Error Theory

AP:

House Democratic leader Nancy Pelosi accused Bush of demonstrating a willingness [to] "exploit the sacred ground of 9/11, knowing that there is no connection between 9/11 and the war in Iraq."

She is one of many. These Democrat complaints are a crystal clear example of the legalistic approach to the war on terror that Karl Rove charged the Democrats with last week (causing front page squeals of protest across the country). Since we don't have grounds for indicting Saddam for 9/11, the Iraq war is not a legitimate response to 9/11, the left is asserting.

Conservatives, on the other hand, don't look at 9/11 as fodder for indictments, but as a declaration of war by stateless terrorists. Saddam may not have been involved in 9/11, but he was providing a haven for terrorists, and he had connections to many terrorist groups, including Al Qaeda. He was an avowed enemy of America who had long sought WMD and was refusing to submit to WMD inspections, as per the terms of the '91 cease fire agreement. He was the worst of the dictators who have been keeping the Arab world in its backwards, hateful condition, and the transformation of Iraq into a democracy with individual liberties (a republic) could end up changing the entire region. There were, as the Democrats would remember if they were not so busy trying not to, a whole litany of reasons for taking out Saddam, including, ironically, the purely legalistic reason that was the nominal causus belli of the war: Saddam's repeated refusals to abide by the terms of the 91 cease fire agreement.

Ed Morrissey explains the difference between the Democrats and President Bush on 9/11:

The dominant theme today will be the complaints that Bush exploited 9/11 -- complaints that will once again reveal how critics can't remember what 9/11 actually meant. It showed that we cannot afford to wait for terrorists to wave their flags and tell us where they are, because the only time they'll do that is when they're raising those flags over the ruins of American cities. That day taught us that we can no longer ignore serious threats like Saddam Hussein, especially in the Middle East.

Was Rove's poke last week just a jab? Did he know the Democrats would set themselves up by responding to the President's speech in legalistic fashion? Come on Rove, finish 'em off with the haymaker!

Powerline has a haymaker for Pelosi here.

Andrew McCarthy adds a compendium of Iraq/terrorism linkages.

Hugh's best line, about both the Democrats and the media:

The reason the media's reputation has in fact fallen off of the floor to even lower depths is because of the refusal to treat the war as a war rather than a political battle.

Spot on. I don't believe most Democrats actually are legalistic in their general outlook. For Clinton, legalism was an excuse to avoid a war he didn't want to fight, but when he finally did fight in Bosnia, Democrats had no qualms about pursuing war instead of just arrests. They are against war now primarily as a means of political opposition. If they succeed in losing the war politically it will be, as they like to say, "Bush's Vietnam." The consequence, they hope, will be the Republicans going down in flames, enabling the Democrats to rise. The consequences of losing a crucial battle in the war against Islamo-fascism never enters their calculations. Has the like of it ever been seen before?

Coming from a Democrat family, I had already become a straight line Republican voter before 1992, but in '92 I voted for Clinton because Bush Sr. was refusing to let the Bosnians arm themselves. Clinton was correctly calling this a travesty and promising to stop the genocide. When Clinton also refused to let the Bosnians arm themselves, I hated myself for being a dupe. By the time he finally got around to stopping the Serbs in Kosovo, he had proven himself the greatest enemy of gun rights in American history. On that grounds, I became a gung ho advocate of every investigation into his personal corruption, seeing anything that weakened Clinton as good for the protection the republic. But even though Kosovo was much more ambiguous and less compelling than Bosnia, I still thought the Serbs needed to be stopped there, and I cheered Clinton on for doing it. Similarly with his support for NAFTA and for welfare reform. My desire to see Clinton weakened did not extend to the irrational extreme of wanting to see him fail at the good things he was doing. The desire to see Clinton weakened was purely instrumental, in the service of the public interest. It could never be served by harm to the public interest.

I think this is how conservatives in general are. We judge issues on their merits, and favor or oppose the president's actions on their merits. We can see the value of infighting where it can serve to weaken an opposing president's power to do wrong, but that doesn't keep us from supporting him when he does right. Not so Democrats. They seem to represent pure ambition for power, unguided by any meaningful concept of the public interest. They criticize the President on legalistic grounds, not because they believe in these grounds (at least not to the brain damaged degree that they are pretending), but because these grounds offer a way to criticize the President. They are pure unhinged instrumentality, like a miser, or a Caesar, eagerly hoping to lose a war, if they think it will advance them over their domestic opposition.

