Re: Yoo Memo

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I'm not sure how I feel about academic freedom as it applies to firing Yoo from his Berkeley job for moral turpitude

Flying People's Justice Tribunals would solve a lot of these dilemmas. They could purchase carbon offsets with funds liberated from the criminals.


Posted by: minneapolitan | Link to this comment | 04- 2-08 5:33 AM
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I imagine he'll be harassed into quitting.

Does he at least cite Youngstown in that memo? I'm pretty sure he was aware of the case.


Posted by: Ugh | Link to this comment | 04- 2-08 5:39 AM
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My favorite part is still where Congress can't use its authority to "make Rules for the Government and Regulation of the land and naval Forces" where that might inconvenience the C-in-C. I missed entirely the part where Congress can't "make Rules concerning Captures on Land and Water" that might impinge on the C-in-C's desires.

It takes a special kind of denial to make the Framer's Executive into Charles I.


Posted by: Nápi | Link to this comment | 04- 2-08 5:44 AM
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Yeah. The whole "the words 'Commander in Chief' must be read as 'person with absolutely untrammeled power in any arguably military context'" argument is so freakishly wrong. Even the soft version, where you'll get people saying that obviously Congress can't interfere with strategic war-fighting decisions, is completely baseless. "Rules for the Government and Regulation" are "Rules"; there's no limit on what those "Rules" may be.


Posted by: LizardBreath | Link to this comment | 04- 2-08 5:49 AM
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Whatever happened to the canon of interpretation that the specific (like "make Rules") trumps the general (like "Commander in Chief")?


Posted by: LizardBreath | Link to this comment | 04- 2-08 5:51 AM
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No wait, my favorite part is where Congress can't create military commissions. His reliance on Quirin wasn't impressive. Compare

It is unnecessary for present purposes to determine to what extent the President as Commander in Chief has constitutional power to create military commissions without the support of Congressional legislation. For here Congress has authorized trial of offenses against the law of war before such commissions. We are concerned only with the question whether it is within the constitutional power of the national government to place petitioners upon trial before a military commission for the offenses with which they are charged

with

It might be thought that Congress could enact legislation that regulated the conduct of interrogations under its authority to "make Rules for the Government and Regulation of the land and naval Forces." U.S. Const art. I, § 8, cl. 14. The question whether Congress could use this power to regulate military commissions was identified and reserved by the Supreme Court. ExParte Quirin, 317 U.S. 1,29 (1942). Our Office has determined that Congress cannot exercise its ,authority to make rules for the Armed Forces to regulate military commissions.

Can the man fucking read?


Posted by: Nápi | Link to this comment | 04- 2-08 5:54 AM
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Yoo was the nerd who all of a sudden got to play with the cool kids. In order to make sure he wasn't rejected he had to constantly go farther than anyone else would to show how cool he was.

A friend of mine in law school used to refer to him as "the sausage" due to his body shape.


Posted by: Ugh | Link to this comment | 04- 2-08 5:56 AM
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Oh and Ugh, no cite to Youngstown. In an analysis of separation of powers. That's an F on a con law exam.

In 6, if it isn't clear, the first quote is from Quirin, the second Yoo relying on Quirin. Not that it isn't readily apparent, on style alone, that we're dealing with very different levels of talent.

I had the same impression when I saw the 2002 torture memo: if I got something like that from a first year associate, I'd just give it back.


Posted by: Nápi | Link to this comment | 04- 2-08 6:02 AM
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Napi - it's a classic example of starting with your conclusion and then casting about for some reasoning to support it (I think that's how Lederman or Balkin described it when they saw one of the first memos).

I guess teaching Con Law I out of Chemerinsky's hornbook didn't rub off on Yoo.


Posted by: Ugh | Link to this comment | 04- 2-08 6:09 AM
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Yeah. It doesn't read like serious legal work, it reads like someone trying to convince non-lawyers that legal work has been done.


Posted by: LizardBreath | Link to this comment | 04- 2-08 6:09 AM
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Hey, I've got no problem with starting with the conclusion and then finding some law and argument for it. That's how I write briefs. Where it becomes truly crappy lawyering is where the law cited doesn't actually support the point made. Where you have to have string cites of out-of-context quotes, or, better yet, outright fabrication of the law (e.g. Quirin) to make the point.

Ugh, you should send a letter to Boalt demanding a refund.


Posted by: Nápi | Link to this comment | 04- 2-08 6:12 AM
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Ugh, you should send a letter to Boalt demanding a refund.

I always wanted to ask him "you didn't mention the glorious powers of the executive when you were teaching Con Law I to 1Ls, and yet here they are for the Bush administration, so, were you grossly incompetent as a law professor or as Deputy Assistant Attorney General?"


Posted by: Ugh | Link to this comment | 04- 2-08 6:19 AM
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I think I have recounted once before in this forum the story about encountering a acquaintance (Con Law professor) back in the early days of the Bush administration (pre-9/11), when Yoo had just been appointed to his position at the DOJ. I remarked to my friend that Yoo had made it big, and he got deathly serious and said, "You know that John has gone over to the dark side, don't you? I have an awful feeling that he is going to do real damage to the Republic."

I didn't understand at all at the time, but in retrospect it was eerily prescient.


Posted by: Knecht Ruprecht | Link to this comment | 04- 2-08 6:37 AM
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This seems like trying to shame tobacco company scientists who prove no link between cigarettes and lung cancer. They're not going to suddenly break down and cry, "Oh my God, what have I become? A dishonest lying hack? Please forgive me!"


Posted by: Barbar | Link to this comment | 04- 2-08 6:38 AM
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Does a memo like this have any real legal standing? Will some lawyer in a future admin cite it as support for their argument, or does it just have the goalpost shifting effect it's already had on the torture debate in america?


Posted by: tw | Link to this comment | 04- 2-08 6:39 AM
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One more, then I'll resume my actual life. For the non-lawyers (if any) and those not reading the memos. I looked more closely at his use of Quirin because I'm quite familiar with the case, and I haven't looked at his use of any other authority. I've no doubt, though, that it is as sloppy. You can tell, because the right way to write the memo on C-in-C preemption, to the extent it exists, is to take the cases where the Court has struck down a statute, discuss the facts and the content of the statute, and exactly how the Court came to find the statute inapplicable. Yoo doesn't attempt the actual lawyer's analysis, so you can't even tell if there is a legitimate argument to make.

On the Quirin point, though, his error is actually pretty serious. He says that the Court reserved the question whether Congress could get ahead of the President, when in fact the Court reserved the question whether the President could get ahead of Congress. Correctly stating this issue destroys Yoo's entire constitutional analysis.

No wonder they kept the thing secret for 5 years.


Posted by: Nápi | Link to this comment | 04- 2-08 6:40 AM
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Does a memo like this have any real legal standing?

In the circus of tautological reasoning that characterized the administration's legal framework, the opinions of the OLC are the supreme law of the land for all practical purposes. That is, they are binding on the executive branch, and they cannot be challenged in any forum (because no one has standing to sue, and if someone perchance does, the government may at its sole discretion prevent the suit from going forward by claiming state secrets privilege).


Posted by: Knecht Ruprecht | Link to this comment | 04- 2-08 6:45 AM
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Does anyone have a link for the analysis someone once wrote about how Yoo advocated diametrically opposing views of Presidential power during the Clinton administration?

I can't decide whether the fact that Yoo is apparently making these arguments in utter bad faith is an exculpatory or an aggravating factor in his loathesomeness.


Posted by: Knecht Ruprecht | Link to this comment | 04- 2-08 6:51 AM
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17 -- Unless they're bringing you to trial. I still don't understand why the government went all the way to the Supreme Court with Salim Hamdan. Maybe some of the folks over there believed in this tripe.

The precedential force of this memo, in the wake of Hamdan, is considerably less than it would have been. Which isn't much, given Goldsmith's reaction to it.


Posted by: Napi | Link to this comment | 04- 2-08 6:55 AM
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As much as possible, whatever the Bush administration has done since 9/11 has been put outside the bounds of law. The rejection of treaties and international law, the defiance of Congress, the courts, and traditional procedures, the choice of Guantanamo because it's not U.S. territory and not governed by American law, signing statements, increased secrecy, the PATRIOT Act, the interpretation of war powers, and so on.

McManus says that procedural liberalism is a joke and, given its almost total failure to respond to outright defiance, who can be sure that he's wrong?

