretion is where the law says the matter in issue is to be resolved by the exercise of discretion. To underscore what I say you should understand that courts of equity have merged with couts of law in every juridsiction I can think of.

Basman: I'm afraid I've missed your point. In your initial reply, you disagreed with my assertion that for purposes of legal jursiprudence (and constitutional jurisprudence, specifically), bright-line rules are almost always better than case-by-case assessments. You mentioned that English courts of equity emerged because of the need to address the problems that resulted from the rigid rules developed under the courts of common law. But in your most recent post, you describe how the courts of equity developed to become increasingly similar to courts of common law, and note that

Wonderment, Do you have a source for the "mere factual innocence" quotation? I see it referred to as something he wrote in Herrera v. Collins, but of course he did not. If you read the opinion, it does not show indifference to the problem of "actual innocence" in the law, but doubts whether the federal courts provide the best procedure for dealing with it (on habeas relief from the states) as opposed to the pardon process. But again, you'd have to, like, read an opinion by Justice Scalia, rather than just repeating tired (but passionately held) cliches about his jurisprudence. After all, it's just so much more fun to imagine he likes the idea of executing innocent persons. People really ought to have some shame about the nonsense they allow themselves to repeat about others without thought or research.

Quoting T. More: You have produced nothing from an opinion by Scalia on the topic. I watched his interview on 60 minutes. The question was not whether he was in favor of torture, but whether the 8th Amendment forbids torture--and that's an odd question. Nobody has been invoking the 8th Amendment when it comes to Gitmo, and it would be odd to do so, because the people in Gitmo haven't been sentenced to anything.

Has Scalia spoken flippantly in public about torture? Yes. Has written a single judicial opinion advocating any of the things you claim? No, he has not.

This is an awfully legalistic defense of Scalia being awfully legalistic, T., which probably shouldn't surprise me, given your name and his nature. This is the sort of thing that made call Scalia reprehensible a while back -- he says these things in public as though he were head of the RNC, not a sitting justice on the Supreme Court. It is patently obvious that he is campaigning for the GOP when he does this sort of thing. I suspect if one of the liberal members of the Court were to opine the way Scalia does, particularly in

To Thus Spoke Elvis: Respectfully, and to try to get back on track: I was trying to make the simple and trite point that as matter of general adjudication “clear bright lines” have a problem of getting rigid and tried to illustrate that point by noting that the rules of equity developed in response to the rigidities of the common law. I then read you to say that you had clarified your original observation by saying “almost always” and that those bright lines are best suited for constitutional adjudication—as opposed to an approach that is sui generis. I disagree even with the premise of that. I tried to suggest that: 1. in time equitable rules—originating in response to the common law—became formal in the sense of a set of known rules; 2. that courts of equity and common law courts have in every jurisdiction of which I am aware in effect merged (in my jurisdiction Ontario section 96(1) of our Courts of Justice Act says “Courts shall administer concurrently all rules of equity and the common law.” ); 3. there are times when the exercise of judicial discretion is called for

BJ, I have no interest, one way or another, in Scalia "the man." I thought we were having a discussion of law and policy. Perhaps he is a scoundrel--what of it? I rather doubtit, given the way things are distorted. For instance, do you think I am wrong about the 60 minutes interview? Is the 8th Amendment usually the approach to discussing torture of detainees? (Hint: No, and that's not a "legalistic" answer. It's usually considered under our international agreements and the 5th Amendment, in my experience.) You would not find me looking to call a justice "activist" because of something they said outside of their official capacity and their real work: writing opinions that have the force of law. This distinction is apparently too "technical" for you, but I really can't see why. If I defend a certain view of the law, I like to restrict the discussion to legal materials. If you want to extend it to extraneous matters like the occasionally intemperate remarks of a Supreme Court justice whom you find to be "reprehensible," you may do so. But then you will be discussing a man and his personality. I have no interest in that discussion. The personal lives and personalities of justices might make

