Home Front - A Reflection on Just War Theory

[via Volokh Conspiracy] William Saletan at Slate writes:

If you're an anti-war protester or politician, this theory of warfare should change the way you think and act. Your efforts to generate resistance to the war before there is any evidence of killing, much less atrocities, contribute to the political strength of the enemy regime. You encourage uncertainty about the war's outcome, increasing the likelihood that the regime's soldiers will fight and die. You make it more difficult to separate the regime from its people. You frustrate the tipping and bring on the crushing.
If you want to minimize the killing, stop resisting the war. Instead, do what you can to make the war transparent and to hold your government accountable for unnecessary deaths. Help the media and human rights organizations monitor the battlefield. Help them get reports and pictures to the people of your country and the world. Build an incentive system that will strengthen your government's will to spare lives. Its ability will do the rest.

Good advice. Actually, that has been the point of the anti-pro-Saddam folk for months. The French and American demonstrators have increased the likelihood of war, increased the likelihood of American and Iraqi deaths and decreased the possibility of a peaceful, diplomatic solution to Saddam’s non-compliance with UN mandates, to which the United States was a “third party beneficiary” since its accession to a cease-fire in 1991 was conditioned on those resolutions. History teaches repeatedly that dictators view the West as weak and divided. The Oxford Union resolution that those students should not fight for their country was cited by Hitler as support for his gambles in the Sudetenland. Is there any reason to believe that Saddam wouldn’t likewise cling to the demonstrations and France’s self-interested obstructionism as a basis for his refusal to accept the option of exile?

Which raises the question, why doesn’t Just War Theory apply to those who would create civil disturbances in the name of peace? How would they fare if it did? Cribbing the elements from Mark Byron here’s how it might look:

Is this a Just Cause? My initial reaction is affirmative. Peace is generally just. On further thought, though, I have to wonder. Peace is not summa bonum. As St. Augustine observed, even robber bands desire peace so as to plunder others. Peace is not a good without justice. I am willing to give the demonstrators a slight nod on this element, but it is nowhere as clear as they might believe.

Is there a competent authority? It’s tough to apply this one to a dissident faction. Doesn’t democracy and the current fashion of sanctifying “dissent” qua dissent serve as sufficient authority for opposition to war. Perhaps, but we’re looking at this from a moral standpoint. In a democracy, there is a moral duty to give due weight to the judgment of those who represent the majority. Since the dissent’s duty is to convince the majority to join the dissent, I don’t think that individual conscience can legitimately satisfy the element of “competent authority.” Further, the purpose of this element is to make sure that conflict is prosecuted by those in authority so that the conflict can be controlled and limited. Perhaps the focus here needs to be on whether there is some “competent authority” who can control the excesses of the war. Here, then, we would look to established authorities - religious leaders or public officials - and we find Stalinist front groups. That’s more than McCarthyite smearing. Do we expect the Stalinists to serve the function of channeling dissent into forms which respect the legitimate rights of other citizens? This element may incline negative.

Is there the right intention? Surprisingly, this one is not that clear either. If the intent is to promote peace, then the answer is yes. But what if the intent is to oppose Bush or capitalism? The canard that the enemy of my enemy is my friend is not a moral proposition. This one is unproven.

Is war the last resort? I would rephrase this as “is direct, lawless action the last resort?” In a democracy, the answer ought to be a presumptive “no.” In the present case where there is substantial representation of the interests of the demonstrators, the answer is clearly “no.”

Is there relative justice? America v. Baathist Iran. An administration that was elected by rules that were agreed upon before the election (and God bless the electoral college) v. reactionaries who refuse to accept the outcome of any process they don’t win. Opposition to a regime that commits atrocities or implicit support for that regime. The answer should be clear.

Is there proportionality? Heck, I don’t know; it's only irrelevant protest. Actually, when you consider the social effect as indicated by The Volokh Conspiracy the San Francisco demonstrators have imposed a real world liability on the people of the state of California. There is also the more intangible violence done to a system which requires that citizens trust their fellow citizens to respect the system and to accept judgments that go against them. Intemperate language and actions may not be proportional

Is there a reasonable hope of success? None whatsoever. The results, in fact, will be to the contrary. Even ultra-gauchist Eric Alterman was forced to admit that the Vietnam protests solidified support for the war.

Thus, although the demonstrators like to assume a higher moral ground - and are often conceded that territory - it is not clear that their position - when coupled with disproportionate language or behavior- meets a test for judging the morality of war and peace. Saletan’s advice, therefore, looks like a counsel of both prudence and morality.

Entire Division of Iraqi Army Surrenders (washingtonpost.com) An entire division of the Iraqi army, numbering 8,000 soldiers, surrendered to coalition forces in southern Iraq Friday, Pentagon officials said.
Iraq's 51st Infantry Division surrendered as coalition forces advanced toward Basra, Iraq's second largest city. The mechanized division had about 200 tanks before the war, according to independent analysts and U.S. officials.
The 51st was one of the better equipped and trained in Iraq's regular army forces and was the key division protecting Basra, a major transportation and oil shipment hub on the Shatt al-Arab waterway that leads to the Persian Gulf.

Kevin Sites Blog

Anna blogs on "Opeation Lee Greenwood." Right on.

The Commander of the 51st Iraqi Division has surrendered.

Fog of War

Kyle Still Free Press links to two articles - one of which reports that that was Saddam on the tape and the other claims an eyewitness saw Saddam on a gurney after Thursday's decapitation strike.

Bill Cork shares this autobiographical detail:

Having been a chaplain with an armor battalion, I have lots of color commentary of my own to provide to the small audience in the living room. But my 13-year-old son keeps saying, "Sshhh!"

Well lay it on us, Bill. That kind of experience has to make the whole thing more understandable than what we get on the tube.

I was second-chairing a federal jury trial back in January of 1991 on the day the airwar in Gulf War 1 started. I remember going through the line of idiots with their candles in front of the federal building. It's almost laughable to think of the non-existent security that was in place back then. Our clients were Burt Rutan and his company Scaled Composites and the case involved the development and testing of ultralight aircrafts per Milspec 86391. Having the commentary of former Vietnam fighter pilot Dick Rutan was way more informative than CNN.

$26 Billion is probably starting to look pretty good

According to this MSNBC article

POWELL CHIDES TURKS
Meanwhile, Secretary of State Colin Powell chided Turkey for delaying the opening of its airspace to U.S. warplanes.
The Turkish government is demanding that the United States agree to let it move troops into northern Iraq in return for using its airspace.
But Powell said, “We don’t see any need for any Turkish incursions into northern Iraq.”

Is Culture Destiny?

USS Clueless has a typically insightful essay on the achilles heal of the Irqi military, its tight command and control structure. Penner gave me the article that Den Beste cites - de Atkine | Why Arabs Lose Wars - which may have been a prescient forecast of GW, 2d ed. Here's a den Beste observation based on de Atkine which is mind-blowing:

What the Arabs do is to pull authority up as far as possible. As he points out, American trainers working with the Arabs concluded that a Sergeant First Class in the US Army has as much authority as a Colonel in an Arab army.

Decisions are highly centralized, made at a very high level and rarely delegated. Rarely does an officer make a critical decision on his own; instead, he prefers the safe course of being identified as industrious, intelligent, loyal — and compliant. Bringing attention to oneself as an innovator or someone prone to making unilateral decisions is a recipe for trouble. As in civilian life, conforming is the overwhelming societal norm; the nail that stands up gets hammered down. Decisions are made and delivered from on high, with very little lateral communication. Orders and information flow from top to bottom; they are not to be reinterpreted, amended, or modified in any way.

AndrewSullivan cites James Lileks on NPRs obvious bias - playing funereal dirges during its war reports, sneering at the American "failure" to extirpate Saddam, future "failures" emanating from that "failure," etc. This is one of those "reality check" moments. Coming into work, I thought it was odd to hear so much of NPRs war coverage consist of man on the streets interviews with anti-American Arabs. I also learned quite alot about the Egyptian riots and the response of the Egyptian police. Didn't hear anything about pro-American attitudes in Iran or southern Iraq, though. Had to get that from Fox News.

Fog of War

DRUDGE REPORT 2003® feeds the rumour that Saddam was "neutralized" the first night.

The NPR host sounded dissappointed last night when the professor of international law it had as a guest gave her opinion that Bush had clear legal authority under international law to invade Iraq under the original resolution - 1441 was a "sideshow." I've been looking for the transcript, which I haven't found. The interview was striking because of the professor's matter of fact statement that the Gulf War, Round 2, is obviously authorized under the original cease-fire resolution. Here is an article noting that Bush invoked the UN Charter in his explanation for military action.

Country Store has a fairly eclectic approach to war-blogging. Check it out.

USS Clueless has good advice about the fog of war. Nonetheless, I want my rumours.

Martial Theology

Bill Cork posts the response of Archbishop O'Brien, who, incidentally, heads the diocese where I was baptized - the Archdiocese for the Military Service (which I learned when I spent a day working my way through the layers of military bureaucracy, trying to get my baptismal certificate so that I could get married. Eventually, I ended up speaking with someone who said he was something like the "secretary of defense", albeit maybe he was only a secretary to someone who worked in the Pentagon. Very confusing, although that person put me onto some church in Virginia where the records were kept.)