I read a couple books about the Strauss-Schmitt relationship awhile back, and they were pretty eye-opening. The two of them agreed that liberalism and the rule of law were problems, not solutions, and both apparently believed in an absolutely unrestricted executive power. Apparently the American political tradition was to them just so much silliness, though as a Nazi Schmitt could be more open about this -- Strauss had a hard row to hoe, though he was triumphantly successful.

Looking at Bush's behaviors, it even looks as though Strauss (with his necessary accomodations to the American tradition) was the surrogate, and that the neocons really ended up following Schmitt. The unitary executive looks pretty Schmittian to me.


Posted by: John Emerson | Link to this comment | 04- 2-08 7:04 AM
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This seems like trying to shame tobacco company scientists who prove no link between cigarettes and lung cancer.

Right. It's like talking about "intelligence failures" in the runup to Iraq. Any CIA analyst can find the right information. It takes a special sort to be able to come up with total bullshit on demand.


Posted by: politicalfootball | Link to this comment | 04- 2-08 7:04 AM
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I've been working on the theory that both lawyers and economists are nothing but brilliant mercenary advocates willing to sell their expertise to whoever can pay. It seems to be very difficult to get disbarred from either profession, especially economics. I don't recall stories of biologists or physicists or mathematicians using their status, credentials, and position to justify corrupt misrepresentations of their sciences, but economists and lawyers seem to do it all the time.


Posted by: John Emerson | Link to this comment | 04- 2-08 7:09 AM
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Scientists working for tobacco or energy companies seem unlikely to be either lawyers or economists. Also seems like a bit of a stretch to consider someone like Yoo a damning indictment of the legal profession in general, never mind [unspecified economist].


Posted by: Barbar | Link to this comment | 04- 2-08 7:12 AM
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McManus says that procedural liberalism is a joke and, given its almost total failure to respond to outright defiance, who can be sure that he's wrong?

Insofar as it has worked to constrain this administration, he's 100% right, though I'm not certain whether the blame more fairly lies with procedural liberalism per se, or the Democratic Party as it's currently composed.


Posted by: apostropher | Link to this comment | 04- 2-08 7:14 AM
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Procedural liberalism is, tautologically, impotent without power. That's no reason to deny it power.

I've not understood the argument for the alternative. If one is going to adopt left fascism, isn't one faced with the huge risk that among fascisms, people will prefer the variety that gets the trains running on time?


Posted by: Napi | Link to this comment | 04- 2-08 7:14 AM
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Insofar as it has worked to constrain this administration, he's 100% right, though I'm not certain whether the blame more fairly lies with procedural liberalism per se, or the Democratic Party as it's currently composed.

IOW, "Procedural liberalism didn't fail, it was never really tried."


Posted by: Knecht Ruprecht | Link to this comment | 04- 2-08 7:23 AM
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22: Cf. the expert witness and think-tank racket for biology, climate science, psychology, medicine, etc. (not physics/math), but that's still a strong minority for those professions.


Posted by: Minivet | Link to this comment | 04- 2-08 7:23 AM
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You're probably right, John. If I didn't have a conflict, and if he paid in advance, I'd represent Yoo in, say, the suit brought by Jose Padilla.

He can't pay me enough to respect him as a lawyer.


Posted by: Napi | Link to this comment | 04- 2-08 7:26 AM
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It doesn't read like serious legal work, it reads like someone trying to convince non-lawyers that legal work has been done.

Mutatis mutandis, this phrase could stand in for almost everything this adminstration has touched.

25: Indeed. Why go with fascist-lite when you can have the real thing?


Posted by: Cala | Link to this comment | 04- 2-08 7:34 AM
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As far as I know, tobacco company biologists end their scientific careers when they choose that kind of work, whereas quite eminent lawyers and economists have dirty hands.

I'm thinking of Mukasey and Mankiw at the moment, but with a few days research I could come up with a much longer list. In econ, Merton, Scholes, Schleifer all have messy stuff on their vitas, and two of them are Nobelists and Shleifer is top rank.


Posted by: John Emerson | Link to this comment | 04- 2-08 7:35 AM
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A high proportion of what Bush has done has been exactly the kind of thing the Constitution and Declaration of Independence were directed against. All the safeguards failed.

The Democrats, all of the Republicans, and most of the media have to be blamed. Republicans have been especially nasty. They use every legal and procedural trick in the book completely cynically against Democrats, and cave in completely on exactly the same issues when a Republican is in power. Look at even Chafee. He resisted very feebly while he was in office, and then wrote a sort of OK book once he was just an ordinary citizen with no leverage. And in the book he blamed Democrats as much as he could. (And he was right about the Democrats, but the piece of shit should have looked at himself a little more closely.)

Being a cynic isn't warm and fuzzy, but you frequently do find your world view validated.


Posted by: John Emerson | Link to this comment | 04- 2-08 7:44 AM
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Well, maybe not.


Posted by: Napi | Link to this comment | 04- 2-08 7:45 AM
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What has Mankiw done that's so unacceptable (beyond being a Republican)?

Scholes was busted for using an illegal tax shelter, but I'm not sure that has anything to do with his economics/finance credentials.

What did Merton do again? I feel like we always have this discussion.

Shleifer may be a good case for your point, especially since his ethical/legal problems are mixed in with his area of expertise.

I'm also struggling to see the exact parallel between a scientist using his scientific expertise to promote anti-scientific claims... and what the economist guys have done.


Posted by: Barbar | Link to this comment | 04- 2-08 7:49 AM
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Further to 26, every sympathetic critic of procedural liberalism has understood that it cannot survive a corrupt or cowering judiciary.

I suspect that a fair number of judges, possibly even some GWB appointees, have regrets about their complicity in arrogating unreviewable power to the executive.


Posted by: Knecht Ruprecht | Link to this comment | 04- 2-08 7:49 AM
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IOW, "Procedural liberalism didn't fail, it was never really tried."

No, Apo's right. Procedural systems require a bedrock of substance on which to sit. The problem of late has been a lack of Dem politicians willing to recognize a line that cannot be crossed simply because it is the line that cannot be crossed. It's that unwillingness to make substantive commitments that has been a problem--perhaps because Dems were unsure of their national strength, perhaps because they confused themselves into believing that purely technocratic solutions existed--but that is, I think, changing.


Posted by: SomeCallMeTim | Link to this comment | 04- 2-08 7:51 AM
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From his wiki page, it looks like Merton's most controversial moment was advocating that stock options be treated as expenses. Looks like good stuff to me.


Posted by: Barbar | Link to this comment | 04- 2-08 7:54 AM
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I doubt I can improve on what TPM reader K.M. said.

For a minute I thought K.M. was unfogged's own Katherine, but then I realized the initials don't match.


Posted by: Knecht Ruprecht | Link to this comment | 04- 2-08 7:54 AM
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Merton and Scholes were the pseudo-Nobelist directors of a failed company whose shady practices put it in the Enron category. They seem to have been absolved, and the collective memory seems to have been purged.

A normal businessman involved in LTCM would have a big black spot on his record. The consensus seems to be that the Bank of Sweden pseudo-Nobel absolves them, whereas my opinion is that Merton and Scholes tarnish the award.


Posted by: John Emerson | Link to this comment | 04- 2-08 7:54 AM
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Lots of people have regrets after the fact.


Posted by: John Emerson | Link to this comment | 04- 2-08 7:55 AM
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Merton's son was a pretty nice guy.


Posted by: Sifu Tweety | Link to this comment | 04- 2-08 7:59 AM
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Merton's father codified the notion of self-fulfilling and self-defeating prophecies (as well as that of the normalization of deviance), both of which have a certain applicability in the world of credit crises.


Posted by: Gonerill | Link to this comment | 04- 2-08 8:06 AM
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LTCM was an investment fund that really really rich people gave a lot of money to, so that they could get even richer. It worked for a while, then it collapsed. The non-academics who work at these places do fine as well; you may have read about John Meriwether from a handful of books about dramatic finance busts.

If you have a few hundred million dollars sitting around that you want to invest, it's really your choice whether you think Nobel Prize-winning Merton and Scholes are a good set of people to have manage your money. I don't see how their academic accomplishments are affected at all. Does biology have to take back the Nobel Prize from James Watson because he thinks black people are stupid?


Posted by: Barbar | Link to this comment | 04- 2-08 8:10 AM
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I blame society. No, really.


Posted by: Flippanter | Link to this comment | 04- 2-08 8:12 AM
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Well, I tried to convince Brad DeLong to commence to forming an angry mob.

All the bad things you can say about the legal profession aside (I think advocating for whoever pays in court is quite, quite different from what Yoo did, but it does contribute to a justice system that systematically favors the rich & powerful over the poor), lawyers mounted a more effective and forceful opposition to this stuff than the Democratic party.