Basman, Correct me if I'm mistaken, but are you Canadian? If so, that might at least partially explain the reasons for our disagreement. The U.S. system has a written Constitution that judges are required to interpret, and, as I understand it, the Canadian Constitution is an amalgamation of statutes and court rulings. I'm not going to argue that one system works better than the other, because I think different types of governance may be more well-suited for different traditions. But that might explain why we disagree on the approach that courts should take in resolving legal issues. I haven't yet read Breyer's book on legal interpretation, but I definitely should. I must admit, however, that I generally dislike Breyer's approach to the law. He often has a way of making issues needlessly complex, and I believe that using seven-part "standards" when assessing something's legal/constitutional validity is an approach that often leads to arbitrary results. I much prefer Scalia's textual approach towards statutory and constitutional interpretation, which generally results in opinions of greater clarity and guidance to government and individuals as to what is constitutional and what isn't. If you haven't read it already, I strongly recommend Scalia's book A Matter of Interpretation, which not only

T. More:

I have no interest, one way or another, in Scalia "the man." I thought we were having a discussion of law and policy.

It's becoming clear that we're starting to argue past each other. You would like this discussion to focus exclusively on Scalia's work product, and I am not interested in having that discussion, so maybe we ought to wrap it up. Before we do, though, I do want to take exception to your attempt to belittle me by accusing me of being unable to make a distinction between his written legal opinions and his public statements, and your attempt to trivialize my view of Scalia as being nothing more than observations on his personality. Believe it or not, I do get the point that you're trying to make, that the only thing that matters is what he does in his official capacity. However, this is your assessment. It is not a fact. It is my assessment that as a prominent and respected figure, what Scalia says outside of the Court matters a great deal. When he tries to duck a discussion of torture by arguing it only in terms of the Eighth Amendment's

BJ, You were commenting on my exchange with Wonderment (and Twinswords) in the most recent exchange, where I had said he's never written anything like he was being accused of writing. Nor has he said what you accuse him of saying--that is, he did not use the 8th Amendment as a dodge, he was asked about the 8th amendment. Should he not have answered? I don't get your point here at all. Leslie Stahl asked him about whether the 8th Amendment prohibited torture (as I recall, haven't watched in a while--but I'm fairly certain she raised the Amendment). You have somehow twisted this into his "ducking" something. Of course, you and wonderment and most on the left never need to be bothered by details such as context, content, or anything else when it comes to Scalia, because you all know enough to know he's reprehensible, and why bother with the facts? I have answered why I think it is not wrong to predict the deaths of Americans from a judicial opinion, so long as it is honest. Do you really disagree? If you were a judge in dissent and you thought that, in addition to being legally wrong, the

Quoting bjkeefe: When he predicts that a decision by the Court will result in more American deaths, he becomes indistinguishable from Karl Rove or any other important political spinmeister -- he's seeking to spread FUD for one reason only: to advance the cause of GOP electoral gains.

I don't mean to hijack the thread, but I don't think this is a fair criticism. In almost any Supreme Court split opinion on a major issue, the dissent will chastize the majority for taking an approach that is not only (in the dissent's opinion) legally wrong, but also will result in disastrous policy effects. Yes, Scalia isn't the only justice to claim that innocent people will die because of the majority's ruling (read some of the death penalty opinions, for example). Scalia's criticism is a valid one. We are at war, and if we erroneously release enemies back into combat, people will likely die as a result. Accepting the truth of this statement doesn't mean that you have to agree with the implications Scalia draws from it. But when I hear supporters of the Boumediene decision claim that it was wrong for Scalia to even raise this

Elvis: I am a Canadian and we have a now constitutionally entrenched Charter of Right and Freedoms brought in under the auspices of our past Prime Minister Trudeau in 1982. So for fundamental rights and liberties we have broadly the same system you do save for a notwithstanding clause that allows provinces to opt out of the Charter’s application for any particular piece of legislation, which I believe has never been done. We obviously don’t have your history and we have different traditions, a different constitutional document and a different national sensibility, but I know know that our Charter jurisprudence looks a lot to American precedent. So while I would like to find easy ways of resolving our different outlooks here, me being a Canadian won’t do it. Now is not the time to get into a wholesale discussion of Scalia’s originalism, but I’d comment that it has the seeds for just as much *flexibility* as any other approach to constitutional adjudication and as I understand it there has formed in America a counter weight by liberal minded advocates who argue history back at Scalia in

Has Scalia spoken flippantly in public about torture? Yes. Has written a single judicial opinion advocating any of the things you claim? No, he has not.