By the thousands.

It is up to the Board of Selectmen of Weare New Hampshire whether to use the power of eminent domain, granted by the Supreme Court in last week's Kelo decision, to grant a petition to turn Justice Souter's house in Weare N.H. over to the would be developers of The Lost Liberty Hotel. The property has unique value in this use, since it is historically tied to a person directly responsible for our lost liberty.

I sent the Weare selectmen a simple message:

Subject: The lost liberty Hotel

Message: If you build it, we will come.

To: boardmembers@weare.nh.gov

Captain Ed notes that Mark Twain floated a similar proposal 120 years ago. The Lost Liberty Hotel is being proposed by one Logan Darrow Clements. Genetic memory?

Gay Patriot and others have rounded up Democrat quotes evidencing Rove's suggestion last Wednesday that: "liberals saw the savagery of the 9/11 attacks and wanted to prepare indictments and offer therapy and understanding for our attackers." (The GOP's supporting evidence here.)

Those are some excellent compendiums, but I haven't yet seen anyone cite what ought to be exhibit A: house minority leader Nancy Pelosi's loud demands, the day before Rove spoke, that prisoners at Guantanamo either be charged or freed:

Many of the detainees have been in U.S. custody since October 2001. Why have they been in custody for nearly four years without being charged? Why has so little been done to resolve the status of the detainees?

Because they are prisoners of war you ninny. In what war have prisoners of war ever been released before hostilities are ended? Ace of Spades had earlier noted the irony of Democrats who take this "charge 'em or release 'em line":

Liberals seem to have a curious position here.

Were these lawful combatants -- good soldiers, legal soldiers, honorable soldiers who'd just been captured as part of war -- they could of course not object to holding them for the duration of the war, as that would just be ridiculous. They know damn well we didn't just release good, honorable Nazi and Japanese soldiers until the war was over. (And neither did those countries release our boys, except for hardship cases and in prisoner exchanges.)

So... the weird thing is:

They are insisting we treat unlawful combatants and actual terrorists BETTER than we'd treat lawful soldiers.

But Pelosi's position is actually weirder still. Not only does she fully understand that prisoners of war are not released until hostilities are ended, but this is actually the basis for her contention that they should be released. She is trying to claim that the war IS over, at least in Afghanistan, and so those fighters captured in the Afghanistan theater should be charged or freed.

"The war to remove the Taliban government from power was over in 2001 and the president has said the mission was a success," said Jennifer Crider, Mrs. Pelosi's press secretary.

You know, like after we defeated the NAZI's in North Africa, we had to let all the German soldiers captured in North Africa go, because the war there was over. Don't you remember that?

Pelosi is not just being legalistic. She is being hyper-legalistic in arguing that the enemy should be freed to kill again. One could concievably take a hard line legalistic approach to the war on terror, wanting to find a way to make the legal system a realistic alternative to military action. Its a dumb idea, but one could take this legalistic approach without being on the side of the enemy. Pelosi, however, is just flat out on the side of the enemy and, within the legalistic approach, acts as their defense attorney, representing their interests exclusively, instead of the interests of the the American People who she is supposed to represent. Is it possible to go any lower?

Several of the most vexing problems we face in the war on terror have a ready solution. How to determine which battlefield detainees are fighters and which are innocents? How to know when captured fighters are giving reliable information? How to get information out of recalcitrant suspects without torturing them? How to distinguish honest members of the Iraqi defense forces from Baathist/terrorist infiltrators? Use brain scanning lie detection.

Brain researchers using PET scanners (Positron Emission Tomography) discovered years ago that recalling the truth and concocting a lie use very different parts of the brain and can be distinguished in a PET scan with a high degree of reliability. But PET scanning is not a very practical technology. It requires administering radioactive trace elements into the bloodstream in order to locate bloodflow in the brain (a proxy for brain activity). It is also expensive. The practical breakthrough was fMRI (functional Magnetic Resonance Imaging), which can map ordinary bloodflow, and is much cheaper. (See here.)

fMRI has been used to map brain activity for about five years. We could certainly be using it now in the war on terror. Questionees would not even have to open their mouths for us to get information out of them. Show them a picture of a face and fMRI will show whether there is a facial recognition response or not. But it is quite clear that we are not using this technology. If we were using it on anybody, we would certainly be using it on the “20th hijacker,” but the detailed Time Magazine account of 20th’s questioning seems to reveal that we are relying on air conditioners and Christine Aguilera music instead.

