Afghanistan, Iraq

Proponents of the "surge" in Iraq have been touting the decline in violence there as a vindication of their position and have been demanding an apology of sorts from opponents of the "surge" and the Iraq War in general.

This myopic line of thought misunderstands the opposition to the Iraq War. Last month, casualties in Afghanistan actually outnumbered those in Iraq for the first time, yet there's no groundswell of support for a withdrawal from Afghanistan comparable to that for Iraq. While combat deaths are an important factor, they're not determinative. Rather, the question is whether the war makes any strategic sense. The Iraq War makes the US less safe. Keeping the Taliban at bay in Afghanistan is pretty important to US security, as past experience has shown.

The Left needs to chill out, again

A brief perusal of Fox News or right-wing blogs will reveal little about where Barack Obama stands on issues, but a ton of stuff about flag pins, the time that Michelle Obama loved her country, and "bitterness" and "clinging." It seems to me that, rather than debate the substance of getting tough with Pakistan, or national health insurance, or cap-and-trade systems, or progressive taxation, or continuing a pointless distraction of a war, or regulation of investment banks, Republicans prefer to keep the debate on non-substantive questions and stupid micro-controversies.

Conversely, it's to the advantage of Obama in particular and Democrats in general if we keep the conversation focused on the substantive choices before the electorate this November, and stay on the offensive on those issues.

In this light, I find it somewhat baffling that so many voices in the left blogosphere are mad at Obama for refusing to get himself enmeshed in a dumb controversy over Wesley Clark's poorly-worded remarks about John McCain's military service. I'm no political consultant, but the idea that Obama should devote finite energy and media attention to parsing an accused attack on John McCain's military record strikes me as insane, and just the kind of distraction from the substantive issues at hand that's the desired terrain of Obama's opponents.

Wetlands can come in handy

A couple of years ago, the conservative judicially-active Supreme Court saw fit to second-guess the US Army Corps of Engineers on the question of what constitutes a wetland. The biblical flooding the Midwest has been enduring as of late underscores how this question is not frivolous. According to this informative segment from last night's Jim Lehrer Newshour, heavy snowfall this winter in the mountains that feed into the Mississippi swelled it, made all the worse by heavy spring rains. This water needs to go somewhere, and when property development adversely affects wetlands, an outlet for the water is taken away.

I don't mean to put all of the blame on the people who challenge wetlands protection. A lack of coordination of levees up and down the river (such that a really good levee in one place pushes the water above the levees in another place) seems to be at least part of the problem. Rather, my point is that we're talking about deadly serious issues here, and my preference is for the US Army Corps of Engineers to exercise their expertise without starry-eyed extremist property-rights enthusiasts making their job more difficult.

The left should chill out over FISA

The House passed a bill on Friday that re-authorizes FISA, the Foreign Intelligence Surveillance Act, effectively ratifying the spying program illegally initiated under the Bush administration. In particular, the Act allows the National Security Agency to scan huge numbers of phone calls and emails without a warrant for patterns that fit a profile, and then survey a particular target with a warrant if the target is an American. The Act also immunizes telecommunications companies from civil liability for participating in the illegal spying program.

While Barack Obama opposes the latter, he appears to have endorsed the former, causing fits in the left blogosphere, including lots of threats to refrain from supporting him in November (the comment thread to this post on Carpetbagger, which I also commented on, has a lot of examples).

Of all of the issues out there these days, I haven't figured out why this one in particular has aroused the netroots to the extent that it has. A couple of explanations are here and here, but they leave me unconvinced.

Totemic invocations of the Constitution are a good part of the explanation. But the text of the Fourth Amendment doesn't actually require warrants for searches, it merely requires that warrants be supported by an allegation of probable cause, without which the person who searches someone's home could be liable for damages in trespass. While it's true that jurisprudence since the drafting of the Constitution has taken this provision and interpreted it to require a warrant, this is an interpretation, and as such not so clear-cut as to proscribe the kind of data-mining provided for in the bill. The real protection the Fourth Amendment offers is against "unreasonable" searches and seizures, a weaselly enough term to render melodramatic pronouncements of the shredding of the Constitution.

The fact that the Bush administration disregarded the prior FISA law in setting up the original spy program is a particular touchstone of anger. But this amounts to a curiously selective ground for outrage. The most offensive things to me that Bush has done (appointing Sam Alito to the Supreme Court, pushing preposterous tax cuts, and, oh yeah, that stupid war come to mind) are all legal (insofar as Congress' resolution in support of the Iraq War made it so). Concentrating your anger on the points of things Bush may have done that are illegal confuses the true purposes of political objections to elected officials. It's about the policies, not their compliance with statutes!

And the opposition to immunity for telecommunications companies has never struck me as particularly coherent. On the one hand, I have heard that it would set a bad precedent, that private parties should not be violating the law just because the government asks them to (and, indeed, Qwest refused the administration's requests for assistance in eavesdropping). But this begs the question about what kind of civil liability companies would likely sustain if in fact they went along with the administration's violation of the law. What damages could a plaintiff really show? Upon hearing this question, the opponents of retroactive liability contradict the earlier position about rewarding illegal behavior and say that the real reason for the lawsuits isn't to draw blood from the telcoms but to find out information about how the Bush administration went about this illegal spying plan.

I don't think that retroactive immunity is such a necessary thing, but I don't find this reason compelling either. Maybe it's the fact that I'm a litigator, but I think that a lawsuit that's not brought for the relief the lawsuit ostensibly seeks but rather to embark on a fishing expedition for information is dubious at best and abusive at worst. If the goal is to get information, there are more direct and better ways to do so, and maybe they should have been included in the legislation that just passed.

Be that as it may, I think that the response of the netroots to Obama's lukewarm support for this bill is disproportionate to misplaced. (Lest anyone think that this is because I'm blinded by support for Obama, I'm happy to be critical of him when I think it's appropriate, and I've had these views about the surveillance issue for a long time now).

Obama forgoes public financing

To be fair, if a Republican agreed to take public financing and opted out when it became advantageous for him, I'd probably rag on him for it, so I guess I gotta tsk-tsk at Obama for opting out of public financing. There are a few factors, though, that mitigate whatever disapproval I would have:

1. The problem with private-financed campaigns is the danger that they amount to legal bribery. That's not really a problem given Obama's small-donor base;

2. If Obama and McCain had both taken public financing, McCain could have also availed himself of $19 million of the $54 million that the RNC has on hand. By contrast, the DNC only has $4 million on hand.

3. John Kerry took public financing in 2004 and got slammed by 527 groups like the Swift Boaters and wasn't in as good a position to respond because of it.

Our buddy Pakistan

New, disturbing evidence has emerged that A.Q. Khan, the man responsible for making Pakistan a nuclear-armed nation, has distributed blueprints for a small, terrorist-friendly nuclear weapon, possibly to terrorists. Does Pakistan's government see a problem? Why would they? (Keep in mind that Khan is really popular in Pakistan).

This happens about the same time that Afghan president Karzai expressed frustration that Taliban allies get a safe haven in Pakistan. What an ally, huh? It all makes me so glad that millions of our tax dollars have been sent to Pakistan with no strings attached.

New Pakistan policy, please.

Guess who's appeasing now

Guess what country is engaging with Syria, Hezbollah, and Hamas? Extra points for those who don't look at the label.

When I like judicial activism

It's hard to be a principled opponent of judicial activism when confronted with a statute as bad as the one Congress passed that the Supreme Court ruled yesterday violated the constitutional protection of habeas corpus. I'm just going to have to cheer for this decision with my heart while I tut-tut about it with my head.