Archbishop O'Brien summarily rejects Bishop Botean's letter.

By the way, has there ever been a prior occasion when the Roman Catholic church, or an individual bishop, has issued a declaration like that of Bishop Botean's? For example, I don't know that any such pronouncement was issued against the Wermacht during World War II, and I doubt that there would have been. My rough historical sense is that since at least the Middle Ages the Church has refused to take sides in wars. [I can think of the Albigensian Crusade and William's invasion of England as two noteworthy counter-example, but they were a long time ago. Maybe something was done against Garibaldi?]

If I'm wrong, educate me.

Fresh Speculation

Uday was in the bunker. Also, according to Rush Limbaugh, Tariq Aziz may have led American Special Forces to the bunker after he made his obligatory public appearance to prove that he had not defected.

Home Front

AP State Wire News reports, under the headline "Protesters being arrested in downtown San Francisco":

San Francisco police have begun arresting anti-war protesters blocking intersections all over the downtown area.
A group of fifty demonstrators sitting in the middle of the intersection of Market and Beale was ringed by police in riot gear. They've begun arresting those who refused to clear the street.
At Mission and Fifth, at least 20 people were arrested as up to 100 demonstrators stood on the sidewalk with protest signs.
Protesters tried to block traffic exiting Highway 101 at the Ninth Street exit -but authorities reopened it. The protestors stopped motorists using bedposts, then tried to pass petitions to drivers and waved signs reading, "Free the oil."
Van Ness Avenue near City Hall has also been targeted and a number of intersections on Van Ness have been closed.
Public transportation is snarled all over the downtown area.

The other part of being a citizen in a democracy is accepting the decisions of the polity once the debate is over. Just as the majority must recognize the right of dissenters to dissent, the dissenters must accept the right of the majority to implement its policies.

Sour Grapes on the Home Front

Or why we respect the media. The Fresno Bee sententiously lectures:

Launching a preventive war marks a radical departure both from our own traditions and the norms of international life. And the way it was launched -- after ham-handed diplomacy, blustering threats to friends and with contempt for some of the nation's oldest and most important allies -- may also mark the end of an international system that has served America well.
Whether the new world order Bush is striving to build by his will and the force of American arms turns out to be safer, more peaceful and more just than the one he has thrown aside is anyone's guess.

Funny, I would have thought launching missiles into countries against whom there were no United Nation resolutions would have been more "unprecedented" and more of a departure from doctrine in the direction of "preemptive war." In which case the present military action is not "unprecedented," except insofar as it is a Republican administration that is prosecuting the military action. The rest of the piece about "ham handed diplomacy" and "contempt for some of the nation's oldest and most important allies" is perplexing. Is the Bee referring to Russia? We were in a Cold War with them until 1989. Perhaps, it means Germany? Nope, at war with them until 1945. France? Naw, they were supporting the Germans until late 1944.

My guess is that the Bee is referring to Britain.

The Ornery American has an eclectic reconstruction of one of the world's oldest institutions.

Home Front

The OmbudsGod offers his take on David Frum's follow-up to his essay on the paleo-con v. neo-con debate. Specifically, the odd penchant that the paleos have for Jefferson Davis and the Confederacy. At the risk of drawing fire, let me offer this observation to the pro-Confederacy romantics: you lost. Get over it.

James Lileks pens a tribute to America's fighting men and women.

Jay Manifold has a useful link to sites providing Iraqi weather and other data.

The Fresno Bee has looked at the current situation and warns against the true threat to liberty - nativist Americans who may react against people with French accents or people who dress in middle-eastern attire. Fresno is, of course, a terrifying place to be if you're a Francophone and the quietly gathering masses of Fresnans who are planning pogroms against the Arab ghetto huddled on the shores of the San Joaquin is a frightening propsect.

The old Walt Kelly aphorism that "we have met the enemy and he is us" was probably cute the first one million times it was used. Now it's just tired. Despite the fact that it sounds superficially cynical, and therefore insightful, It doesn't really pass for critical thought. Further, who is this "us" that the phrase speaks of. Clearly the Bee isn't worried about itself - journalists are hardly about to administer a sound ass-whupping on the nearest convenient francophone. To the contrary, the Bee is warning us about, well, us, i.e., the unwashed masses who might act out of "fear" or "rage." You know, the "angry white males." [And, perhaps, a few bellicose females with a desire to open a can of whup-ass the next time they hear someone in a beret "parlez vous."]

Let's take a time out on this whole paranoia about Americans, shall we? This country has performed its penance for its past sins of chauvinism - a word the French coined and, incidentally, to this day exemplify. The universal restraint of Americans since 9/11/01 has proven that Americans have internalized the virtue of tolerance and social peace. However, our soldiers are in the right to place at the right time to deliver the lautes signal and die Welt that "you are never going to fuck with America like that again."

Can we now focus on the real issues instead of fictitious storylines designed to make the average American look like a potential stormtrooper?

Lautes Signal and die Welt

[Via Instapundit (of course).] Check out this Der Spiegel article and headline -Schlachtreden vor der Invasion: "You can't fuck with America." Here's the "money graf:"

"Lautes Signal an die Welt"
So habe Oberst David Perkins von der dritten Infanteriedivision in einer Motivationsrede am Dienstag gesagt: "Unser Land wird nie im Frieden leben, solange wir nicht die Bedrohung durch einen neuen Weltfeind ausradieren: den internationalen Terrorismus". Terroristen wie Osama Bin Laden seien von Staaten wie dem Irak abhängig, die sie unterstützen.
Auch Captain Ronnie Johnson, Chef eines anderen Bataillons, habe einen Bezug zwischen dem Irak-Krieg und dem 11. September hergestellt, wenn auch in weniger höflicher Sprache. Sein Aufruf laut "Washington Post": "This is going to be the biggest statement to the world that you are never going to fuck with America like that again".
(Sinngemäß übersetzt: "Das hier wird das deutlichste Signal an die Welt: So wird sich Amerika nie wieder verarschen lassen".)

Damn skippy, Captain Johnson. Do it to it.

Don't you think the Europeans kind of envy that "cowboy attitude?"

The Enemy of my Enemy

They began by hating the neoconservatives. They came to hate their party and this president. They have finished by hating their country.
War is a great clarifier. It forces people to take sides. The paleoconservatives have chosen — and the rest of us must choose too. In a time of danger, they have turned their backs on their country. Now we turn our backs on them.

David Frum has a great essay on the recent history of conservativism with particular emphasis on the neocon - paleocon split. I have mentioned a couple of time my recollections about the issues that sent Pat Buchanan and Joseph Sobran Na Kamchatka. Frankly, the anti-American tone of these paleos has been disturbing for years and was one reason that Buchanan and Sobran forfeited any credibility that I had previously granted to them.

Note, though, that being an anti-American conservative is a lot like being an American-bashing Country-Western singer. That dog won't hunt. You lose your voice in the discussion in a heartbeat.

The same rules clearly don't apply to the other end of the political spectrum. We all remember the anti-war protests when Clinton bombed Serbia and took the unprecedented step of unilaterally firing cruise missiles into countries that we were not at war with. Remember the savvy op-ed pieces about the slippery slope that would be created by an American policy that had the hubris of declaring that it could target factories in countries with which we had no declarations of hostility against? Remember the concerned inquiries about what would happen if other countries modified the Clinton policy in order to launch missile attacks at American factories or summer camps based upon their suspicions that those sites were supporting hostile groups? Remember the Republican leaders who castigated Clinton for his "failure of diplomacy?"

I don't either. I also don't remember the leftist anti-war protestors on the streets either, which is solid evidence that, like the paleos, the left's opposition is to the president, not the military action.

Update: Pat Buchanan may be working on his redemption.

Variations on a Theme: The Ever Changing Selection offers his take on the Frum essay. I frankly hadn't realized the extent of the Anglo-Protestant irredentism of the paleocons. To me, conservativism had always had a distinct RC edge; an impression fostered by my discovery of National Review in high school, at which time I was also reading Mother Jones and the Progressive. [ As a military brat, I come by my conservativism honestly, but it was nice to find a cultural fit with National Review. The neocon label is also honest since I started reading Irving Kristol and Commentary also in high school.]

Mark Byron offers his demurrer to David D's observations - the paleos are not racist, just ethnocentric. Like I said, Anglo-Protestant irredentists. Not that there's anything wrong that per se - I think Marshall Chauvin got a bad rap - but because of unfair historical propoganda, conservatives simply have to avoid anything that suggests racial insensitivity. Making arguments that the Confederacy was a lost opportunity doesn't get you there. Further, the language of the paleos can sound alarms, even in people of good will. It was Buchanan's rhetoric suggesting that he harbored anti-semitic tendencies, rather than his actual policy suggestions, that landed him beyond the Pale.

Thinking About War

My Mennonite partner dropped a copy of Romanian Catholic Bishop Botean's pronouncement on the war with Iraq on me. I was not as conversant with the issues raised as I would have liked to have been. I confess I hadn't even known that there was a Romanian rite within the Catholic church.