Posted by: Katherine | Link to this comment | 04- 2-08 8:17 AM
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The analogy between LTCM and Enron isn't appropriate at all, BTW.


Posted by: Barbar | Link to this comment | 04- 2-08 8:24 AM
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44: That's right. In the end, it has been left to lawyers almost alone to defend the law, just as the professional military is one of our only restraints against more foreign adventurism, and intelligence professionals are left on their own to defend the integrity of their findings.

That's not enough, God knows, but thank god somebody is sticking up for sanity.


Posted by: politicalfootball | Link to this comment | 04- 2-08 8:26 AM
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A normal businessman involved in LTCM would have a big black spot on his record.

You're kidding, right? Checked to see what Michael Milken's been up to lately?


Posted by: Josh | Link to this comment | 04- 2-08 8:31 AM
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The analogy between LTCM and Enron isn't appropriate at all, BTW.

Barbar beat me to the punch, there. Apart from the fact that both were phenomenally large financial collapses, there is no comparison. Enron was fraud on top of deception on top of self-dealing, combined with an excessive amount of leverage. LTCM was hubris on top of overconfidence on top of error, combined with an excessive amount of leverage.


Posted by: Knecht Ruprecht | Link to this comment | 04- 2-08 8:37 AM
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31
A high proportion of what Bush has done has been exactly the kind of thing the Constitution and Declaration of Independence were directed against. All the safeguards failed.

I agree with the first sentence. As for failure, though, it reminds me of that quote attributed to Winston Churchill. "Democracy is the worst form of government except for all those others that have been tried." In this case, substitute "America's style of procedural liberalism," whatever about our country makes it distinctive from those in other countries, for "democracy."

America has had one civil war, two presidents that were impeached, another who avoided it only by resigning, and Bush, who probably should get impeached but won't. In the same time, France has gone through something like five republics, two empires and a dictatorship, most of which had pretty bloody transitions. It has also had heads of government who were pretty corrupt, although I don't know if any of them were corrupt in ways that struck at the principles of French government. I'm far from an expert, but I think France's history is closer to the norm than ours.

I agree that the current situation is a failure of America's safeguards, I just think that doesn't mean much without the context of how well or poorly other safeguards have performed.


Posted by: Cyrus | Link to this comment | 04- 2-08 8:42 AM
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You're kidding, right? Checked to see what Michael Milken's been up to lately?

A billionaire investor like Milken isn't a normal businessman, because he isn't beholden to his reputation. He can always put cash on the barrelhead. Something like this is a much better example of failing upwards as a normal businessman.


Posted by: snarkout | Link to this comment | 04- 2-08 8:42 AM
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25: Actually, it's something of a myth that fascism got the trains running on time.

Procedural liberalism has failed because its foundations were fatally undermined. When all your politicians are beholden to war profiteering, then surprise!, rigging up a closed society whose ultimate purpose is war profiteering gets a lot easier. It also helps if your citizens' sense of political involvement and responsibility is so rotted by consumerism and alienated by high-powered corporate lobbying that the most ambitious measure they can imagine taking against a scumbag like Yoo is "shunning."


Posted by: DS | Link to this comment | 04- 2-08 8:44 AM
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A billionaire investor like Milken isn't a normal businessman, because he isn't beholden to his reputation.

Well, I was taking "normal businessman" to mean "non-academic". But yeah, it's not like there aren't plenty of other examples of people who've failed utterly in one venture getting opportunities again and again and again.


Posted by: Josh | Link to this comment | 04- 2-08 8:46 AM
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It isn't just power. Procedural liberalism also requires a culture or habitus, a residual sense of shame, guilt and sin at transgressing its boundaries as well as a positive professional ethos that is actively maintained.

So yes, it can be destroyed by those who are willing to absolutely trash its culture, by those who will not defend its culture, and by a lack of power to make its cultural commitments have some teeth or binding force.

How this differs from any other arrangement of or pathway towards the Good Society I'm not entirely clear. Even the McManus vision of taking people out behind the sheds and shooting them and using their skulls to pave the way towards the glorious revolution requires some meticulousness about shooting only those who deserve to be shot, not to mention some care to actually make a Good Society once you're done getting rid of all the bad mans. For those not taking notes in the 20th Century, there isn't much evidence that this kind of meticulousness is usually observed once the bullets start flying.

Making things work is always fragile. Malevolent people can break fragile things quite easily once they take the bit in their mouth and decide to do so, and people of good will and intent can be surprisingly impotent and baffled when they're confronted with such determination, often rising to defend what was precious only well after it is almost or entirely lost.


Posted by: Timothy Burke | Link to this comment | 04- 2-08 8:49 AM
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18: I think you mean this (which I can't find a complete version of online). There is some stuff that looks diametrically opposed (speaking of "costs to the Constitution" and "undermin[ing] notions of democratic accountability and respect for the rule of law"!). But Yoo's view was sufficiently fucked up even in 2000: much of his criticism of the Clinton administration, I think, was that it had merely disregarded the War Powers Act, rather than publicly and openly rejecting it as an impermissible restraint.

In other words, no need to ascribe Yoo's views to partisanship, we can stick with plain old moral bankruptcy.


Posted by: potchkeh | Link to this comment | 04- 2-08 8:50 AM
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So the liberal position is hesitant to call for Yoo's firing? A leftist can wish for him to take a dive into a shallow pool, right?


Posted by: gswift | Link to this comment | 04- 2-08 8:50 AM
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It also helps if your citizens' sense of political involvement and responsibility is so rotted by consumerism and alienated by high-powered corporate lobbying that the most ambitious measure they can imagine taking against a scumbag like Yoo is "shunning."

One problem is that most Americans don't really understand the idea of a crime or wrongdoing that doesn't directly involve violence or personally taking someone's property.

If you tried to explain what Yoo did wrong to an average American, you would have to begin by saying "he wrote a memo." And at that point, you have lost your audience. Ninety percent of America will not care.

You'd have far more luck stirring up resentment for Yoo based on his race than anything he has actually done wrong.


Posted by: rob helpy-chalk | Link to this comment | 04- 2-08 8:52 AM
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If you tried to explain what Yoo did wrong to an average American, you would have to begin by saying "he wrote a memo."

"He gave the President the go-ahead to order the American military to break American law and ignore the Geneva Conventions that protect our troops from war crimes trials."


Posted by: snarkout | Link to this comment | 04- 2-08 8:54 AM
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If you tried to explain what Yoo did wrong to an average American, you would have to begin by saying "he wrote a memo." And at that point, you have lost your audience. Ninety percent of America will not care.

As is so often the case, the necessary conceptual vocabulary can be found in a German compound noun: a Schreibtischtäter ("desk criminal") is a well-understood concept in post-war Germany, for obvious reasons.


Posted by: Knecht Ruprecht | Link to this comment | 04- 2-08 8:57 AM
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"So the liberal position is hesitant to call for Yoo's firing?"

No. Not this liberal.


Posted by: Katherine | Link to this comment | 04- 2-08 8:57 AM
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As the official spokesperson for liberalism, I demand Yoo's firing. As a procedural liberal, I demand a procedure by which we can determine that Yoo should be taken out behind the shed and shot.


Posted by: Walt Someguy | Link to this comment | 04- 2-08 8:58 AM
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Schreibtischtäter

Mmm, desk potatoes.


Posted by: Josh | Link to this comment | 04- 2-08 8:59 AM
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At this point, it isn't surprising, but no less disheartening to learn that the only difference between John Yoo, one of the President's key advisers, and Adam Yoshida, maniacal blogger, is that the former has a few more years of education.


Posted by: Populuxe | Link to this comment | 04- 2-08 8:59 AM
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"Ninety percent of America will not care."

False, I think. I think 20%+ of America already cares. I get so sick of these generalizations. Sometimes they're justified, but sometimes it's just a lazy assumption of the worst.


Posted by: Katherine | Link to this comment | 04- 2-08 9:00 AM
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I don't see how their academic accomplishments are affected at all. Does biology have to take back the Nobel Prize from James Watson because he thinks black people are stupid?

You didn't need to make that argument, since you didn't grant that there was anything wrong with anything LTCM or Merton-Scholes did. But it's not a good argument, since Watson is only accused of expressing an opinion, whereas Merton was accused, by me, of involvement in unethical practices. And a judgment was brought against LTCM for a form of fraud.

I'm not proposing that Merton lose his Bank of Sweden prize at all. I'm just saying that the Bank of Sweden prize is smirched.