What sense does this make, when we have the technology to look directly inside of detainees’ brains? Possibly the Time Magazine leak was a ruse, but there would be no way to hide it if we were using fMRI to weed out infiltrators from the Iraqi Defense Forces, so we are certainly not doing what we could with the technology.

The only plausible explanation is that the Military is holding back because it knows that the Democrats and the ACLU would scream bloody murder, and the libertarian half of the conservative coalition might go berserk as well. Let’s clear the air then. Let’s clarify where right lies here, and urge our military to start using this necessary tool to win the war on terror, before a dozen nukes go off in American cities.

We don’t have to grapple with any thorny questions about the probative value of brain scanning evidence for criminal prosecutions. Criminal prosecutions are the Democrat approach to the war on terror, not the military approach. There is no need to go there. Brain scans are not going to be used in court in any immediate future. As for the justice of using it on detainees, it would allow the innocent to be released. Yes, there could be errors, and some innocents might scan out as fighters and not get released, but present safeguards would still be in place. Prisoner scans need only be conducted on prisoners: people who have been detained on the field of battle, and have gone before a military tribunal to determine that they have been properly detained (our present procedure). A 95% or 99% accurate way of distinguishing the fighters from the innocents would allow us to release a lot more of the innocents, which is obviously a huge improvement for the innocent.

What to do with Iraqi Defense Force applicants who scan out as infiltrators? Investigate, and only hold as prisoners of war or criminally prosecute those who are found by physical evidence to be involved in insurrection. No forcible application of fMRI would be involved. No one is forced to volunteer for the Iraqi Defense Force. Of course the infiltrators will quickly STOP volunteering, which achieves the primary objective.

Scanning all who are already in the defense forces and wish to retain their membership would also be volunteer. Any infiltrators would be free to quit rather get scanned. Whether quitting should be considered probable cause for forcing quitters to submit to scans is an interesting question. One can actually make a logical civil rights argument that they should not be. There certainly is no logical argument until that point is reached.

Our military should not be afraid of this debate. Libertarians may have paranoid instincts, but what distinguishes them from Democrats is that they are logical. TRUST the conservative coalition. Everybody is sane. The military should just do what it needs to do. Let the Democrats try to make a stink. They will be charging into concertina wire. At every point the logic will cut against them. Once enmeshed, they will have to try to extricate themselves, or spend the last of their force.

As advancing technology brings weapons of mass destruction within the grasp of ever smaller groups and even individuals, brain scanning lie detection will soon enough have to be applied universally if civilization is to survive. For those who want to look ahead, I have written extensively on how we can unleash law enforcement to the permanent extremes necessary to make use of techniques like universal brain search, while greatly INCREASING protection for individual liberty. Just protect liberty directly rather than indirectly. Don’t tie the hands of the police. Specify what is not to be criminalized. Then no matter what the police do, no one will ever be prosecuted for anything that no one should be prosecuted for. I am writing a book on the subject now. You can read an article on it here.

Don't miss Kung Fu Hustle. A lot of reviews are calling it a Kung Fu spoof. WRONG. You think at first that it must be a spoof. How else to account for the loony tunes action sequences you see? A seemingly normal person person falls three stories, gets spun like a helicopter blade by a flagstick on the way down, has his head smashed by a following flowerpot, and emerges unhurt. A pathetic wannabe gangster who can't handle a knife without stabbing himself gets chased down the road by a fishwife at road-runner speeds. What else could it be BUT a spoof? It is like the Three Stooges. Moe hits Curly on the head with an axe, they both look agape at the mangled axe-blade, which makes Moe even madder, and Curly runs a way from him in a circle with one stiff leg, "woo-woo-wooh-wooo." But the genius of Kung Fu Hustle is that it is NOT a spoof. As the movie goes on, you realize that everything that is happening is real, that it's about real heroes and real bad guys and impossibly lost souls.