I think that Bishop Botean makes some fair theological points concerning morality. For example, the fact that the state makes something legal or illegal doesn't make the thing moral. Nonetheless, I also think that Bishop Botean is substantially off the mark in his letter. The Bishop's analysis ignores the prudential judgments and circumstantial details must be addressed in any discussion of the morality of war and peace. I don't think that there is any precedent in the Catholic tradition for arguing that war is evil per se, either as an end or as a means to an end. The Catholic tradition has never been paficistic, as the Mennonite tradition, for example, has been. Whether any particular military action is evil depends on the facts and circumstances in which the war is initiated or maintained. Bishop Botean's decision to ignore the particular facts and circumstances of the current situation weaken the teaching authority of his letter.

One important factor in discussing the morality of the present conflict must be the ineluctable fact that America - and Britain, for that matter - are democracies. Democracies are more transparent in their objectives and are inherently responsive to public interest. Further, according to classical republican theory democracies "breed" people who are more civic and therefore more moral. A trust in the judgment of people who are selected by their fellow citizens should have some bearing on the basic questions that inform an assessment of whether a given war is moral or just. Hatred of President Bush notwithstaninding, democracies don't foster a culture or mentality that seeks aggrandizement through military action. The history of American involvement in military actions supports the proposition that democracy does justify the hopes of its earliest theorists that democratic polities would not be aggressive or venal. To paraphrase Colin Powell, in the last 100 years, American military actions have not expanded the geographic territory of America, except as to the cemetaries where its soldiers have been buried in defending the liberties considered essential in the western tradition.

For a more subtle reflection on Bishop Botean's letter, please go to Bill Cork's blog, which has a comprehensive discussion of the Bishop's letter.

Update: Also check out Mark Byron's deconstruction of Bishop Botean's letter. Mr. Byron confirms my intuition that the Christian tradition really isn't pacifist with some pertinent passages from the Bible.

Strangely revealing quote of the day.

Now that war is imminent, and Hans Blix can retire to his study to ponder his good works, Reuters has an article reporting on Blix's prognostication about the Second Gulf War. Blix observes:

"So there is a fair amount of skepticism about armed action," Blix said. "That skepticism would turn immediately around, if they used chemical weapons or biological weapons," he said. My guess is they would not."

His guess? His guess?!? What does he mean by "guess?" Wasn't Blix and his crew traipsing around Iraq looking for this stuff? When they didn't find any, didn't Blix reassure the world community that Iraq was coming into compliance and showing a more cooperative attitude? You mean Blix thinks that Saddam actually has chemical weapons and he "guesses" they won't be used - i.e., that Blix actually believes that Saddam was in violation of Resolution 1441?

The U.N. - Fight the Future.

Alterman Watch

Happy Fun Pundit opines that Eric Alterman's performance on the Daily Show was "nuts." Apparently, Alterman has been reinforcing a view that he is a goofy snob to an increasingly larger audience.

The Raven brings some classical knowledge to bear on the current moment. [Scroll to second post.]

Jane Galt drops one on a subject that I haven't been able to isolate - the current fashion of American celebrities who bad-mouth America before foreign audiences:

One could argue that the fan response is a tempest in a teapot -- but they're not arguing that. With good reason, because the Dixie Chicks didn't just say they were against the war. They declared in front of a foreign audience that they were ashamed that the President came from the same state they were. It was less a statement of conscience than unseemly pandering for cheap popularity by hurling, at the president of their country, the kind of schoolgirl sarcasm that one is supposed to have left behind by the time one is old enough to play in front of a foreign audience. It's hard to fault their fans if they decline to encourage that sort of performance. So instead they're arguing that it's somehow wrong of you to actually express your dislike of what the Dixie Chicks did by voting with your wallet.

Seven out of ten support Bush on Iraq.

Check out this article from the Washington Post.

What happened to the Left - Part 3

Plotting sabotage according to FrontPage magazine.

Ipse Dixit has a link to a very clever site providing a "periodic table of Haiku."

In every lawyer's life there comes that amazing moment when you turn to your client and say "Oh, my God, you were telling the truth."

I actually have a wage and hour case on behalf of three Wal-Mart workers where they say that they were locked in during inventory -when they were working off the clock. Either they're confusing themselves with this Wal-Mart in Virginia or there is a whole lot of cost savings going on. As the article notes:

But the demands of maintaining La Plata's impressive numbers do not always foster concord between management and employees. Five associates I spoke with harbor bitter feelings over last year's inventory preparation, during which they claim management locked employees in the store and threatened to fire anyone who tried to leave before the work was done.
"They came out over the intercom, and said, 'If you go home, you're fired,' right in front of the customers," an associate alleges.
"It was scary," another says. "It was really something."
Not so, claims Jon Lehman, who worked at Wal-Mart for 17 years, some of them as a manager, and now works for the D.C.-based United Food and Commercial Workers International Union, which is trying to organize union representation at Wal-Mart.
"Really, [lock-ins are] the understood way, the understood method for doing inventory," Lehman says. "You have to keep the workers there until the work is done."

I have been a big defender of free enterprise and big business, but the same rules have to apply to Mom and Pop stores and the behemoth from Bentonville.

Between Heaven and Hell... asks an interesting question about the separation of Church and State. Is the depiction of Minerva on the Great Seal of California unconstitutional? My guess is that it is entirely constitutional because of the secular connotations of that Greek religious icon.

Saddam and the connection to terror.

Rush Limbaugh has satellite photographs purporting to show the fuselage of a plain used to train terrorists how to hijack planes. Defectors have reported on the facility and its use. The Limbaugh photos show, by golly, a plane fuselage.

Looks like solid evidence to me.

What's with the Left? - Part 2

Little Green Footballs has a picture of the Rachel Corrie "teaching" Palestinian children how to burn the American flag. Corrie was the "human shield" recently killed during her "human shield" activities in Israel. A house fell on her, or something.

Nothing quite like reinforcing bigotry and hatred to bring peace on Earth. Or perhaps that wasn't her objective.

RIP

Thinking about War

Mark Byron crystallizes the reasons for American action against Iraq.

One nice thing you see in Byron's pro bellum apology is its reflective tone. I think in this day and age any argument in favor of military action is going to require the exercise of prudential judgment. Since the militarists of the 1930's, no one in the Western World has held a brief for the virtues of war. That brief - now self-deconstructing - argued that war built strong characters capable of self-governement, while weeding out silly, selfish opinions. [See e.g., Rudyard Kipling, Lord Baden-Powell, Teddy Roosevelt and, for that matter, Robert A. Heinlein.] Those days are gone for at least the present. On the other hand, anti-war sentiment is cheap and easy. Also, childish and foolish - exactly as Kipling or Roosevelt believed. Fox had a man on the street segment from Paris where a middle-aged Parisian woman explained that she was against the war because "war never solved anything." The statement is so obviously wrong it doesn't need any further ventilation than the deconstruction that Heinlein gave it more than forty years ago. ["War never solved anything? Tell that to the Assyrians."] Yet, that is the kind of logic that passes for deep thought among the gauchistas.

There is an incipient cognitive dissonance at work in the media. One news segment can report that Saddam is destroying missiles and that Blix is commending Iraq for its cooperation with UN inspectors, yet the very next segment can report on the prospect of Scuds being launched at Israel from Western Iraq. In other words, both situations are presented as being equally likely - Saddam is destroying his WMDs and he has undestroyed WMDs. And no one comments on the inconsistency. One of the news stories is obviously an exercise in propoganda. It probably isn't the second story or the media would have said as much.

In a very real sense the uncertainty alone justifies military action. In other words, if there is a reasonable doubt that Saddam has WMDs, he's convicted.

We have yet to hear anyone in the anti-war left - or in France or Germany - take the position that they are certain beyond a reasonable doubt that Saddam has disarmed. The fact that they cannot, or will not, demonstrates the cravenness of their moral position.

All I need now is a catchy expression that will fit on a sign.

Update:

Country Store provides an answer.

Report from Paris on the San Joaquin

Anna reports on the true facts surrounding yesterdays "Ides of March" protest. Here's her summary:

And yes, I'm pleased to report at least one person brought a "Support Our Troops" sign. Considering that all these pacifists are defended by the Arsenal of Democracy, and because its brave men and women are on the eve of putting their lives in harm's way for us, I'm glad at least one couple was thinking of them today.

God bless you two (and the guy who protested while respecting his flag). The rest of the crowd: they're selfish, petty and vain. And it really shows.

Check out her fisking - with pictures - of the protest.

As for California's version of the Bible Belt, I'm sorry to say that today was our turn to have the best and the brightest stand by the road and scream at passerbys. I was taking the Widget, the Wadget and Boff to Barnes and Nobles to get some coloring books, and we got to go between a couple dozen of these chowderheads with their "No war for oil" signs.

It looked like so much fun that I hollered "Free Iraq" as I was passing by.

It also gave me a chance to explain to my 10 year old that there are bad people in the world and that they won't go away by pretending they aren't there. Got to thank these logic-impaired hysterics for the teaching moment, which should create a few more Republican voters in twenty years.