And Milliken is doing fine. All finance crooks do fine once they get out of jail. Ethics is not part of that business. But Merton doesn't even have an asterisk on his name.


Posted by: John Emerson | Link to this comment | 04- 2-08 9:00 AM
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62: Yoo's not Canadian, is he?


Posted by: Josh | Link to this comment | 04- 2-08 9:01 AM
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Yes he is.


Posted by: mano negra | Link to this comment | 04- 2-08 9:03 AM
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Wait, I don't know where I got that idea from. I really did think he was Canadian. Someone is, anyway.


Posted by: mano negra | Link to this comment | 04- 2-08 9:04 AM
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I demand Yoo's firing out of a cannon.

#65. I suppose that would be difference, too--if I saw Canadianness.


Posted by: Populuxe | Link to this comment | 04- 2-08 9:05 AM
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56 is interesting, though I think most people understand fraud as well. I think most see lying in solemn circumstances to be serious; there would probably be a way to convey that he violated the sanctity of his office by saying things that he knew weren't true. That is, there might be a way to translate this that would sink in, but not for television. My favorite distillation is that real wars end with treaties, but the metaphorical wars don't, so the broad powers needed in a real war don't transfer to the war on drugs.

It doesn't help that GWB has run the government like a family business, preferring loyalty over competency. I started yelling at the TV the other night when he explained "freedom brings peace" in a commercial-break soundbite. I hope the crackers in PA vote for Obama.


Posted by: lw | Link to this comment | 04- 2-08 9:06 AM
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You were thinking of Mary Catherine.

Or maybe Frum.


Posted by: John Emerson | Link to this comment | 04- 2-08 9:08 AM
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It doesn't help that GWB has run the government like a family business crime family.

Bartcop has been talking about the Bush Crime Family since about 1999. People used to think that it was intended as hyperbole.

Best political site on the web, at least until he went all Hillary all the time.


Posted by: John Emerson | Link to this comment | 04- 2-08 9:15 AM
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I'd like to see Yoo disbarred, then fired.

We've nurtured the conceit that the profession of law is self-regulating, that State bar associations can and will act to protect the public against bad lawyers. Yoo is either incompetent, acted in bad faith, or both. Those are grounds for disbarment.

Once disbarred, UC would be in a much better position to fire him. How can you keep someone teaching law when their fitness to practice has been formally shown to be lacking?


Posted by: Michael H Schneider | Link to this comment | 04- 2-08 9:20 AM
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What does it take for a shmuck like this to get disbarred?


Posted by: Jackmormon | Link to this comment | 04- 2-08 9:26 AM
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Oh hey, pwned.


Posted by: Jackmormon | Link to this comment | 04- 2-08 9:27 AM
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I would certainly like to see law schools have sufficient respect for the subject matter and the profession to not regard any fucking thing that anybody says about "the law" qualify them to teach it. Meaning yes, I think he should never have been hired and that he should be fired. I think any law school that thinks that John Yoo is qualified to teach law should be one whose graduates are not considered eligible to practice law.


Posted by: Timothy Burke | Link to this comment | 04- 2-08 9:30 AM
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Was Bill Clinton disbarred? Or just stripped of his ability to argue before the Supreme Court? Hasn't the press been saying that Spitzer is almost certain to be disbarred?

Whose willing to suck off Yoo for the good of the country?


Posted by: oudemia | Link to this comment | 04- 2-08 9:30 AM
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56, 57: The Washington Post and New York Times both took a crack at it. I have a lot of problems with these opening paragraphs. The biggest problem, I think, is the absence of the word "torture." Yoo's memo clearly OK'd torture. I don't think that's even debateable.

The NYT, at least, described the victims as "detainees" instead of the Post's "al Qaeda captives."

Here's how the NYT explained it:

WASHINGTON -- The Justice Department in 2003 gave military interrogators broad authority to use extreme methods in questioning detainees and argued that wartime powers largely exempted interrogators from laws banning harsh treatment, according to a memorandum publicly disclosed on Tuesday.

And here's the Washington Post:

The Justice Department sent a legal memorandum to the Pentagon in 2003 asserting that federal laws prohibiting assault, maiming and other crimes did not apply to military interrogators who questioned al-Qaeda captives because the president's ultimate authority as commander in chief overrode such statutes.

Posted by: politicalfootball | Link to this comment | 04- 2-08 9:30 AM
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Um . . . WHO'S (dammit).


Posted by: oudemia | Link to this comment | 04- 2-08 9:31 AM
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Was Bill Clinton disbarred?

I thought he was. But then he and Spitser were both up against defined criminal statutes. Yoo is guilty of being evil, but the law is going to have a helluva time catching up to his misdeeds.


Posted by: Jackmormon | Link to this comment | 04- 2-08 9:32 AM
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But not if you serviced him, JM. Come on.


Posted by: oudemia | Link to this comment | 04- 2-08 9:34 AM
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If you tried to explain what Yoo did wrong to an average American, you would have to begin by saying "he wrote a memo." And at that point, you have lost your audience. Ninety percent of America will not care.

I disagree. A substantial majority of Americans hate and fear anybody literate enough to write a memo about anything.


Posted by: Flippanter | Link to this comment | 04- 2-08 9:40 AM
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Further to 77: I think it's a very hopeful sign that the Post put this at the top of the front page in its print edition. I don't have the print Times, nor do I have any other newspapers, but the fact that this constitutes big news to the media elite is extremely encouraging.

After all, we all knew the content of this memo - this could have been passed off as "old news."


Posted by: politicalfootball | Link to this comment | 04- 2-08 9:40 AM
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oudemia, there's been such a glut of blowjob scandals recently that I fear my sacrifice would go almost unremarked. Perhaps if ogged were to volunteer?


Posted by: Jackmormon | Link to this comment | 04- 2-08 9:41 AM
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And a judgment was brought against LTCM for a form of fraud.

Right, the tax shelter thing I mentioned above.

Scholes set up a really complex tax shelter to save $100 million in taxes.

The government smacked that down. I think they added $40 million in fines.

We're not close to Enron territory here.

And you want to an asterisk next to Merton's name, and yet you can't name anything he's done wrong.


Posted by: Barbar | Link to this comment | 04- 2-08 9:43 AM
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76: Yes, though not permanently, just for five years.


Posted by: Minivet | Link to this comment | 04- 2-08 9:44 AM
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Perhaps if ogged were to volunteer?

Very nice! Yoo's secret Mussulman love slave!


Posted by: oudemia | Link to this comment | 04- 2-08 9:46 AM
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85: um... wouldn't it start to hurt?


Posted by: Barbar | Link to this comment | 04- 2-08 9:48 AM
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87: Not with seekrit Mussulman techniques.


Posted by: Minivet | Link to this comment | 04- 2-08 9:50 AM
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Perhaps it is wishful thinking, but it seems to me that an argument could be made for Gitmo. If the Geneva Conventions define lawful combatants, then surely there are unlawful combatants to which the Conventions do not apply, but are not necessarily "criminals". The default is not then "civilian". I know that LB posits that the detainees are therefore criminals, to be given the same rights as other criminals, but that rings false also. Yoo obviously was not up to the challenge of clearly outlining what the detainees are. As for the "extreme methods" of interrogation, that shit should never be officially authorized.


Posted by: Tassled Loafered Leech | Link to this comment | 04- 2-08 9:54 AM
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Perhaps it is wishful thinking

Perhaps.

but that rings false also

Nonsense.


Posted by: Sifu Tweety | Link to this comment | 04- 2-08 9:55 AM
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How can you keep someone teaching law when their fitness to practice has been formally shown to be lacking?

Easy. Those who can't do, teach.


Posted by: peter | Link to this comment | 04- 2-08 9:58 AM
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surely there are unlawful combatants to which the Conventions do not apply

Mercenaries in the employ of and not part of the military of an occupying power, for example. Are you sure you want to do this?


Posted by: lw | Link to this comment | 04- 2-08 9:59 AM
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Yoo The Bush Administration obviously was not up to the challenge of clearly outlining what the detainees are dealing with illegal combatants in a lawful manner.


Posted by: Flippanter | Link to this comment | 04- 2-08 9:59 AM
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An argument could be made?
Attention must be paid?