Its real world universe is the universe of the Gong Fu classics, epitomized by Jin Yong's Condor Heroes and Return of the Condor Heroes, where initiates start out to discover the ways of "chi" ("the force") and are led into the arcane world of ever more powerful Gong Fu masters. The difference with Kung Fu Hustle is that the viewer is dumped into the middle of this universe with no initiation, and so it all looks like a joke, until you realize it is not. Any reviewer who can leave the movie still thinking it is a spoof gets zero stars.

Also worth noting: the grotesquely venal Axe Gang is an obvious reference to the Communists, and if the Jin Yong tradition is taken as a guide, the death-crazy Beast is Mao. The conquering hero is quite explicitly Bhuddist (the light side of the force, lit by the light of moral comprehension). Altogether a fabulous story, with fabulous Kung Fu masters. Only what is with the falling down pants? Please don't tell me that Chinese pop culture is importing the absolute worst of black prison gang culture.

Judge Hellerstein’s June 1st order for the Department of Defense to release all Abu Ghraib photos and videos to the ACLU is now available online. On the basis of Hellerstein’s earlier rulings, my previous post surmised that Hellerstein was placing Congress’ views about what is and is not a matter of military necessity, and his own views of what is and is not a matter of military necessity, over the president’s views of what is a matter of military necessity (in contravention of the Constitution, which leaves it to the president to decide HOW to fight a war). Hellerstein’s latest confirms this surmise.

The key fact about the latest ruling is that it does not include an opinion. The implication is that it is relying on the two earlier opinions that Hellerstein wrote for this case. This is most strange, because the earlier opinions only pressed for the FOIA requested documents to be brought before the court, so that the court could address the substantive questions of national security that the documents raise and determine whether the documents can be released. Now Hellerstein has ordered the documents released without saying a word about the substantive issues. How can this be?

Hellerstein has pulled a bait and switch. The arguments that he used to compel that documents be brought before the court are by implication being used to compel release of the documents. Not that he has been completely dishonest about this. His first Opinion and Order (September 15th, 2005) foreshadowed this intention, and laid out Hellerstein’s argument on the substantive issues, even though they were not then before the court.

The September opinion (at p. 5) noted that the Department of Defense was claiming exemption from the ACLU’s document request under part (b), paragraph (1) of the Freedom of Information Act (FOIA, 5 U.S.C § 552). (b)(1) allows the executive to withhold any information that it classifies as secret for purposes of national defense. This section of FOIA properly defers to the president’s war powers. It does not try to define for the executive what is and is not a matter of national security.

Hellerstein, however, insisted that he couldn’t assess the executive’s claims that documents were being classified for national defense purposes without seeing the documents himself. In other words, he was claiming (in contrast to the wording of (b)(1)) that classification by the executive is not itself enough, but that he, Hellerstein, had to oversee this classification and verify that it satisfies his own judgment of what needs to be kept secret as a matter of national security.

Hellerstein then spells out (at p. 6) his criterion of oversight: “If documents are more of an embarrassment than a secret, the people should know of our government’s treatment of individuals captured and held abroad.” In other words, Hellerstein is asserting from the bench a distinction between public relations and war, a distinction which is oblivious to reality, when we are in the midst of a war that depends crucially on public relations. Hellerstein next cites the Supreme Court’s opinion in United States v. Robel, 389 U.S. 258, 264 (1967), that:

Implicit in the term ‘national defense’ is the notion of defending those values and ideals which set this Nation apart.

He then notes on his own that: “We are a nation that strives to value the dignity of all humanity.” Ergo, anything that an activist judge deems to be undignified (war?) cannot be a matter of national security!

FOIA does not itself set out any criteria for second guessing the executive’s judgment about what needs to be kept secret for purposes of national defense. Hellerstein has taken this entirely on himself and come up with the most fantastic criterion of judgment. Anything Hellerstein finds undignified is not a matter of national security! Is there even a logical relation between these two quantities? I believe there SHOULD be some court oversight of (b)(1) classifications, to make sure that the executive is not being plainly unreasonable in its claims to national defense secrets in an effort to evade the law, but any such oversight must respect the president’s war powers. It is not given to the courts to determine what is a matter of military necessity, or even to Congress. This is the president’s call, especially in time of war. To respect that presidential power, oversight must be limited only to blocking clearly unreasonable claims to military necessity.