Worse! He has indicated how he would rule to the world in an attempt to shamelessly shape public opinion on an issue likely to face the court. He pulled the same "Judicial activist" dirty trick in Hamdan v. Rumsfeld: Wikipedia:

While the case was pending before the court, Scalia answered a question during a Q&A session at the University of Fribourg in Switzerland, where he rejected in principle that detainees at Guantanamo Bay have the right to be tried in civil courts. Having noted that the Constitution applies to Americans the world over and to all persons in the United States, Scalia explicitly rejected the notion that the Constitution protects non-Americans outside of the United States, and added:

"War is war, and it has never been the case that when you captured a combatant you have to give them a jury trial in your civil courts. Give me a break. If he was captured by my [America's] army on a battlefield, that is where he belongs.

Also of

The "International Convention on Torture and other Cruel, Inhuman and Degrading Treatment or Punishment" (ratified by US in 19994) provides the definition of torture which is more than enough to prosecute the Bushies for crimes against humanity. Travel to nations interested in universal jurisdiction not recommended. The language of "cruel and degrading treatment OR punishment" is actually a 21st improvement on the US Constitution's "cruel and unusual punishment," in that it anticipates both the ambiguity of "unusual" and refutes Scalia's weaseling in his TV interview about how it can't be "punishment" because there was no trial or sentence. Article 3 also bans "rendition," by the way.

Wonderment, First, once Scalia had announced his views on these matters in Hamdan (and Rasul), he was free to opine on them in public without need for future recusal, under the normal standards of court practice for justices you like and those for whom you have such contempt. Second, Leslie Stahl asked about the 8th Amendment, not about any other law, and not about torture generally. Nor, under the principle he should not prejudge cases, should the justice have given a roving lecture on how the question ought to be posed. I fail to see how the answer (which I grant was overly argumentative and too narrow) was a "dodge" or an attempt to deny the existence of treaties on torture. Third, I take it you are admitting the fradulent origin of your "quotation" about "mere innocence"? Fourth, have you yet found a single scrap of a Scalia opinion that supports your claims about his support for torture (which, of course, the Leslie Stahl interview does not support, whatever else it might demonstrate)?

oh, and Fifth, when once Scalia did violate the "prejudgment" rule, he also recused himself from the case. It was the California pledge of allegiance case.

The quote from Scalia is cited widely but unsourced, so I concede it is mangled and retract it. The point, however, is valid. Scalia (and a concurring Clarence Thomas) wrote in Herrera:

We granted certiorari on the question whether it violates due process or constitutes cruel and unusual punishment for a State to execute a person who, having been convicted of murder after a full and fair trial, later alleges that newly discovered evidence shows him to be "actually innocent." I would have preferred to decide that question, particularly since, as the Court's discussion shows, it is perfectly clear what the answer is: There is no basis in text, tradition, or even in contemporary practice (if that were enough), for finding in the Constitution a right to demand judicial consideration of newly discovered evidence of innocence brought forward after conviction. In saying that such a right exists, the dissenters apply nothing but their personal opinions to invalidate the rules of more than two thirds of the States, and a Federal Rule of Criminal Procedure for which this Court itself is responsible. If the system that has been in place for 200 years (and remains

I see you have ignored my references to The "International Convention on Torture and other Cruel, Inhuman and Degrading Treatment or Punishment" which, I repeat, provides a binding definition of torture that includes "enhanced interrogation techniques" as well as "extraordinary rendition."

Wonderment, I have not ignored anything you've written, quite to the contrary. I referenced above both our treaty obligations and the 5th amendment as the sources of the illegality of torture. I don't know what point you are trying to make--I have also made clear my opposition to torture. You fundamentally misunderstand, either willfully or not, the Herrera case. Scalia was not saying that new evidence is something "we" in a generic sense ought to ignore. He said, and it was and is true, that a new trial based on "new evidence" is not a Constitutional right for a state prisoner appealing his conviction to the federal courts. You seem to have no appreciation of what the case was about, and no interest. Indeed, your last post has only upped the ante in your desire to let emotion and insult substitue for fact, reason, and logic, with its hamfisted references to the death penalty cases, about which you also seem to think the job of the Supreme Court is just to say "I want mentally retarded people executed" or "I'm opposed to executing mentally retarded people." I have no further time for such empty and disingenuous exchange, and less patience.

T. More:

You were commenting on my exchange with Wonderment (and Twinswords) in the most recent exchange, where I had said he's never written anything like he was being accused of writing.