The Blog from the Core lays out my understanding of the role that the magisterium plays with respect to the impending Iraq conflict. Lane's essay is personally timely inasmuch as the same issue came up after my Communio group on Thursday. It was framed by a woman who had attended a meeting where 49 Catholic women ordanined themselves a priests and wanted to know why those women couldn't ignore the magisterium on the issue of female ordination but I could ignore the Pope on Iraq. My response was consistent with Lane's; the Church - any church - has unimpeded discretion to decide its own internal rules of organization, but in a Democracy, the compromise the Catholic church has made with society is that the Church will not interfere in political matters. The first thing I was taught was that the "Pope is infallible only on issues of morality and theology." Although there are cases where a war would be immoral - think of the Russian invasion of Poland or Finland, for example - the Iraq conflict is certainly within a sufficiently morally ambiguous area that deference to political authorities is morally acceptable.

Happy St. Patrick's Day

I know what I'll be doing Monday.

Well, it's official, Bringin' Down the House will not reignite Steve Martin's film career.

Hollywood: A land where actions are not supposed to have consequences

Sean Penn is accusing writer/producer, and substantial DNC supporter, of McCarthyism:

“Borrowing a page from the dark era of Hollywood blacklisting, multi-millionaire real estate heir, major political donor and aspiring motion picture producer Steve Bing and his company have reneged on a contract with Sean Penn to render acting services in the motion picture Why Men Shouldn’t Marry because of Penn’s televised exercise of free speech rights on the January 11, 2003 broadcast of Larry King Weekend,” said Penn’s suit filed in Los Angeles Superior Court.

Bing's response:

“This dispute arises from an extraordinary extortion attempt by an irrational and irresponsible actor, Sean Penn, to try to force Steve Bing and Shangri-La Entertainment LLC to pay Penn $10 Million Dollars (sic) in extortion money even though Penn and his representatives know that he had no legal right to payment because no agreement was ever reached for Penn to appear in the motion picture Why Men Shouldn’t Marry,” said Bing’s suit filed in the Santa Monica branch of Los Angeles Superior Court.

It's kind of hard to pick a favorite in this one - Bing denies any attempt to stifle Penn; in fact, Bing claims he encouraged Penn to speak his mind. On the other hand, assuming Penn's allegations are true, there's something ironic about the "second largest contributor to the Democratic National Committee" being labeled a "McCarthyite." Also, there is something heartening in the prospect that Americans can't pose as being above American interests without experiencing some consequences.

Rich Galen has a good column, which contains these paragraphs:

It was just a matter of time until someone said this out loud, so it was not a surprise from that standpoint. However, Democratic Congressman James Moran's comments the other day about Iraq and American Jews was still jarring.

At "an anti-war forum" in an Episcopal Church in Northern Virginia, according to the Washington Post, Moran said:
"If it were not for the strong support of the Jewish community for this war with Iraq, we would not be doing this ... The leaders of the Jewish community are influential enough that they could change the direction of where this is going, and I think they should."

When Buchanan made similar comments during the last Iraqi conflict, he was delisted by William F. Buckley, Jr. At least Buchanan wasn't a hypocrite as Moran appears to be:

One would have expected, in the 21st Century, that a politician with the experience of James Moran who has been in public office for 24 years - the last 12 as a Member of Congress. He said, in his own defense, "Nobody could berate me more than I do when I see my words in print compared to what I intended to say," which is Moran-speak for "If I had known it was going to end up in the Washington Post I never would have said it."

But that's the kind of man James Moran is.

And, thanks to the power of the internet Moran's thoughts are now getting a broader dissemination than he ever dreamed.

Read the rest of Galen's column for an inspirational contrast about the "kind of man Colin Powell is."

One of my rule of thumbs is that I know I am dealing with a person who has difficulty in discriminating the real world from fantasy when that person starts to defend slavery. You see this with pro-Confederacy romantics who paradoxically argue that (a) Southern slavery was really quite a rich and rewarding social network and (b) the ante-bellum South would have abolished slavery without the Civil War.

Another test case of that profound insight is provided by Relapsed Catholic who provides a link to this article - Federal Museum Denies Slavery in Africa Was 'Dehumanizing.'

Check this out:

The Smithsonian's African American history museum in Washington, D.C., states that while instances of slavery can be found throughout human history, the practice of slavery did not become "dehumanizing" until white Europeans came along and took slaves to the Americas.

The museum's West Africa exhibit, which opened Feb. 3 and continues through the end of August, includes the following statement at the entrance of the exhibit.

"Slavery had existed in Africa as it had in other parts of the world, for centuries, but it was not based on race and it did not result in dehumanization and death, as did transatlantic slavery," the exhibit's statement declares.

Sounding incredibly like a similar argument made by pro-Confederacy romantics is this observation:

According to Babou, many African slaves were treated like family members.

"A domestic slave, a slave that was pretty much incorporated into family, was like an adopted child in the family. They were not a commodity, they were not dehumanized," Babou explained.

Presumably, slave quarries and slave gallies in Africa were also not "dehumanizing." Obviously, this museum is telling a fantasy story, not teaching history.

The Brothers Judd Blog has two posts on the morbid subject of torture, which oddly seems to be a subject attracting some attention recently. This one spotlights Pat Buchanan's typically nuanced view that torture is morally licit because of the good it can bring. The other one is neatly entitled A merciful God will not lead us into temptation makes the point that the torture debate is misguided because torture is useless from an intelligence standpoint.

For what its worth, Buchanan's argument shows that his hold on Catholic moral tradition is weak. "One may never do evil so that good may result." [Catechism of the Catholic Church, section 1789.] Going back to at least Aquinas, Catholic moral theory has thoroughly rejected utilitarianism, albeit also furnishing all kinds of useful reservations on the basic principle. [Cf. "Principle of the double effect."] Now this is not to say that under the right circumstances - nuclear weapon in Los Angeles with thirty minutes to go - the temptation to use all means to obtain information would not be overwhelming. Likewise this does mean that in those outre circumstances the temptation should not be indulged. Indulging the temptation would be morally wrong, but, hey, people commit worse sins every day for more trivial reasons. Fortunately, no one faces that temptation today because God is merciful and, pace Buchanan, torture is useless for extracting trustworthy information.

Spend your entertainment dollar wisely

Chrissy Hynde announces her support for an Islamofascist victory. (Probably, because under Islamofascist rule, female rock and roll singers would finally get more respect.)

On the other other hand, Charlie Daniels tells the Hollywood intelligentsia to get a clue.

[Both of these are from Hollywood Idiots -- Exposing Celebrity Idiots and Anti-Americans.]

Mark Steyn had an interesting insight about the photographs of Khalid Sheik Mohammed:

The best evidence for this is Khalid Sheikh Mohammed himself. KSM is known in al-Qa’eda circles as ‘The Brain’, and his picture on the FBI ‘Most Wanted’ list shows a cold but dapper fellow with a trim beard — like the Westernised Arab academics who play the talkshow circuit or, indeed, an assistant choreographer on a Broadway revival. By contrast, the fellow seized in Rawalpindi is a wreck — haggard, bleary, unshaven, a loser who’s run out of everything except back hair. Asked to account for the stark difference in appearance, several experts pointed out that he’s a ‘master of disguise’. In that case, the master of disguise is doing a great job of convincingly passing himself off as a guy who’s been sleeping in a hedge for a month. The state of KSM provides a glimpse of the career options available to top al-Qa’eda honchos: either, like bin Laden, you go into deep cover as a few specks of DNA discreetly sprinkled in the rubble of Tora Bora, or, like ‘The Brain’, you’ve a choice between hunkering down in a ‘safe house’ or staying on the move, never knowing, even when you’re motoring through the emptiness of the Yemeni desert, if some unmanned CIA Predator will drop the big one on you.

Observations like that are precious. I had noticed the difference in appearance between KSM as the dapper intellectual and KSM as John Belushi's stand-in, but I didn't make a connection the idea that KSM's dishabile evidenced a guy who had not been getting regular rest and exercise.

Out of Action

Due to allergies compounding into bronchitis coupled with a hectic work schedule, I've been out of action here the last few days. The work-related contribution consisted of mediating my client's failure to accommodate case in Sacramento against the State of California. One interesting aspect of this road trip was shooting the breeze with different people who have connections to the Democrat party in Sacramento. One thing seems clear - Governor Davis is not well loved and a large portion of the attitude is the kind of personal style issues that never become public.

Thanks to the other part of my inactivity I can report that: The Ring is a fairly decent horror flick - not great, but watchable, although the logic of the movie is suspect; Simone is another watchable movie with plot problems. (Things don't seem to play out. The movie introduces a sleezy investigative reporter who does nothing to further plot points. Pacino's character is set up for murdering his VR actress, but the resolution seems strained and not connected by the set up.) ; Formula 51 was surprisingly good. Of course, I watched it with low expectations, which always helps. Formula 51is an American version of the British underworld movies that Guy Ritchie has been doing, with the added dimension of Samuel L. Jackson in a kilt doing his Jedi bit with a mashie. Be warned that Formula 51 has its share of violence and bad language, but, surprisingly for a movie whose central premise is Jackson's attempt to peddle a drug that is 51 times more powerful than cocaine, it has a very overt anti-drug message. (Jackson advises his Liverpool fixer mate to "just say no.") Formula 51 was an entertaining time killer.