Hellerstein’s foray in September into criteria for deciding what is and is not a matter of national defense is just obiter dicta, not relevant to his order, which was that documents be brought before the court for scrutiny. Only after the documents were produced in court would Hellerstein actually apply judgment about whether the documents were exempt under (b)(1). Now that he has ordered the documents released without opinion, the implication is that this dicta from the September ruling has become ruling opinion. Hellerstein laid out in September the grounds on which he would reject DOD’s (b)(1) exemption claims and now, without further comment, he has rejected DOD’s (b)(1) exemption claims.

Very sneaky. Make sweeping assertions of judicial power to decide what is and is not a matter of military necessity in a ruling where these assertions can slide by because they do not actually do any work, then invoke them later by implication.


The February ruling
Hellerstein’s February 2nd Opinion and Order is a travesty in a different way. After Hellerstein very questionably claimed judicial oversight in September and ordered DOD to bring responsive documents to court, DOD went to plan b, invoking The CIA Information Act (50 U.S.C, §431), which exempts the CIA from revealing even a list of what documents exist, so long as the documents are “operational” materials, related to ongoing operations. Since the documents requested by the ACLU are operational, DOD hoped it could use the CIA Information Act to avoid having to identify the documents in court.

Hellerstein (at p. 9) notes that the Information Act requires the director of the CIA to apply for the allowed exemption. Since this statutory step was not taken, Hellerstein ruled that the Act could not be applied and DOD would have to produce the documents. As in the September ruling, Hellerstein then goes on (pages 9 and 10) to suggest how he will likely rule once the documents are brought before him. The FOIA exemption that the CIA Information Act offers for “operational” materials includes an exception if the materials are relevant to a federal investigation of wrongdoing. Since DOD has been investigating wrongdoing at Guantanamo, the FOIA exemption does not apply. Thus, Hellerstein suggests, he will not be allowing the DOD to withhold any docs from the ACLU on Information Act grounds.

Notice that the exception to the Information Act’s “operational materials” exemption expresses CONGRESS’ opinion of what should and should not be kept secret as a matter of national security. Congress for some reason decided that anything that has the least taint of wrongdoing must be open to America's enemies. Maybe that is why the Constitution leaves it up to the president to be the ultimate arbiter of these things. Because the the Constitution gives it most directly to the executive to determine what is and is not a matter of national security, Hellerstein’s application of statutory law (FOIA and the Information Act) to the DOD’s national security claims in time of war should address the contest between Congress' and the president’s war powers. Instead, Hellerstein only attends to the two congressional statutes, FOIA and the CIA Information Act.

The single consistency throughout all of Hellerstein’s rulings is his refusal to recognize any executive war powers. Even when Congress makes explicit provision for the president to decide what needs to be kept secret for national security, in FOIA (b)(1), Hellerstein jumps in and asserts that he is going to decide for himself what is a matter of national security. In the process, he examples why it isn't a good idea for Judges to try to make national security decisions. If YOU were going to set a criterion for deciding what is a matter of national security, would you come up with “dignity”?

After Hellerstein shot down the DOD’s bid to use the CIA Information Act as grounds for not bringing documents to court, the DOD knuckled under and brought the documents to court. By ordering the docs released, Hellerstein implicitly invoked both of the separate grounds that he had laid out in September and February for ruling against the DOD on the substantive question of whether the docs should be handed over to the ACLU.

In ruling against the DOD’s claim of FOIA (b)(1) exemption, Hellerstein is implicitly invoking his September argument that nothing he, Hellerstein himself, finds “undignified” could possibly be a matter of national security. Here he is placing the judiciary above the executive as a determiner of the requirements of national security. In ruling against the DOD’s “operational materials” claim to FOIA exemption, he is implicitly invoking the exception that Congress built into its Information Act exemption. Here he is placing Congress above the executive as a determiner of the requirements of national security.

Both of these rulings are contrary to Constitution’s clear allocation of war powers to the executive. Worst is the assertion of Judicial primacy. At least Congress is considered to be one of the “war-fighting” branches. It declares and funds the wars that the executive fights, and it did a reasonable job of leaving it up to the executive to determine defense issues in FOIA. The judiciary, in contrast, is not a “war fighting” branch at all. For Hellerstein to set himself up as the arbiter of what is a matter of national defense is a usurpation of presidential power and a perversion of the Constitution.

We elect our presidents to command our war efforts for us. For a judge to usurp presidential power is one of the gravest crimes that can be committed against the republic.

ACLU has additional documents here.