Ultra Vires

The Root of the Problem in Iraq

This terrific analysis of the Messopotamia is the best I've read in months. Swartz is right: the new Iraqi government not only isn't sovereign, but also shows no prospect of becoming so. I analyzed this problem myself when I wrote about the decentralized and fragmented judicial structure set up in the interim Iraqi constitution. It is almost impossible to tell how a writ would run and from who by reading the IC. But Swartz is on to a much more important angle: the government has no independent power to enforce the writs. Unless a government can create a dependence in its population on its ability to enforce its commands and the judgments that stem from them, a government has no chance at all of claiming sovereignity. The present government in Iraq cannot create that dependence and neither can the occupation forces. This is a recipe for disaster and a sure indication that my initial misgivings about the Iraqi courts were, if anything, too sanguine by half. The most troubling aspect of this situation is that if it persists it will virtually guarantee the division of the country, probably into Kurdistan and a perrenially destablized rump Iraq. A return to military dictatorship, this time of the Zia-ul-Haq variety, and continuous interference by the U.S. would be almost assured for what is left of Iraq.

Too bad, that. It will take a lot of blood to "solve" this problem.

- Tracy Lightcap

Hilzoy Scares Me. Again.

Ok, I knew they were incompetent. I knew they lied through their teeth. I knew they were irresponsible. I knew they didn't really care one way or the other about making policy that has a snowball's chance in Hell of working.

Still, this post over at the Dangerous Kitty is down right scary. It is truly depressing to think of how much this particular snafu will add to the already staggering inefficiencies in our health care "system". What's scary, however, is that this might actually have been the objective all along. When you think of this in combo with the HSAs, it might be that the Bushistas are trying to create both unsustainable inefficiencies in government health care programs while at the same time giving businesses an out on their insurance costs. Since the net result of both will be even more inefficient delivery systems then we now have, support for any socialization of health costs would collapse even further.

I don't like sounding like a conspiracy theorist, but the Pubs, quite rightly, have seen nationalized health care as the stake in their collective hearts from the get-go. I'm not sure that the administration put together this program for the reasons given above, but I am pretty sure that they saw this as a possible outcome and were not greatly disturbed. That's enough to get me breathing faster then usual.

- Tracy Lightcap

As If Wounded Knee Wasn't Bad Enough ...

Well, of course, ripping off American Indians has been a national sport since before the founding of the republic. But this really does bring the whole process into the modern era. Here we find Indian tribes not just defrauded by Abramoff and co., but shafted by - who else? - American energy corporations. I'm with Digby; everyone needs to read the linked posts here. The level of sleaze is truely shocking.

It is also good to know that someone at the NYT has kept the Iron Law of Investigative Reporting in mind: "Follow the money and, if you come upon a bigger chunk of money in the process, follow that!" Let's hope this effort doesn't fall on rocky ground.

- Tracy Lightcap

Damnit! (I guess)

Ok. Like I've said here before, I'm slowly working up the schwerpunkt to do a paper on torture. The basis for it is a comparison of "extreme techniques" in interrogation by the U.S. in Iraq and the NKVD during the Great Terror. The "torture table", as I've nicknamed it, is the central piece to establish the comparison. It has some empty cells yet.

But apparently not for long. Every time I turn around new evidence that we used similar methods crops up. One of the blanks was the incarceration of family members to intimidate those under question. Tonight there was a news report on it and on a secret U.S. army unit charged with carrying out the needed abductions.

I don't relish having such good evidence for my work.

Damnit. Damnit. Damnit.

- Tracy Lightcap

Well! That Explains a Lot.

I've been working on a paper and had a problem. How could I compare the actions of a political elite in an authoritarian society (the CC of the CPSU(B) from 1929 - 37, if you must know) with the actions of an elite in a democratic one (Congress during the last 5 years)? Obviously, thought I, the institutional constraints in a working democracy would insure that members of Congress would be far more independent and less compliant than the CC! Then, during a revision of my latest, I read this paper.

We expect members of Congress to be mainly concerned with re-election. Re-election in the past has required some hard choices, something no elected politician likes. Those choices have usually involved managing debts by deciding on priorities in government taxing and spending. This is no longer the case and I have to give the Bush administration credit for seeing it.

As long as the central banks of other countries buy - and don't call in - our debts, there is no reason, in the short run (i.e. the only run that counts for elected politicians), for Congress in a undivided and ideologically coherent government to exercise its legislative or oversight powers to control executive action. Having our deficits financed by foreign entities gives the Bush administration all the advantages of governments in "developing" countries that are held aloft by international agencies with none of the consequences. The President can refrain from vetoing legislation and insure that the pork is delivered. Tax cuts can be legislated during a time of war. The financing of political campaigns can be tied more closely to delivered legislative benefits than any time since the Harding administration. And all - all - without ever having to force a distasteful choice on the electorate or a discouraging word from Congress.

Now, throw in the threats of electoral retaliation against recalcitrant members of the majority from the White House and the leadership of Congress. Complete the mix with a strong dose of fears concerning both national security and re-election prospects. Result: acceptance and reinforcement of extensions of executive power.

Or, short Tracy, could we find, in a democratic society, situations where executive dominance could reach levels that free the executive, at least for short periods, from the institutional constraints on executive action that bound it even during similar undeclared wars in the past?

You bet your bippy.

- Tracy Lightcap

Hmmmmm.

One wonders whether our favorite "Republican by day, Democrat by night", Senator Lindsay Graham, has decided - as a former JAG type, he would know - that the ACLU is going to get ahold of the Abu Ghraib materials after all. That would explain this, a very neat blindside tackle on the Gitmo detainees use of the federal courts. Needless to say, I think the chances of appealing the actions of the Special Revolutionary - sorry, the Military - tribunals - would go up considerable in the, shall we say, heated public atmosphere following the release of those videos. I'm not looking forward to that, but I've got a feeling it'll happen.

- Tracy Lightcap

The Central Problem

Mark Schmitt puts his finger on the main problem with the Bush administration, a situation that affects every concern we have here. We are mainly interested in how courts are used by governments to legitimize commands, but within that I think all my colleagues here would say that there is an underlying assumption that government institutions will be limited by popular opinion. I won't presume to present their views in detail, but I would bet that they, like me, think that when the government decides to use courts as a thumb considerations of public reaction will limit how hard that thumb presses down.

But what if that doesn't happen? What if the idea of "governing from the center" has been replaced by governing to win elections that will convey control of government institutions, including courts, to facilitate policy decisions that don't have majority support? And, even worse, what if this kind of political strategy migrates to both parties, as it already surely has? We've seen some evidence recently that courts, as well as other institutions, tend to follow political trends in the general electorate, but most of that research looks so yesterday in the present environment. If courts get populated with judges who have specific policy agendas involving anti-majoritarian programs - that's what the Federalist Society is trying to create, after all - and governments are willing to use them, then the idea of judicial independence and of a check on the "popular branches" could go south pretty quickly. Think the Mexican Supreme Court under the PRI.

- Tracy Lightcap

The Bard of the Booboisie

Normally, I wouldn't draw notice to a piece of polemic criticism here. Ultra Vires has a very specific purpose and polemics doesn't fit with it too well. But, let's face it, there is a lack of really well-written, really scathing criticism in America today. However, this demolition of Victor Davis Hanson shows that Mencken's spirit is alive and well. It is the best piece of critical writing I've read since Colin Leys's famous destruction of Samuel Huntington's Political Order in Changing Societies. How well written! How well deserved!

Now if we could only get Werther to identify him/herself ...

- Tracy Lightcap