So Cal Law Blog is doing blawging with a Southern California emphasis. Since we here at Lex Communis swing both ways - Fresno's chief selling point is that we are three hours away from both San Francisco and Los Angeles - I will be checking in periodically.

Peggy Noonan has an insightful essay on what the Democratic party needs. Short answer - stop being snobs and start caring about your fellow citizens as something more than counters in the political game. As she puts it, "you may mean to be helpful in the abstract, but you are not helpful in the particular."

Resegregation

Jay Nordlinger has a post on the existential silliness that bilingualism has fostered.

Here's my contribution. About three years ago I was the Community Service Director for North Fresno Rotary. One of our community service projects was to provide support for an elementary school in an impoverished neighborhood. The school's population was largely Hispanic with a smaller population of Hmong.

That Halloween I judged the school's Halloween costumes. I went from room to room. The Hispanic kids were really decked out in costumes. The Hmong kids clearly had no understanding of the traditions of Halloween. I did notice one thing as a I walked through the classes. It seemed that every class I went through was either entirely Hispanic or entirely Hmong. I thought that was strange with all of the emphasis on integration and busing when I was a kid. I asked the Principal, who was my tour guide. His answer was, obviously, ESL programs. The school was required to teach ESL in either Hmong or Spanish, and that resulted in the racial segregation I was seeing.

Welcome to the Brave New World of racial segregations. I simply hope that these kids are being permitted to say the Pledge of Allegiance in their segregated classrooms so that they might have some shared traditions which could possibly knit them into a common nation.

Bahrain Rocks. American ally and transforming itself into a functional democracy!

All you Communio folks, remember when last week when I said "the Catechism - if it's not in there, it's not anywhere." Remember two weeks ago and our discussion of whether Christ's atonement included the fallen angels and whether Satan could repent. Disputations has the answer and the citation to text.

So very typical of Saddam. If Iraq is attacked, Saddam will unleash his "non-existent" WMD inventory on ...the Kurds. Of course, this is in keeping with Saddam's earlier precedent of lobbing SCUDs at Israel to the North when the Alliance was coming from the South. Isn't it clear that we've got the moral and legal authority to disarm this dude?

Anna has a great anecdote about Poland's technological expertise and it's role in the "Arsenal of Democracy" aka "AOD"(TM). The story I tell about the strange results one gets with planned economies I got out of Analog. Apparently, back in the early sixties, the USSR decided to go big into vacuum tube technology. By the 1980s they could do things with vacuum tubes that Americans could only dream about - build them better, smaller and more powerful.

Too bad they missed the boat on the silicon chip revolution. [Which proves, again, that Hayek was right.]

Jay Manifold is breaking a tradition by responding to the Friday Five (on a Sunday no less.) I think I'll join him because of the SF-geek angle:

1. What is your favorite type of literature to read?

Take a guess.

2. What is your favorite novel?

Jay has a good list, but I would have to add the now forgotten The Last Starship from Earth by John Boyd, which really should have received the 1968 Nebula and Hugo, but there were some other decent books that year. The book has it all - humor, intrigue and the fascinating look at what the world would have looked like if Christ had died by a crossbow bolt during the final assault on Rome.

3. Do you have a favorite poem? (Share it.)

M'Andrew's Hymn, by Rudyard Kipling. Here's the opening:

Lord, Thou hast made this world below the shadow of a dream,
An', taught by time, I tak' it so - exceptin' always Steam.
From coupler-flange to spindle-guide I see Thy Hand, O God -
Predestination in the stride o' yon connectin'-rod.
John Calvin might ha' forged the same - enorrmous, certain, slow -
Ay, wrought it in the furnace-flame - my "Institutio".
I cannot get my sleep to-night; old bones are hard to please;
I'll stand the middle watch up here - alone wi' God an' these
My engines, after ninety days o' race an' rack an' strain
Through all the seas of all Thy world, slam-bangin' home again.

That dude could turn a phrase.

4. What is one thing you've always wanted to read, or wish you had more time to read?

Someday, I will work my way through Thucydides, The Peloponesian Wars.

5. What are you currently reading?

John Searles, Rationality in Action (Jean Nicod Lectures); Norman Podhoretz, The Prophets: Who They Were, What They Are I knocked off Robert Sawyer's Hominids and The Neanderthal's Necklace byJuan Luis Arsuaga two weeks ago. The Neanderthal Necklace has some nice observations that tie into the Searles book. There are other books that I have scattered around, but those are the principle ones at this moment.

I saw Peter Woods talking about his book - Diversity: The Invention of a Concept - CSPAN. It looks interesting, particularly his point that the modern "diversity" industry in academia is a fraud which was extrapolated from dicta in Powell's concurring opinion in Bakke.

Right On.

Here's something worth noting. alt.muslim - your muslim news community has an opinion piece by an American Muslim telling the Islamofascists to get stuffed. The author is not a Bush supporter, but the promise of America is that the blood debts of the Old World have not hold on us here. The other side of the promise is that those who come here have to realize that they are not part of the old feuds.

Just in Time for St. Patrick's Day

Verus Ratio has a post listing his favorite Irish movies.

How Appealing reports that the Pledge case is cleared for the USSC, or SCOTUS, if you prefer. So, I guess, Terry Cassidy gets his second SCOTUS appearance. He'd better do better before the Supreme Court than he did before the Ninth, or he can stay in D.C. [My prediction remains that the Supreme Court secularizes the "under God" language and reverses the Ninth.]

The Raven runs a fairly eclectic operation. After "bitch-slapping" someone for asking him the "Friday Five," he then discusses the relevance of philosophy. I like this note:

In the case of an artistic insight, it's generally our experience with external reality that changes. Philosophical epiphanies, on the other hand, can also change our internal nature, literally recreating what we see, how we see it, and who it is that's doing the seeing.

Well that's all well and good, but I tried reading all that blather and it didn't do squat for me.

That's very possible. For one thing, reading a copy of Bon Appetit magazine won't improve the quality of your cooking. You have to work with the ideas, chew on them, plant them in the soil of your consciousness and maybe something will take hold. Sometimes you have to prepare the ground in advance.

Via Mark Shea, here is an Father Greely piece on the latent anti-Catholic bias in film reviews of the Pianist. Greely makes a fair point about the "Righteous Poles" who inexplicably risked their lives to save Jewish lives during the Holocaust. Doesn't it seem like evil often makes more sense than good? You can understand the average Pole being pragmatically indifferent to the evils inflicted by the Nazis on the Jews, but why did any Pole take such a huge risk to himself to make a tiny, tiny difference in the big picture and for someone who, if you believe the likes of Goldhagen, he had been indoctrinated to view as "the other" and worthy of extermination.

Likewise, slavery I understand. Getting something for nothing seems rational. What I don't understand is why England in the early Nineteenth Century decided to end the slave trade.

Mercy may ultimately be a mystery, which perhaps make sense given its source.

Jacob Sullum has an interesting column on a recent decision invalidating New York's Kosher laws. Given my recent forays into the constitutional dimensions of these issues, I have to agree that the decision is well-founded. The state cannot be involved in deciding which religious definition of "kosher" is correct.

On the other hand, the state can certainly enforce laws of general application such as unfair competition or false advertising statutes.

I also like Sullum's point that recent forays into statutes defining "organic" may have the same constitutional vice. It's a cute idea, but California has already decided that "veganism" is not a religion for purposes of anti-discrimination lawsuits under the Fair Employment and Housing Act.

Why is there air?

Philosoblog - a blog by a philosopher.

Sounds cool.

Local News

The first named guy gets quoted in the Fresno Bee.

Let the Light Shine In

Check out this site - Hollywood Idiots -- Exposing Celebrity Idiots and Anti-Americans. I guess I'm part of a McCarthist mind-set which will create a climate of fear in Hollywood.

Ah, who cares.

This review at the History News Network says that Gods and General is a movie that you should miss because of its "whitewash" of the slavery issue. Read the comments for an eye gouging debate.

Different bloggers are calling the recent SCOTUS decision in SCHEIDLER V. NATIONAL ORGANIZATION FORWOMEN, INC a vivtory for free speech. I gave it a cursory glance and I can't tell. Basically, Scheidler prevents NOW from using RICO against anti-abortion organizations. While this is a good thing from a free speech perspective, the fact is that RICO is a statute that has been progressively undermined by the courts. [Admittedly, for good reason.] This may be more of an anti-RICO decision than a pro-First Amendment decision. [Not that that is a bad thing.]

Legal Theory Blog seems to have some interesting posts. I note a post on Searles, which is interesting since I am still working my way through "Rationality in Action."

Ha!

Apparently, my life long devotion to geekdom has finally paid off. I am rated "neutral." [I am following Sulik's lead and pulling the cool graphic.]

A Natural for Penner

The Ugly Canadian - I mean the political attitude, not the description. Penner has recently been uttering treasonous thoughts about the Old Country and has been referring to the importance of supporting "our" military, by which I don't think he means the Canadian Defense Force.