I'm not quite sure what you mean by "an argument could be made for Gitmo", but charitably, I'll read as saying that it sure woulda been nice if someone intelligent and full of ethics had been the one writing memos rather than someone whose express purpose was to ensure that detainees landed in a gray area so his boss wouldn't have to be accountable. (I do think you have to read unlawful combatant as 'criminals', and even if you deny that, it's a long walk from there to 'if we round you up by mistake when you're 14, we don't need to release you, ever')


Posted by: Cala | Link to this comment | 04- 2-08 10:00 AM
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I guess the Protocols to the Geneva Conventions would apply, but don't since the US hasn't ratified them.


Posted by: Minivet | Link to this comment | 04- 2-08 10:01 AM
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It strikes me that being a director of a failed $5 billion get-rich-quick scheme that had to be bailed out is asterisk-worthy, given that it had fraudulent side.

I'm not claiming that economists are worse than businessmen, politicians, and lawyers, just that they're a lot like them. All these groups have rather minimal and weakly-enforced ethical rules.

And then there's Greenspan.


Posted by: John Emerson | Link to this comment | 04- 2-08 10:01 AM
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Heh. I think that Blackwater a a specific exemption from prosecution in Iraq. Mercs generally are not treated well when the junta they are protecting falls. Part of the cost of doing business.


Posted by: Tassled Loafered Leech | Link to this comment | 04- 2-08 10:03 AM
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If the Geneva Conventions define lawful combatants, then surely there are unlawful combatants to which the Conventions do not apply, but are not necessarily "criminals". The default is not then "civilian".

As Yoo would be the first to explain to you, TLL, the default here is "Wookie."


Posted by: Populuxe | Link to this comment | 04- 2-08 10:03 AM
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I agree with 93. There is a way to do this right, and it is not being done because of misguided direction from the top.


Posted by: Tassled Loafered Leech | Link to this comment | 04- 2-08 10:07 AM
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It strikes me that being a director of a failed $5 billion get-rich-quick scheme that had to be bailed out is asterisk-worthy, given that it had fraudulent side.

All investment funds with the potential to fail are get-rich-quick schemes, by your measure. The fraudulent side (tax shelter) had nothing to do with the business plan or the failure of the enterprise, as I explained above.

Are you really the same person who couldn't understand how an abstinence program at Harvard could possibly have a connection to other abstinence programs across the country?


Posted by: | Link to this comment | 04- 2-08 10:07 AM
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If the Geneva Conventions define lawful combatants, then surely there are unlawful combatants to which the Conventions do not apply, but are not necessarily "criminals". The default is not then "civilian".

In real life, AFAICT, an "unlawful combatant" is someone who does something that would in ordinary terms be illegal, like a civilian who shoots a passing soldier.

The civilian can be tried by a military commission, BUT that commission has to be a regularly constituted one, i.e., the same kind that the soldier himself would have faced had *he* done something against the laws of war.

That does not include kangaroo-court commissions with special rules exclusively for trying specified "unlawful combatants."


Posted by: Anderson | Link to this comment | 04- 2-08 10:08 AM
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There is no such thing as "unlawful combatants" under Geneva, as far as combatants go, there are only lawful combatants, and combatants that have committed war-crimes. There is no legal difference between a member of the Sunni insurgency who isn't bearing arms openly while engaged combat operations, and say an American Soldier caught by our enimies looting, that doesn't mean you can torture them, it just means you can try them for the criminal offenses they committed. Really, Geneva is not very complicated at all on this issue. It just isn't convenient for governments who want to commit torture, since it's specifically forbidden.


Posted by: Asteele | Link to this comment | 04- 2-08 10:10 AM
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"If the Geneva Conventions define lawful combatants, then surely there are unlawful combatants to which the Conventions do not apply, but are not necessarily "criminals"

A lot of U.S. contractors in Iraq have shot & killed people--including civilians--and participated in the interrogation, and in some cases torture, of prisoner. There is a much stronger argument that civilian contractors who take part in combat are not lawful combatants than that Taliban privates are. Are you prepared to concede that it is legitimate for every U.S. contractor in Iraq to be placed beyond the protection of the Geneva Conventions if he falls into enemy hands? Keep in mind that we're not just talking about armed contractors; plenty of people in GTMO were found to be "enemy combatants" for peeling potatoes & contributing to the wrong charity & so forth. Keep in mind that we're actually talking about anyone who looks like a U.S. contractor & who Al Qaida in Iraq claims is a U.S. contractor, even if they're actually an aide worker or journalist or what have you, because we know that there were actual innocent civilians in GTMO, & there was no serious attempt to determine guilt or innocence before they were categorized as "unlawful combatants" unprotected by Geneva.

I realize that insurgents do not, in fact, treat captive contractors as being protected by any law. But is that legitimate? If not, it's no more legitimate for the U.S. to do it.


Posted by: Katherine | Link to this comment | 04- 2-08 10:11 AM
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Blackwater

US law, Iraqi law (passed by who, exactly? When are laws passed by wartime "legislators" internationally binding?), or international law?

Less murkily, Blackwater enforced a no-camera rule while patrolling New Orleans after Katrina. Whose responsibility should it have been to prosecute that one?


Posted by: lw | Link to this comment | 04- 2-08 10:11 AM
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102. No, it depends. If the civilian meets the requirements for being a combatant (say spontaneously taking up arms to defend his country from an invasion) he is a regular combatant, and must be treated like a POW. If he isn't, not part of an organized militia or resistance group or other armed party, he is a regular criminal, presumably guilty of attempted murder, and you can detain him and put him on trial. It is incumbent of occupying powers to have functioning legal systems for the people they are occupying, something which we did never achieve in Iraq.


Posted by: Asteele | Link to this comment | 04- 2-08 10:16 AM
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55
So the liberal position is hesitant to call for Yoo's firing? A leftist can wish for him to take a dive into a shallow pool, right?

As another official spokesperson for liberalism, assuming he has tenure and assuming that means what I think it means, I don't demand Yoo's firing at all. However, I highly recommend that the department stops letting him teach classes, or if they can't, that his classes get scheduled for 5 a.m.; and that anyone charged with a crime against Yoo or his property gets the minimum sentence allowed by law. Tenure is meant to provide intellectual and academic freedom, right? Fine, so his employer can't fire him for his academic and intellectual beliefs. That's all they can't do.

67: I really did think he was Canadian. Someone is, anyway.

Indeed. I blame Jim Carrey for the current state of American politics.


Posted by: Cyrus | Link to this comment | 04- 2-08 10:18 AM
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53:For the record, I'm just more Hobbesian than Kantian, meaning I don't think we can enlighten and educate the barbarians, but need an actual sovereign with enforcement/coercion powers. And some carrots. Kant & Rawls are just fucked up.

The goal is a regime based on the post-WWII Conventions, and more, with Int'l enforcement powers. Now in a nuclear age, military theats are not persuasive against the OECD, but every day in the globalized world, trade & economic organizations like the WTO become more credible as coercive mechanisms. A Neo-Angellism World-at-Peace will not be a natural, organic, non-confrontational development

What I am hearing from the other side, like K and T Burke, is not realistic. The next administration, a change of judges, a gradual evolution in attitudes:whatever fricking plan they think they have is not supported by history or any reasonable.
The Law does not support itself, and legitimacy is more exogenous than endogenous. Southern chattel slavery was enabled by those who dealt with slavers.

Oh yeah, Gandhi and MLK were fools, also. And we may be about to get another idealist in the WH. It takes guns and butter, not a big smile, hugs, and pretty oratory.

I would like Obama to surrender full sovereignty to the UN, ICC, whomever. "Whatever ya say, dudes."
Supposedly, we did some of that after WWII. Time to double up. Why the fuck not?


Posted by: bob mcmanus | Link to this comment | 04- 2-08 10:18 AM
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there are only lawful combatants, and combatants that have committed war-crimes.

The lawful combatants are pretty well defined. So everyone else is a war criminal? That seems overly broad, and does not address Cala's 14 year old captured on the battlefield, or swept up in a raid. That is the point of the commissions, to sort out who is who. I suppose that there are those who are captured that are "war criminals", but of such low rank or threat that they could be safely released.


Posted by: Tassled Loafered Leech | Link to this comment | 04- 2-08 10:18 AM
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What "unlawful combatant" means (the real term is "unprivileged belligerent") is that you don't get combatant immunity as a POW & can be tried for your violations of ordinary domestic laws. A lot of things that soldiers do would be crimes under the law of whatever country they're fighting in, if they were not POWs.


Posted by: Katherine | Link to this comment | 04- 2-08 10:20 AM
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89: I believe you're right as a legal matter - unlawful combatants don't have rights under the Geneva Conventions. They may have other rights, or other crimes, and usually get treated as criminals, war criminals, or spies.