Yes. I apologize for mixing my response to what you and I were discussing earlier into this thread. I couldn't find (didn't want to put the effort into finding) our other one. Please pardon my ADD.

I'll let you have the last word to answer why you think a judge who honestly (if mistakenly--I've already said I'm not persuaded by Scalia on the point) thinks lives are at stake in an opinion shouldn't say so.

As you acknowledge, the lack of certainty is part of it. He has no way of knowing this. This is not like, say, letting a polluter get away with something where one can be sure that more deaths will result, but we've judged additional restrictions on the polluter to be too onerous. There is a case to be made that continuing our treatment of the prisoners at Guantanamo as before may, in fact, cost more lives -- the place has become a powerful symbol around the world for America's

Scalia was not saying that new evidence is something "we" in a generic sense ought to ignore. He said, and it was and is true, that a new trial based on "new evidence" is not a Constitutional right for a state prisoner appealing his conviction to the federal courts.

Same thing. The prisoner demonstrates his innocence and has no judicial recourse but to go get executed. (Good luck on that pardon.) Of course, Scalia doesn't really believe this is a remotely humane or rational consequence. He's just a prisoner of his own extremist ideology.

I have no further time for such empty and disingenuous exchange, and less patience.

Whatever. Bye-bye.

I will correct yet another error. The prisoner has whatever relief is afforded him by the state court system, my friend, in addition to the pardon process (and yes, people with DNA evidence have had pretty good luck with pardons). The question addressed in Herrera is whether the Constitution (which doesn't even require the lower federal courts, just the U.S. Supreme Court) grants a right to federal habeas review for "actual innocence." It does not. The court has made a narrow exception, in Schlup, to permit such review as a statutory matter. But you may content yourself with your errors as they support your sense of your own moral superiority. Apparently "honesty" and "inquiry" aren't part of all that...just sloppy self-assured presumption and cheap equivalences.

Hey Bloggin' Noggin', Brink's point comparing himself to the hedge fund manager was in response to Josh's arguments that income equality has grown immensely the last however many years, and that this is a problem. I've been somewhat skeptical of Josh's line of argument--a pretty common liberal refrain--because the metrics that determine inequality don't distinguish between two different types of inequality: hedge fund guy vs. Brink and hedge fund guy vs. actually poor person. The dollar discrepancy in each case is moreless the same, but the first type of inequality--super wealthy versus middle class--occurs with much greater frequency, since most Americans are not all that poor. Steven Levitt links here to a paper that challenges the very idea that inequality has grown. Regardless of whether this particular argument holds up, there needs to be a metric that discludes the difference in salary between Brink and the hedge fund guy, assuming you accept that such inequalty is not a problem.

If you could take money from the wealthy while still leaving them in the same status positions relative to each other and use the money to

If your sole argument for a supposed indifference to obscene wealth lies in deference to the hard-working individuals who have made a contribution to society, whether it be of a material or metaphysical nature, then I assume you'd favor a substantial increase in the Estate Tax. I believe there's a total lack of respect for what it actually means to be poor here. Imbuing your financial state with a sense of modesty by making the contrast between yourself and someone a thousand times richer, (who must be a millionaire a hundred times over) is a laughable analogy to draw and raises some serious questions about your understanding of the legacy of poverty in the U.S. and abroad. Of course, you'll never have an understanding of it, because you really don't have to live outside the cocoon that your money provides you. It's been said here already but it bears repeating, wealth equals power. You have a total misconception about the poor thinking they're the victims of society. Most poor people are hard-working, prideful people who manage to house and feed themselves and their families, but have means for

Quoting TwinSwords: Agreed.

How come Chomsky hasn't been on BhTV? I suspect Bob doesn't want to marginalize the enterprise by having on someone outside the mainstream of American political thought.

We live in a world where it's OK to have on Goldfarb and Frum and Goldberg and Pinkerton and other rabid conservatives. Advocates of torture and murder and the Bush police state are just fine. They're mainstream. They're acceptable. They don't threaten the integrity of the operation.

But Chomsky? Totally unthinkable.

You could be right about this, but I think it would be tough to book Chomsky, even if BhTV wanted to. I would love to see it, though. Definitely represents views that are outside of the realm of acceptable mainstream political discourse within the US (though well within the mainstream among most non-US audiences). I don't think it's entirely fair to dismiss Bhtv entirely, though, and, if it WERE possible, I wouldn't put it past them to have Chomsky on for a session.