Sovereignty and the Bomb

Remember when the national sovereignty over the oceans extended as far as a ground based fort could fire a cannon. This UPI article makes the interesting argument that concepts of national sovereignty may undergo another dramatic transformation if the international community makes the wrong decision with respect to Iraq. According to the article, ignoring Iraq - and presumably North Korea - will tend encourage nuclear proliferation and the satellization of non-nuclear states in the region. All of which may lead to a world where sovereignty means no more and no less than having nuclear weapons.

Thought-provoking and very frightening.

Of Ontological Fire-breaks and Pragmatic Utilitarians

unbillable hours has an link to Harriet McBryde Johnson's account of her interactions with Peter Singer. Singer is the Princeton Philosopher whose utilitarianism has led him to argue that human children are no more significant in a moral sense than grown animals and that parents should have a legal to infanticide with respect to disabled children.

Johnson, on the other hand, is afflicted with a condition that has left her wheelchair bound, able to eat only pureed food, and unable to move herself when her body's center of gravity shifts. Notwithstanding all that - a phrase that Johnson would condemn as sheerest bigotry - Johnson is a practicing attorney and offended by the idea that her life has not been worth living and should have been terminated when she was an infant.

Not surprisingly, I am on Johnson's side in her argument with Singer. Nonetheless, I was amazed at the theoretical weakness of her position. It was almost as if she was trying to outflank Singer with utilitarian arguments, while basing her case on two specific rhetorical fallacies - the ad hominem attack and special pleading.

The ad hominem aspect of Johnson's thinking seemed almost to create a fugue state in her. The syllogism of Johnson's argument appears to be something like: (a) only a monster would argue in favor of killing children like Johnson, (b) Singer makes such an argument, (c) Singer is a monster, (d) arguments by moral monsters are per se immoral and wrong. The problem is that Singer isn't a monster; he's a philosopher. Consequently, Johnson has to struggle in her dealings with a person who is in fact quite humane. For example, Johnson stresses over minutia like being polite to Singer, shaking his hand, allowing him to assist her when she needs assistance. That sets up this passage:

It is generally assumed that I handled the substantive discussion well, but people worry that my civility may have given Singer a new kind of legitimacy. I hear from Laura, a beloved movement sister. She is appalled that I let Singer provide even minor physical assistance at the dinner. ''Where was your assistant?'' she wants to know. How could I put myself in a relationship with Singer that made him appear so human, even kind?

I struggle to explain. I didn't feel disempowered; quite the contrary, it seemed a good thing to make him do some useful work. And then, the hard part: I've come to believe that Singer actually is human, even kind in his way. There ensues a discussion of good and evil and personal assistance and power and philosophy and tactics for which I'm profoundly grateful.

Is this really what concerns people in a "movement?" Being polite to the "enemy?" I would bet that this kind of thinking explains much of what one sees in "movement" rhetoric. The "movement" really believes that their opponents are less than human and deserving of no respect on any level because of their views. Amazing, I have never seen a better instance of "objectifying the other."

Obviously, Singer is a nice man. Why wouldn't he be. It's not his manners that are the problem; it's his philosophy. The argument is philosophical, and unless you can effectively model Mother Teresa, you had better not stake your victory on the idea that everyone will agree that your enemy is a monster.

The other prong of Johnson's argument is simply "special pleading." She offers herself as exhibit one in her case. She explains that she felt life was worth living, that she preferrs existence to non-existence, that she resents being told that she was a burden or that her family would have been better off if she had been neatly disposed of when she was one month old.

But, really, so what? Obviously, she would feel that way. But is her special perspective compelling for others? How can she say that her "utility" - her enjoyment - is really positive? What is she comparing it to? What about the negative utility that she brought to others? How about the person who was deprived of a seat in law school who might have gone on to provide greater social utility as a divorce attorney than someone who squandered her education by becoming a "disability advocate?"

One can certainly learn a lot from a clearly courageous woman like Johnson who has overcome a lot. Johnson's experience says a lot about the power of the human spirit and the meaning of life, but oddly Johnson doesn't seem to say it. Her big contribution to to the debate is the idea that society oppresses the disabled, and that that wrongness of oppression vindicates her position. Thus, when dealing with the issue of allowing the disabled to choose the option of suicide, Johnson concludes:

I side with Gill. What worries me most about the proposals for legalized assisted suicide is their veneer of beneficence -- the medical determination that, for a given individual, suicide is reasonable or right. It is not about autonomy but about nondisabled people telling us what's good for us.

In the discussion that follows, I argue that choice is illusory in a context of pervasive inequality. Choices are structured by oppression. We shouldn't offer assistance with suicide until we all have the assistance we need to get out of bed in the morning and live a good life. Common causes of suicidality -- dependence, institutional confinement, being a burden -- are entirely curable.

Later, when a philosophy professor points out that her arguments are tactical and asks her what she would say "if we assume that such conditions do not exist?" Her response was a non-comprehending "why would we want to do that?" Johnson then feels "as if she is losing caste." What she never gets is that the problem is that others in society, the majority let's say, might assume at any time that the existential structures of oppression don't exist, and if that's the case what's her fall back argument for why suicide is wrong? What if society decides that oppression exists, but that's ok? Why, incidentally, is suicide wrong if it results from oppression? Because then suicide isn't a free choice? Ah, so it's choice that determines if something is good or not. Then, we'll set up structures and programs to ensure freedom of choice. Does suicide then become acceptable. I don't know about you, but if I were a disability advocate, I would want a stronger ontological fire-break against pragmatic utilitarians.

Singer is an atheist utilitarian. So, apparently, is Johnson, and she is offended by Singer's argument that opposition to his views are "religious."

Singer seems curious to learn how someone who is as good an atheist as he is could disagree with his entirely reasonable views. At the same time, I am trying to plumb his theories. What has him so convinced it would be best to allow parents to kill babies with severe disabilities, and not other kinds of babies, if no infant is a ''person'' with a right to life? I learn it is partly that both biological and adoptive parents prefer healthy babies. But I have trouble with basing life-and-death decisions on market considerations when the market is structured by prejudice. I offer a hypothetical comparison: ''What about mixed-race babies, especially when the combination is entirely nonwhite, who I believe are just about as unadoptable as babies with disabilities?'' Wouldn't a law allowing the killing of these undervalued babies validate race prejudice? Singer agrees there is a problem. ''It would be horrible,'' he says, ''to see mixed-race babies being killed because they can't be adopted, whereas white ones could be.'' What's the difference? Preferences based on race are unreasonable. Preferences based on ability are not. Why? To Singer, it's pretty simple: disability makes a person ''worse off.''

Are we ''worse off''? I don't think so. Not in any meaningful sense. There are too many variables. For those of us with congenital conditions, disability shapes all we are. Those disabled later in life adapt. We take constraints that no one would choose and build rich and satisfying lives within them. We enjoy pleasures other people enjoy, and pleasures peculiarly our own. We have something the world needs.

Except that her dislike of the market notwithstanding, who says the disabled have something the "world needs." The market? Utilitarian philosophers? Popular vote?

What is the value of a human being? Why are the disabled entitled to life? To read Johnson's narrative it appears that she and Singer agree on the answer - the value of a human life is in the quality of life. She and Singer simply disagree about whether the disabled have a quality of life that makes their lives worth living. Well, if that's the issue, lets get someone to decide. Appoint a special commission, or take a vote, or have a big debate between Singer and Johnson, and let's decide.

Unless, of course, you believe that mere humans don't get to make that decision about other humans or that human lives have a unique value because they are human lives.

I think Johnson's problem is identified by Alasdair MacIntyre in After Virtue. McIntyre's notion is that without a consistent tradition in which to analyze moral question, debates over moral questions are nothing more than incoherent, ad hoc rationalizations. Johnson's arguments seem to bear out this insight. Because she is a utilitarian, when she is confronted with a real utilitarian, she has nothing to argue except over who is a nicer pperson.

OK, justification fans, Bill Cork has some interesting comments and links on the Lutheran-Catholic Joint Declaration on Justification.

My first reaction when I read the Joint Declaration was to think of the best newspaper non-headline of all time: "Archduke Ferdinand found alive in Paraguay; World War I fought by mistake." By analogy, the Joint Declaration headline would have read: "RC Church agrees that Justification is by Faith; Thirty Years War fought by mistake."

Actually, though, on parsing the dense theological language, it appeared either that (a) there really was not an agreement or (b) the Lutherans were moving Catholic-wards on major issues. Reading some of the links in this post, it appears that some Lutherans felt the same way.

Well, a good settlement is one where no one is happy.

Worth Reading

James Lileks deconstructs the former French Minister for Latin American Affair's American bashing piece in the New York Times.

St. Patrick's Day must be coming

This is off the Harry Turtledove e-mail list:

Saddam Hussein was sitting in his office wondering whom to invade next
when his telephone rang.

"Hello, Mr. Hussein!", a heavily accented voice said. "This is Paddy down at the Harp Pub in County Sligo, Ireland. I am ringing to inform you that we are officially declaring war on you!"

"Well, Paddy," Saddam replied, "this is indeed important news! How big is your army?"

"Right now," said Paddy, after a moment's calculation, "there is myself, my cousin Sean, my next door neighbor Seamus, and the entire dart team from the pub. That makes eight!"