Traditionally, on prudential, moral, or diplomatic grounds, the US policy was to extend the protections of the conventions anyway. "We don't torture" is a slogan worth keeping - or recreating, now.

There is a decent line of argument that treats the conventions as pseudo-contractarian - we treat you humanely because you act in a way to make war less generally unpleasant, i.e. by wearing uniforms to distinguish yourself from civilians so we know who to shoot and who not to.

There are, to my ear, better arguments to be made either that war is cruelty, and not to be refined, or that some things we simply should not do.

As a side note on Milken, whose situation I know a little better than some of the others mentioned - I have never understood his case. He was, legitimately, a very, very able businessman. The fraud was so small in comparison to what he was making legally... and yet he did it.

His post-release life has been a relatively graceful second act, though.


Posted by: HC | Link to this comment | 04- 2-08 10:20 AM
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||

Can anybody tell me the difference between a charge of "Felony Assault with a Deadly Weapon" and "Attempted Murder"? Why would a prosecutor charge one vs. the other? If you, like, kick somebody with a shod foot, it's the former, right? Could it also be an attack with a knife or gun? Is this usually prosecuted more like simple assault, or is it way more serious than that?

This is not for me! Don't worry! Ol' Unconditional Surrender isn't in any trouble.

|>


Posted by: Ulysses S. Grant | Link to this comment | 04- 2-08 10:21 AM
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100: I said that the abstinece program at Harvard should be judged on what it actually did, and that a program promoting abstinence as an option for adults was different than a federal program imposing abstinence-only teaching on the public schools, or church groups and families imposing abstinence-only on dependent and basically unfree middle-schoolers and high school students. I also pointed out that the Harvard program was doing nothing to restrict access to contreception to anyone, contrary to what everyone said about them.

So LTCM, Merton, and Scholes are all clean as a whistle, and not only by the standards of economics and finance, but by normal standards?

Did LTCM have the potential to fail? My udnerstanding is that they were too big to let fail.


Posted by: John Emerson | Link to this comment | 04- 2-08 10:22 AM
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"That is the point of the commissions, to sort out who is who. "

What commissions? The commissions that the overwhelming majority of prisoners have never gotten? Or the kangaroo court CSRTs? Or are you just sort of saying "hey, GTMO could be justified" without actually investigating whether it is or listening to people who have looked into it?


Posted by: Katherine | Link to this comment | 04- 2-08 10:23 AM
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Combatants who violate the laws of war are war-criminals. Other people who commit crimes are civilian criminals. It really isn't that complicated. What is somewhat more important, as it goes to why the Bush Admin engaged in these various evasions, is that there is no class of detainees that you can subject to abusive treatment. To the extent that there are really difficult issues here, the Bush administration was not in good faith trying to grapple with them. It was looking for an excuse to torture.


Posted by: Asteele | Link to this comment | 04- 2-08 10:25 AM
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I would like Obama to surrender full sovereignty to the UN, ICC, whomever. "Whatever ya say, dudes."

Bob's tough-minded realism is intimidating. The rest of us are so airy-fairy and wishful.


Posted by: John Emerson | Link to this comment | 04- 2-08 10:26 AM
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107:but need an actual sovereign with enforcement/coercion powers

Does this mean you agree with the Yoo memoranda?


Posted by: peep | Link to this comment | 04- 2-08 10:26 AM
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As far as I am concerned, K & T Burke and Ezra and MY and the rest are somewhere between sticking flowers in gun muzzles and rewriting the War Powers Act. You'd think something might been learned from Iraq and Yoo, but apparently not.

People and societies change when they're forced to, not when they want to.


Posted by: bob mcmanus | Link to this comment | 04- 2-08 10:26 AM
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Bob, I don't think the ICC has the sort of viceroy program you're imagining.


Posted by: Flippanter | Link to this comment | 04- 2-08 10:27 AM
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To the extent that there are really difficult issues here, the Bush administration was not in good faith trying to grapple with them.

Now there's a phrase that deserves an "INSERT - AUTOTEXT" field in MS Word 2009, if not a full-fledged keyboard shortcut.


Posted by: Knecht Ruprecht | Link to this comment | 04- 2-08 10:27 AM
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Perhaps it is wishful thinking, but it seems to me that an argument could be made for Gitmo. If the Geneva Conventions define lawful combatants, then surely there are unlawful combatants to which the Conventions do not apply, but are not necessarily "criminals".

Yes, this argument can be made, and in fact it is often the argument that is made by people who want to justify the way things have been done since 2001.

To sustain it, however, you have to believe that there is a category of persons who are entitled to fewer protections than those usually granted to criminals. The 'unlawful combatant' argument contains an implicit ranking of those are believed to have engaged in violence:

1. Lawful combatants. If captured, these are granted immunity from prosecution for acts of violence committed in connection with hostilities between powers, but are detained until hostilities cease.

2. Suspected criminals. If captured, these are prosecuted for any acts of violence not in connection with hostilities between powers.

3. 'Unlawful combatants'. If captured, these are dealt with as the detaining power wishes.

Those who have not engaged in violence (or who have not committed some non-violent crime) are not detained unless for their own safety or unless some extraordinary situation requires it. They are not put on trial.

I think it can fairly be argued that, between the non-violent and categories 1 & 2 above, the entire population of a contested territory is covered. Category 3 is redundant and - many would say, including myself - kind of nasty.


Posted by: Charlie | Link to this comment | 04- 2-08 10:30 AM
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I favor daisies, impeachment, firing, investigation & prosecution.


Posted by: Katherine | Link to this comment | 04- 2-08 10:30 AM
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116:Yoo just picked the wrong sovereign. The Geneva Hague Torture Conventions override any domestic law or interests.

No liberal should disagree.


Posted by: bob mcmanus | Link to this comment | 04- 2-08 10:31 AM
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What "unlawful combatant" means (the real term is "unprivileged belligerent") is that you don't get combatant immunity as a POW & can be tried for your violations of ordinary domestic laws. A lot of things that soldiers do would be crimes under the law of whatever country they're fighting in, if they were not POWs.

IANAL, but this gets it right. Most things done in war are illegal normally: the soldier can blow up buildings, invade homes, kill other soldiers, and none of the usual legal words apply. The soldier gets treated as a POW, not as an arsonist, burglar, or murderer.

An unlawful combatant is just someone who doesn't get those privileges. Suppose a guy murders a soldier in a bar. But that doesn't mean we can do whatever; it just means he doesn't get to claim POW and can be prosecuted for murder.

The distinction does allow for the fourteen-year-old in my example; either he's part of a resistance movement, and he's a POW, or he's not, and he gets a trial. The distinction doesn't allow the administration to hold him indefinitely without evidence or a hearing, but that's not a bug.


Posted by: Cala | Link to this comment | 04- 2-08 10:33 AM
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110. Emphatically no, unprivileged belligerents (I don't like using Unlawful Combatant because it doesn't appear in the conventions.) do have rights under Geneva. Specifically they have the right to be treated as a POW until a competent tribunal (that at least meets minimum levels of due process) finds otherwise, afterwards they lose their POW rights but still must be "treated with humanity and, in case of trial, shall not be deprived of the rights of fair and regular trial".

Once again, this really isn't very complicated.


Posted by: Asteele | Link to this comment | 04- 2-08 10:33 AM
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K and Burke seem to be arguing that US Law and procedures should suffice, if only followed faithfully and enforced.

I not only think that argument is ineffective but theoretically pernicious and destructive. US Law should be irrelevant.


Posted by: bob mcmanus | Link to this comment | 04- 2-08 10:35 AM
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125: nope! They should, but they haven't & won't be. And even if there were prosecutorial will, we seem to have given the executive the power to make the Nuremberg defense work if he launders it through the OLC. I'm fine with international prosecution. Universal jurisdiction is a more likely bet than the ICC, I think; I'm fine with either.

Don't worry, though, I'm sure you can find another reason to make this thread part 100 of the endless series, "Katherine and Tim Burke are personifications of everything wrong with procedural liberalism". Eyes on the prize. But I have to work.


Posted by: Katherine | Link to this comment | 04- 2-08 10:40 AM
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125: Geneva expressly provides for applying domestic law.


Posted by: Anderson | Link to this comment | 04- 2-08 10:40 AM
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I not only think that argument is ineffective but theoretically pernicious and destructive. US Law should be irrelevant.

I don't follow. Would the international law, whatever it is, and procedures suffice, if only followed faithfully and enforced? Is that proposition neither ineffective nor pernicious?