Quoting pod2: You could be right about this, but I think it would be tough to book Chomsky, even if BhTV wanted to. I would love to see it, though. Definitely represents views that are outside of the realm of acceptable mainstream political discourse within the US (though well within the mainstream among most non-US audiences).

I don't think it's entirely fair to dismiss Bhtv entirely, though, and, if it WERE possible, I wouldn't put it past them to have Chomsky on for a session.

Oh, I didn't mean to dismiss BHTV. I treasure this site, and greatly admire Bob Wright. I think this is one of the brightest spots on the media landscape. It's also one of the very few places you can hear liberal voices expressing their views in full. As for Chomsky, I think he's a fairly easy "get." He seems to agree to do an interview with every small town radio station or little college newspaper that asks him. I think he's willing to talk to practically anyone. And I have almost no doubt that if Bob called him and asked for an hour of his time, he would immediately agree. I think the problem may be that Bob is afraid Chomsky would undermine Bob's (and

Thank you Brink for the excellent thoughts on the courts and the Right's use of "Killing Americans" to opt out of real discussions. I wish more GOP members had your level of open-mindedness to discussing (and really considering) points of view that differ from your own. And I'm not just saying that because of the accolades you bestowed upon us BHTV commenters.

http://bloggingheads.tv/diavlogs/120...7&out=00:32:24

And speaking of setting the record straight, Jon Stewart had two guests this past week, both journalists, both of whom have been in Iraq and/or Afghanistan for years now. Once again, it amazes me how much more information comes from a purported fake news show than most other sources. Sorry I can't figure out how to link to just the interview segments, but here are the links to the whole shows: Richard Engel and Lara Logan. If you use the slider at the bottom of display (that appears when you let your mouse hover over the video), you can jump to them if you don't want to watch the whole show. They're both the long segment toward the end of the show.

Well, hello, Ben! Long-time, no see. Good to see you back here. I certainly share your concern that redistributive schemes should not undermine themselves by encouraging the rich to shelter their money or by discouraging entrepreneurship. Josh, as a good Rawlsian, ought to admit that concern. At the same time, the degree to which the rich will look out for themselves at the expense of society will depend a to some degree on social norms -- whether the rich feel that their wealth is entirely due to their own private efforts, or whether they recognize the degree to which the institutions to which their taxes contribute are partly responsible for their own good fortune. I'm certainly not as disturbed by the inequality between Brink and the hedge fund manager as the inequality between Brink and the minimum wage earner. In fact, if we can assume that the hedge fund manager's extra millions simply buy him a little bit of extra comfort and don't carry any further social costs, I'm not worried at all. However, I'm not sure that that assumption is accurate. Here are a few concerns:
1. Vast inequalities of wealth might

Yeah, I've been pretty busy. Still able to watch 75% of diavlogs but I can't really engage in marathon discussions like that one time. We're pretty close to consensus right now. We both think that inequality insofar as it means extreme poverty is really bad, and inequality between the wealthy and the sickly wealthy is also not good, but a relatively small problem compared to the first. Furthermore we agree that policies designed to address each of these issues need to be scrutinized pretty carefully. This bodes well for efforts to find a liberaltarian compromise on tax and spending policy, potentially a tricky issue, as seen in the diavlog. For this to happen, two things need to happen: liberals need to adjust poverty-prevention strategies so as to respect markets where possible and libertarians need to decide that they're not actually conservatives and really do care about alleviating poverty. There are individual liberals and libertarians who are prepared to do this, but as a whole, both these changes would require a pretty major change in thinking for a lot of people. One further observation: it seems like liberals tend to be

I'm having some trouble keeping up with watching the diavlogs myself. Now and then I actually let one slide.
On the issue of tax policy, Robert Frank favors a luxury tax. I don't know all the details, not having finished the book. I take it that he imagines imposing this on top of something like the current income tax system, as opposed to converting everything over to a consumption or VAT tax.
To me that sounds reasonable -- it's pretty hard to imagine redesigning the whole tax system. It's hard to imagine coming up with the political momentum needed to get that done. If the top income tax rate is kept somewhere around current (fairly low) levels, the addition of a luxury tax on top strikes me as a good potential compromise between liberals and conservatives. If it works out really well, it could even be a test-case for a total overhaul of the tax system.