Saddam paused. "I must tell you, Paddy, that I have one million men in my army waiting to move on my command."

"Begorra!", said Paddy. "I'll have to ring you back!" Sure enough, the next day, Paddy called again. "Mr. Hussein, the war is still on! We have managed to acquire some infantry equipment!"

"And what equipment would that be, Paddy?" Saddam asked.

"Well, we have two combines, a bulldozer, and Murphy's farm tractor."

Saddam sighed. "I must tell you, Paddy, that I have 16,000 tanks and 14,000 armored personnel carriers. Also, I've increased my army to 1-1/2 million since we last spoke."

"Saints preserve us!" said Paddy. "I'll have to get back to you."

Once again, Paddy rang again the next day. "Mr. Hussein, the war is still on! We have managed to get ourselves airborne! We've modified Harrigan's ultra-light with a couple of shotguns in the cockpit, and four boys from the Shamrock Pub have joined us as well!"

Saddam was silent for a minute and then cleared his throat. "I must tell you, Paddy, that I have 10,000 bombers and 20,000 fighter planes. My military complex is surrounded by laser-guided, surface-to-air missile
sites. And since we last spoke, I've increased my army to TWO MILLION!"

"Jesus, Mary and Joseph!", said Paddy, "I'll have to ring you back."

Sure enough, Paddy called again the next day. "Top o' the mornin', Mr. Hussein! I am sorry to tell you that we have had to call off the war."

"I'm sorry to hear that," said Saddam. "Why the sudden change of heart?"

"Well," said Paddy, "we've all had a long chat over a few pints, and decided there's no way we can feed two million prisoners."

It doesn't seem to have very much to do with Harry Turtledove.

Movie News

As a member of the Redheaded Irish-Catholic Bar Association (not as exclusive as you might think - there is another member here in Fresno), I, of course, had to go see Daredevil yesterday. I was fully prepared to hate it, if only because of the presence of Ben Affleck. Actually, I liked it. I think it was better than Spiderman. The Daredevil character comes out as truly conflicted about his violent approach to "justice." I think this movie hits that note better than Batman did. I was hopelessly confused about why DD's "radar-sense" is better than vision, particularly when loud noises throw it a-kilter. As for his "secret identity," was there anyone at the end of the movie who was not in on the "secret?" On the other hand, I have been reading Daredevil since lawschool so I probably had a better grip on the storyline than most viewers, and DD's secret identity is pretty well-known, even to Wilson Fisk aka Kingpin (who did not kill Mathew Murdock's father, incidentally.)

It's a good time-wasting popcorn movie (if you like that kind of thing.)

In addition: Hooray for Captain Spaulding will someday review Daredevil, at least once he gets over his snit of not being picked for the Foggy Nelson role.

Here is a Robert Fisk column that decries the gauchistas prioritization of forming ever more intricate networks among themselves, as opposed to reaching out to the average person, who is apparently too mired in ignorance to comprehend anything beyond beer commercials and stock car racing. Kudos to Fisk for noticing the sterile quality of the Leftist anti-war project. Of course, his comments about rednecks is not very helpful.

By the way, notice the informed and altruistic quality of the Second Camera Man's geo-political commentary. His reason for supporting war is to protect Israel. It is not to get more oil or because of an atavistic fear of the "other." [The "other" might be Israelis, if I understand critical theory at all.] Apart from the earthy quality of his discourse, which I won't reproduce here, he sounds like an informed and public spirited man.

Of course, he has probably been fired from the tolerant and open-minded public television station where he was working.

Constitutional Nuances in the Scandal: The Wall of Separation Runs Both Ways


Robert Musil has an interesting post that suggests the latent constitutional issues in lawsuits involving the Catholic abuse scandal.

Apparently, the Boston Diocese attempted to use the First Amendment as a shield against claims that the Diocese was liable - vicariously or directly - for its supervision of abusive priests. According to Musil:

Superior Court Judge Constance M. Sweeney ruled that the lawsuits should proceed toward trial because the cases will not delve into religious principles, such as church doctrine, but the handling of allegedly abusive priests by their superiors. To accept the church's argument, Sweeney wrote, would be akin to granting the church blanket immunity from civil lawsuits. ''If the court were to recognize the defendants' sweeping church autonomy doctrine ... the result would be that church representatives could exercise all the rights and privileges the secular law affords yet not be burdened by any of the essential civil laws that protect the safety of all members of society, particularly children,'' she wrote.

Musil points out that Judge Sweeney believed that a civil court may impose a "reasonable care" standard on a church hierarchy in the same way that the state may impose a "reasonable care "standard directors fo a corporation. Musil disagrees:

By way of background, the issue here is not whether an individual member of the clergy can be held liable for his or her own acts. The question is whether or when the clergy's religious organization - in this case, the Archdiocese - can be held liable. Judge Sweeney has held that the organization can be held liable if it was merely negligent in supervising offending clergy. This case involves no claim that clergy members have any religious right to abuse their charges, so recent Supreme Court decisions upholding generally applicable laws not aimed at religion which have the effect of restricting religious practices (such as legal prohibitions on drugs used in religious services) are not applicable.

Musil disagrees with the attempt to treat Churches like commercial corporations:

The church is not a corporation. A church is not created by the state and need not take the form of a corporation, a limited liability company, a partnership, nor any other government-recognized entity - and the state is not entitled to impose what it believes to be good policies of corporate governance on a church. In particular, the First Amendment leaves the state very limited power to hold a religious group liable for failure to exercise any particular degree of control or supervision - and a "reasonable care" standard surely goes far beyond that state power.

As Musil notes, the Western history has often revolved around the allocation of jurisdiction between Church and State. In fact this tension led to the uniquely Western view of law and freedom. What is interesting is that Musil’s concerns are those which were outlined in the recent case of Richelle v. Roman Catholic Archbishop of San Francisco (filed 2/14/03) which came down on February 14, 2003.

Richelle involved a surprisingly frequent fact pattern whereby a Cleric engaged in sexual relationships with one of his flock whom he is providing counseling, usually marital counseling. Although this case involved a Catholic priest (commence smirking and knowing nods) these cases probably are more common outside of the Catholic tradition. Penner had one of these cases in the DP&B megafirm involving a Protestant - a Baptist, I believe - until quite recently (cease smirking.) Apparently sin transcends faith.

In any event, Father Felix Namocatcat took up with one of his parishioners, who, according to her complaint, was uniquely susceptible to his seduction because of her piety. Although Father Felix claimed that he had never engaged in such behavior and intended to retire from the priesthood to be with Plaintiff, he had a reputation for seduction which was allegedly known to the Diocese. The relationship ended poorly, and Plaintiff sued Father Felix and the Diocese for breach of fiduciary duty and negligence.

The Richelle case began with a discussion of Father Felix’s duties to Plaintiff. It began by noting that California has an “anti-heart balm” statute which eliminates the tort of illegal seduction. Because of this, the Court embarked on a discussion to determine whether Father Felix had any legal duty not to seduce his parishioners. The putative legal duty, it felt, might arise from either a “fiduciary” relationship or a “special” or “confidential” relationship. [Note to practitioners, this case may have one of the best discussions of fiduciary duties extant.] The court concluded that there was no “special relationship” in light of the because Father Felix was not licensed to provide counseling services and California does not recognize a cause of action for “clerical malpractice.” The California case - Nally v. Grace Community Church - which holds that there is no tort of clerical malpractice is widely followed because:

reflects widespread judicial acceptance of the Nally view that an action for clergy malpractice cannot be reconciled with the First Amendment because a standard of care and its breach could not be established without judicial determinations as to the training, skill, and standards applicable to members of the clergy in a wide array of religions holding different beliefs and practices. Even if a reasonable standard could be devised, which is questionable, it could not be uniformly applied without restricting the free exercise rights of religious organizations which could not comply without compromising the doctrines of their faith. The application of such a standard would also result in the establishment of judicially acceptable religions, because it would inevitably differentiate ecclesiastical counseling practices that are judicially acceptable from those that are not.

The fiduciary allegation presented more difficulty for the Court. The Court noted that (a) courts are split on whether a cause of action for breach of fiduciary duty may be stated against a cleric, (b) tort causes of action are permissible when they are based on “neutral principles” that do not involve religious doctrine and (c) no religion is seriously going to argue that seduction is part of a religious practice (thereby allowing the conclusion that liability for the tort will not overly burden religious practices.) Nonetheless, in the Richelle case, the Plaintiff was not claiming that her vulnerability arose from counseling or some other relationship apart from her piety. That, the Court felt, crossed the First Amendment line - “Appellant’s claim that the depth of her religious faith rendered her vulnerable to Reverend Namocatcat could not be adjudicated without reference to the nature of her religious beliefs and the doctrines of her church.” Distinguishing a prior decision, the Court wrote:

Unlike the plaintiff in Langford, whose vulnerability arose not simply from her religious devotion, but also from a grave physical ailment, appellant’s claim of vulnerability rests solely on her “deeply religious” disposition. Thus the crucial questions whether appellant was vulnerable to Reverend Namocatcat and unable to protect herself effectively would focus sharply on the nature and depth of her religious faith, and its basis, if any, in Roman Catholic doctrine. These are, of course, profoundly religious questions, as to which the courts may not constitutionally inquire.