Posted by: Flippanter | Link to this comment | 04- 2-08 10:40 AM
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When procedural liberals committed to civility try to confront lawless usurpers, the usurpers will always treat the confrontation as an act of war. But procedural liberals are civil, not warlike, and are completely unable to respond to the usurpers' warlike response.

I've seen explanations of this kind for the failures of the Social Democrats and other European centrists between the two wars. They just didn't know how to deal with lawlessness. Often lawless, authoritarian anti-liberals take particular glee in using liberals' legalism against them.

A lot of the media noise coming from the Bush administration, the Republicans, and their surrogates in the media (Limbaugh, Savage, Morgan, Coulter, Beck) warns liberals and Democrats of exactly that: resistance is an act of war (on al Qaeda's side). And Democrats are intimidated.

So, maybe MacManus is right. ut militarily, liberals don't have the beans.

The gambling Bennett talked about cultural civil war decades ago. It wasn't as metaphorical as people thought.

I recently read that Melanie Morgan's husband and boss at KSFO (and Michael Savage's boss) describes himself as an ALCU liberal who ants all voices to be heard. Enough said.


Posted by: John Emerson | Link to this comment | 04- 2-08 10:42 AM
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So LTCM, Merton, and Scholes are all clean as a whistle, and not only by the standards of economics and finance, but by normal standards?

Did LTCM have the potential to fail? My udnerstanding is that they were too big to let fail.

LTCM did, in fact, fail.

Scholes tried to create a questionable tax shelter and got busted.

Merton didn't do anything wrong, as far as I know (and as far as you've been able to point out). Investors take risks in return for potential profit. Losing money is not a crime, even by normal standards. He wasn't running grandpa's retirement fund.


Posted by: | Link to this comment | 04- 2-08 10:47 AM
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123

"The distinction does allow for the fourteen-year-old in my example; either he's part of a resistance movement, and he's a POW, or he's not, and he gets a trial. The distinction doesn't allow the administration to hold him indefinitely without evidence or a hearing, but that's not a bug."

This makes no sense to me, why should being an unlawful combatant give you more rights than a POW who can be detained indefinitely without trial. The 3 categories in 120 make sense to me.


Posted by: James B. Shearer | Link to this comment | 04- 2-08 10:48 AM
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So Scholes is the only tainted Nobelist? My mistake was naming Merton?


Posted by: John Emerson | Link to this comment | 04- 2-08 10:51 AM
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131.
It doesn't, you not allowed to sanction POWs criminally for attacking your troops. Unprivileged belligerents can be executed if local laws allow, of course to do this, you have to put them on trial first, you know to *prove* their really unprivileged belligerents, and not random people. If you don't want to go through the bother, you can hold them as POWs instead. (under Geneva, US law may or may not let you this)



Posted by: Asteele | Link to this comment | 04- 2-08 10:53 AM
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128:The actual practice will surely often be inadequate.

But in fucking principle, Yoo, Bush, SCOTUS, or Katherine and whomever should not have the power and right to determine domestically what torture is or is not. We settled that at Nuremberg.

These are not questions of domestic law.

Now why a broader & more inclusive democracy (The World, rather than Paraguay) would in theory & practice be more just and legitimate is another question. This is, I suppose, Rawlsian, the more participants, the better VoI. Where I disagree with Rawls is on his later Int'l politics, which I think was too close to Kant's ideas of sovereignty.


Posted by: bob mcmanus | Link to this comment | 04- 2-08 10:54 AM
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133

"... Unprivileged belligerents can be executed if local laws allow, of course to do this, you have to put them on trial first, you know to *prove* their really unprivileged belligerents, and not random people ..."

I don't think local laws are relevant, what if local laws don't protect foreign soldiers?


Posted by: James B. Shearer | Link to this comment | 04- 2-08 11:05 AM
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My mistake was naming Merton?

Your mistakes were in believing that the rules really matter, and in hostility to free markets. John, ambitious brilliant people in every field are often unpleasant careerists. Sometimes this leads to clear violations of strict rules (coauthoring a paper with fudged results, setting up a bogus tax shelter). More often it leads to a person who produces brilliant work also being megalomaniacal, cruel to professional enemies, and petty about power and recognition. This doesn't excuse breaking the definite rules, but it weakens the association that being a rulebreaker is a taint-- breaking a rule is a public stain, but in many cases the private stains covered by omerta are much, much worse.


Posted by: lw | Link to this comment | 04- 2-08 11:05 AM
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135. Soldiers are not unprivileged belligerents.


Posted by: Asteele | Link to this comment | 04- 2-08 11:08 AM
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63: My 56 was an outburst of pessimism and dispair, of the sort that I am extremely prone to make, but trying to free myself of. I retract it.

There is what they call a performative contradiction between dismissive attitudes about people's intellegence and my job as teacher. I really need to watch it.


Posted by: rob helpy-chalk | Link to this comment | 04- 2-08 11:10 AM
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To the extent that there are really difficult issues here, the Bush administration was not in good faith trying to grapple with them.

I am afraid that the current administration felt that this would all be over before they had to think about it too hard. Get it done, and move on. As they say, the enemy gets a vote, too.


Posted by: Tassled Loafered Leech | Link to this comment | 04- 2-08 11:17 AM
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135: More to the point, what if there is no local law, whether because the locality is unclaimed territory or due to the absence of an effective sovereign?


Posted by: Flippanter | Link to this comment | 04- 2-08 11:19 AM
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I said that the abstinece program at Harvard should be judged on what it actually did, and that a program promoting abstinence as an option for adults was different than a federal program imposing abstinence-only teaching on the public schools, or church groups and families imposing abstinence-only on dependent and basically unfree middle-schoolers and high school students. I also pointed out that the Harvard program was doing nothing to restrict access to contreception to anyone, contrary to what everyone said about them.

This seems so nuanced and complex, John. Surely it must be an apologia for some powerful and sinister interest?

Your mistake was in having a very vague idea of what you were talking about. LTCM and Enron are two fundamentally differnet phenomena, despite both involving large amounts of money, financial wizardry, and going bust. Merton and Scholes are two different people. Setting up a bogus tax shelter is, IMO, qualitatively different from running a business with a fraudulent business plan and producing fraudulent results.


Posted by: Barbar | Link to this comment | 04- 2-08 11:19 AM
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Proscription would be a poetically just punishment, I think. Remove from him the protection of the laws, confiscate his property, make giving him aid and comfort a crime.

But because I'm one of those pantywaist procedural liberals who fears setting nasty precedents, I say fire and disbar him for violating his oath of office and, per 7, brown him deliciously in effigy.


Posted by: ixnaythemetier | Link to this comment | 04- 2-08 11:21 AM
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I don't think it behooves those of us who have not been in a fight since second grade to spent a great deal of time dwelling on all the cool punishments that we'd impose on our political opponents. It reminds me of something the Flip-Pater once said about the difference between enjoying James Bond movies and seeing your house burn down.


Posted by: Flippanter | Link to this comment | 04- 2-08 11:26 AM
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Did LTCM have the potential to fail? My udnerstanding is that they were too big to let fail.

You and the Treasury Department, although IIRC Warren Buffett was upset that they weren't allowed to fail so that he and other vulture capitalists could provide liquidity for a steep price.

John, Scholes was involved in a failed hedge fund that failed to take into Keynes' dictum about market irrationality, and he set up a criminal tax shelter. Those things don't serve as an indictment of the profession, such as it is, of economics. I think your point works better with Manikiw, who was willing to support patent nonsense for political reasons (DeLong's version of the blue wall of silence notwithstanding); or Greenspan, whose transparent political hackery got ever more apparent towards the end of his public career; or Hayek and the Chicago school's pigfuckery with regards to Pinochet.


Posted by: snarkout | Link to this comment | 04- 2-08 11:26 AM
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Did LTCM have the potential to fail? My udnerstanding is that they were too big to let fail.

You and the Treasury Department, although IIRC Warren Buffett was upset that they weren't allowed to fail so that he and other vulture capitalists could provide liquidity for a steep price.

John, Scholes was involved in a failed hedge fund that failed to take into Keynes' dictum about market irrationality, and he set up a criminal tax shelter. Those things don't serve as an indictment of the profession, such as it is, of economics. I think your point works better with Manikiw, who was willing to support patent nonsense for political reasons (DeLong's version of the blue wall of silence notwithstanding); or Greenspan, whose transparent political hackery got ever more apparent towards the end of his public career; or Hayek and the Chicago school's pigfuckery with regards to Pinochet.


Posted by: snarkout | Link to this comment | 04- 2-08 11:26 AM
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Re: local law.