Voila, the First Amendment was a complete bar to Plaintiff’s action.

The Diocese was given a pass in the case because of the absence of a cognizable theory against Father Felix. The Court noted that there was no attempt to state a claim for “vicarious liability” against the Diocese inasmuch as “seduction” was presumably outside of a Catholic priest’s job description.

The point of cases like Richelle is that religious organizations are not per se immune from liability. The violation of neutral laws will result in liability if the decision can be reached without any consideration of the victim or offender or denomination’s religious feelings or beliefs. On the other hand, the Constitution, and history, requires that Courts act with sensitivity in this area.

Finally, I find Musil’s suggestion that Jones v. Wolf and its progeny may be read as precluding collection efforts to be interesting. That is not my intuition, frankly, but the idea of a State-appointed bankruptcy trustee making decisions about which relics to sell and for how much does cause my constitutional knee to jerk.

There are clearly more constitutional conundrums in the offing.

Law Stuff

The California Supreme Court has come down with a decision in Colmenares v. Braemar Country Club and has held that the California legislature never intended that California law on disability discimination would be as severe and restrictive as the federal Americans with Disability Act. ["ADA."] The conclusion of the Colmenares decision is:

We hold that in 1997, when Colmenares’s cause of action for wrongful termination arose, a plaintiff seeking to establish physical disability under the FEHA had to show: (1) a physiological disease or condition affecting a body system; and (2) the disease or condition limited (as opposed to substantially limited, as required under federal law) the plaintiff’s ability to participate in major life activities.

Which is what I have been saying for years. Notwithstanding all that, this is nice to know now after numerous Superior Court judges erroneously dismissed a number of my disability cases. Well, I get to claim an ex post facto moral victory, which is really the best kind of victory and is some consolation after I laid out the costs in those cases.

Background: California law on disability discrimination is found in the Fair Employment and Housing Act ["FEHA"]. Corresponding federal law is found in the ADA. The definition of "disability" under the ADA expressly requires a determination that the claimant is "substantially limited" in performing a "major life activity." By statute, the FEHA requires only a "limitation" in a "major life activity. [Note: that's what the statutes say.] Because California judges use the ADA to construe the FEHA, and because they are generally conservative, those judges would import the more restrictive ADA definition into FEHA cases.

This subtle difference has a dramatic effect. Under the "substantial limitation" standard, a plaintiff has to be truly and recognizably disabled - virtually to the point that the plaintiff couldn't perform the essential duties of the job even with a reasonable accommodation (more tems of art) in order to qualify as "disabled." Consequently, we would have people who had been terminated because they were insulin dependent diabetics, who did not qualify for protection because they had their diabetes under control. This Catch-22 approach is federal law.

In 2001, the California legislature enacted the Prudence Kay Poppink Act, which stated the Legislature's intent that "limited" meant "limited" and not "substantially limited." The Court in Colmenares had refused to recognize the effect of Poppink Act because of its view that the Act was "new law" and could not be applied retroactively. The Plaintiff in Colmenares had been terminated in 1997.

The California Supreme Court took up the issue, and has now explained that the words "limited" meant "limited" and not "substantially limted."

For the lay person, this episode should be interesting as a view of the indeterminacy of statutory construcion. There is a myth that law has a precision. But laws, and contracts, are built on words, and how someone reads words is often based upon a host of considerations which are never really explicated. After all, "words are not crystals with fixed, invariant meanings; words are the living skin of thought."

I am hearing some rumors that the Modesto police have recovered Lacy Peterson's body. I think I have a second-hand corroboration from inside a media source, but nothing has shown up on the news sites so far. The rumors are saying that the body was located either under the house or near the husband's work site. Peterson's boat may have transported the body away from the home. This is speculation based on piecing together various threads of information from different sources close to the Peterson family. It may all be wrong, too.

Update: Rats. It was only a rumor. Well, whatever, watch for the boat.

Bill Cork has a post on a scandal at the Air Force Academy. The lede reports that female Cadets were rebuked for reporting rapes, which conjures images of sexist, chauvinistic military officials ignoring their legal duties.

But, later, as Cork points out, the rest of the story comes out. Per Cork:

But we read further (always read to the end of the article, because contrary to what journalists tell you, they do not always put the most important information up front!), and we see that one attack happened "after a night of drinking and strip poker"--in which the female cadet was a willing participant. And she complains that the commandant raised the question of her conduct as being a contributing factor. He said there was no jusitifcation for the attack, but "when you put yourself in situations with increased risk, you have to take increased precautions to mitigate those risks."

Which sounds like very good advice for young officers of either sex. Also, it sounds like excellent advice for young daughters.

Constitutional Confusion

Sacramento Bee columnist Marjie Lundstrom has a column in the February 6, 2003 issue of the Daily Journal, which is a "dead tree" legal rag, entitled Abortion foes cross line with attacks on elected officials. [For your reading pleasure, I located the on-line Sac Bee citation.] It's another opinion piece which effectively shows that J-School is not in the business of teaching either Constitutional Law history or critical thinking.

Let's concede for the sake of argument that Lundstrom may have a right to be concerned about the intrusion of religious denominations into sectarian politics and that she has the right to prefer abortion-rights as the ultimate or penultimate value in her scheme of ordered liberties. Nonetheless, her analysis displays the same kind of confused thinking about church-state relations that informed Judge Edwards constitutional misstep.
For example, Lundstrom writes:

The group is admittedly energized by the actions of Sacramento Bishop William K. Weigand, who said Mass last week and called on Gov. Davis to renounce his support of abortion rights -or quit receiving Holy Communion.

And so California is poised to be the next exhibit in the corrosive world of abortion politics, where one side is already eating away at the separation of church and state.

Never mind the "Deadly Dozen" business. Politicians can expect that stuff from both sides of the spectrum.

But explain, please, how Bishop Weigand -- for all his religious and moral authority -- has any business singling out an elected politician from the flock and publicly insisting he change his views? If this isn't an intrusion of church into state matters, then why isn't Weigand crawling inside the heads of all his parishioners and issuing a similar, pre-Communion challenge?

Last I looked, California voters chose a Democrat to run this state, not the Vatican.

To date, abortion is legal. The U.S. Supreme Court has agreed. And the governor of California is upholding the law.

Once again, the world-view hinted at in that passage is breath-taking.

First, the "separation of church and state" was intended to protect private associations from state action, not the other way around. There have been numerous occasions when churches have meddled in political affairs. The Methodists split over the issue of slavery. The Berrigans were involved in anti-Vietnam protests. Local church groups oppose gambling. Those activities are legitimate and constitutional because people are entitled to organize themselves in private associations. Admittedly, the fact that something is legal does not make it prudent. There has been a long tradition in American Catholicism - largely as a result of nativism and bigotry - that the Church stays out of politics. I think that is a good policy. Nonetheless, there is a distinction in the Catholic tradition between political activity by the laity and by political leaders. If Lundstrom had been interested, information on this distinction would have been readily accesible to her with a little internet research.

There is a serious point here, though, about the free exercise of religion. The true threat to religious freedom does not come from Bishop Weigand's insistence that Governor Davis recognize that his scandalous [in the religious sense] conduct has effects on his membership in the Church. Weigand does not possess temporal coercive authority.

The real threat at the present time is from the left which has been imposing litmus tests on members of certain religious faiths. Thus, one cannot be a fundamentalist and a member of a local civil rights commission. Can a devout Catholic become a federal judge? Wouldn't Democrat legislators find such religious belief a disability for judicial service? Wouldn't they insist on extracting from a judicial candidate a promise that would be contrary to the candidate's religious faith? Would anyone care? Would Lundstrom write an op-ed about religious freedom? The answers are probably obvious.

Second, private associations have a right to determine their membership. Admittedly, the rules aren't as loose for business associations and other public accommodations. Nonetheless, it is part of our liberty that religious groups get to determine the religious tests for membership. Bishop Weigand has absolute discretion to decide who gets communion in his diocese. That discretion is explicit in constitutional jurisprudence. The day he loses that discretion is the day that religious liberty ends. [Incidentally, he also has the right to say just about anything he wants. Typically, journalists would refer to opinion columns like that penned by Lundstrom as a "call for censorship," which, of course, it isn't because it doesn't involve state action. That fact notwithstanding, they would still talk pretentiously about "censorship."]

Third, look at the phrase "Last I looked, California voters chose a Democrat to run this state, not the Vatican." Last I looked, that kind of statement was a mainstay of Nativist bigots who feared that electing a Catholic president would mean turning the country over to the Pope. It took a long time to recognize the latent bigotry of that view.

Just a thought, wouldn't it be nice if people who get paid for their opinions actually took the time to learn something about (a) constitutional law, (b) history, or (c) the religious traditions of the group they are criticising before they spout off. It might make for more interesting reading and might help to advance public discussion. It might also make the writer look more informed and intelligent.

Again, just a thought.

The Real Peace Movement

The Jewish World Review relays the request of the Council of Torah Sages to make a February 20 a day of prayer:

Whatever your plans may be for the afternoon of Thursday, February 20, please set aside some time to help protect the civilized world and the Jewish people.