Bit of a red herring, what I meant here is lets say your soldiers pick up someone who has committed a rape, what rape statute do you try him under. Generally speaking, the rape statute of the territory he was captured in, that's all I meant there.


Posted by: Asteele | Link to this comment | 04- 2-08 11:28 AM
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Yes, Scholes's actions were not done in his capacity as economist, they were done in his capacity as brilliantly innovative financial-system loophole-exploiter.


Posted by: peter | Link to this comment | 04- 2-08 11:28 AM
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So LTCM, Merton, and Scholes are all clean as a whistle, and not only by the standards of economics and finance, but by normal standards?

This is a rhetorical device I don't think I've seen before: The question-begging rhetorical question.

(But yes, I absolutely agree that the standards of economics and finance are different from "normal" standards.)

The math and finance aspects of LTCM are over my head, but the appearance is that these guys set up a fund designed to use massive leverage to make money in a way that was, in the actual long-term, more-or-less guaranteed to fail. The fact that it failed in the short-term was just bad luck, I guess, but it doesn't mean that the enterprise wasn't essentially crooked (even if it was legal).

I suspect the right analogy for LTCM isn't Enron. It's Ponzi.

Has dsquared held forth on this subject before? I'd like to see that.


Posted by: politicalfootball | Link to this comment | 04- 2-08 11:29 AM
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FTR, I think Yoo got tenure before his little stint as torture enabler at OLC (and I also took two classes from him before that stint as well).


Posted by: Ugh | Link to this comment | 04- 2-08 11:31 AM
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John, Scholes was involved in a failed hedge fund that failed to take into Keynes' dictum about market irrationality, and he set up a criminal tax shelter.

The supposed tax shelter resulted in civil, not criminal, penalties.


Posted by: Ugh | Link to this comment | 04- 2-08 11:34 AM
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a failed hedge fund that failed to take into Keynes' dictum about market irrationality

Isn't this true for all hedge funds? If you make a bet, no matter how smart, the market can still screw you. Is the implication supposed to be that smart people don't make bets?


Posted by: Barbar | Link to this comment | 04- 2-08 11:37 AM
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I'll defer to PMP or Chopper or someone, but I don't know that it's at all true that LTCM was guaranteed to fail -- AIG and Berkshire would have made a lot of money if they had been allowed to do a private bailout with Goldman Sachs, and IIRC LTCM's positions were eventually closed at a profit. The problems were that they assumed a bunch of things were unrelated which, in the advent of a small financial panic, they weren't, and that the amount of leverage they used couldn't survive a downturn combined with a flight to liquidity. The same thing killed a bunch of mortgage related firms this fall.

That aside, the world of global high finance seems to much akin to punditry as far as consequences go. The guy who blew up Amaranth in 2006 has a new hedge fund, doesn't he? I guess as long as you can find suckers, the business is structured to make it profitable for you, so name recognition is more important than anything else.


Posted by: snarkout | Link to this comment | 04- 2-08 11:38 AM
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The idea is that the market can stay irrational longer than you can stay solvent, right?

well, clearly Keynes was talking to people with a piddle $1 million or so to speculate with. Xtreme Hedge Funds involve Xtreme Wealth which Keynes never imagined, and therefore it's like playing with house money, or something.


Posted by: peter | Link to this comment | 04- 2-08 11:39 AM
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Isn't this true for all hedge funds? If you make a bet, no matter how smart, the market can still screw you.

You can still lose, but it's not until you lose borrowed money you can't pay back that guys named Vinnie start discussing how flammable your curtains are.


Posted by: snarkout | Link to this comment | 04- 2-08 11:40 AM
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OK, we've got Merton off the hook compared to Scholes, and LTCM was only secondarily crooked and was primarily just doomed to fail, except that it was too big to fail, and Scholes was wearing his businessman hat when he did his magic, and not his Bank of Sweden hat, so it's wrong to describe economics as an unclean profession like law. Is that where we are now?


Posted by: John Emerson | Link to this comment | 04- 2-08 11:55 AM
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LTCM wasn't really bailed out. The government stepped in to make their liquidation orderly. They were "too big to fail" in that (in the opinion of the New York Fed), if they went bankrupt in the ordinary way, they would have caused damage to the financial system.


Posted by: Walt Someguy | Link to this comment | 04- 2-08 11:58 AM
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Here is Balkin on Yoo:

But the fact that courts make bad decisions, and even evil decisions, does not mean that the constitutional system as a whole thereby becomes illegitimate. It just means that a particular decision is very wrong. The more important question is whether our constitutional system offers opportunities to correct bad decisionmaking by courts, through sustained criticism and protest, through changing people's minds about what our Constitution requires, through political responses and political workarounds, and through the judicial appointments process." ...JB

To ban myself with analogy, for Texans to work very hard locally for decades to overturn the sodomy laws would of course be a good thing. Lawrence was a far better thing.


Posted by: bob mcmanus | Link to this comment | 04- 2-08 12:09 PM
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148

"I suspect the right analogy for LTCM isn't Enron. It's Ponzi."

Absolutely not. Ponzi schemes work differently.


Posted by: James B. Shearer | Link to this comment | 04- 2-08 12:10 PM
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143: I don't think it behooves those of us who have not been in a fight since second grade to spent a great deal of time dwelling on all the cool punishments that we'd impose on our political opponents.

I would distinguish contemplating just deserts from deciding who is first (and second, etc.) against the wall when the revolution comes. It's an imaginative exercise that can be useful in thinking about a kind of justice (it worked for Dante).

Yoo is not just some guy that I disagree with about Iraq, or farm subsidies or the proper role of the state. He's a sworn official charged with interpreting the law who finds it impossible to fathom a situation where law could or should restrain the government from destroying the lives of anyone it seizes upon, for any or no reason. Only a person entirely secure in his own privilege could so lightly undermine the basic protections the law offers.

I don't really think Yoo should die, even pour encourager les autres. I do think that imagining the tables turned on him can help one arrive at a better or more vivid notion of the specific character of his malfeasance.


Posted by: ixnaythemetier | Link to this comment | 04- 2-08 12:14 PM
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I don't spend any time at all thinking about exotic punishments. Just impale them and feed the cadavers to the hogs.

Mmmmm, delicious carnivore ham.


Posted by: John Emerson | Link to this comment | 04- 2-08 12:17 PM
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152 - Good god, don't do that!


Posted by: chopper | Link to this comment | 04- 2-08 12:18 PM
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Chopper firmly asks snarkout not to defer to him, but is untroubled by my plan to feed Republicans to starving hogs. I welcome his tacit support.


Posted by: John Emerson | Link to this comment | 04- 2-08 12:23 PM
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...it worked for Dante....

Not to indulge in lèse blogité, but none of us is Dante. Maybe Ogden-Nash-with-a-grudge.


Posted by: Flippanter | Link to this comment | 04- 2-08 12:38 PM
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I delurk to refute. Counselor Yoo is to be placed in Malebolge. 'Nuff sed.


Posted by: Dante | Link to this comment | 04- 2-08 12:47 PM
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163: ...none of us is Dante.

No argument here. But you don't have to be Dante for the project to be a fruitful one. We'd be cutting out a lot if we banned every rhetorical or literary technique that has been used by someone, sometime, better.

I should probably be sentenced to compose all future comments in terza rima, for pretentious analogies.


Posted by: ixnaythemetier | Link to this comment | 04- 2-08 12:59 PM
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164: there's like eight of them. Which one?


Posted by: Cyrus | Link to this comment | 04- 2-08 1:05 PM
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Just impale them and feed the cadavers to the hogs.

But the facial expressions are so enchanting when you feed them to the hogs *before* they're dead.


Posted by: Mason Verger | Link to this comment | 04- 2-08 1:09 PM
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I'm trying to keep it all tasteful and humane.


Posted by: John Emerson | Link to this comment | 04- 2-08 1:10 PM
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166. Eight, natch.


Posted by: Dante | Link to this comment | 04- 2-08 1:11 PM
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Tenure is meant to provide intellectual and academic freedom, right? Fine, so his employer can't fire him for his academic and intellectual beliefs. That's all they can't do.

I may not know much about tenure or the professional norms of academia, but I'm pretty sure the law school could have "Schreibtischtäter" appended to Yoo's name on his faculty profile, and stencilled on his office door, and tattooed on his fucking forehead.


Posted by: felix | Link to this comment | 04- 2-08 1:18 PM
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A forehead tattoo strikes me as eminently appropriate.


Posted by: Sifu Tweety | Link to this comment | 04- 2-08 1:22 PM
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A forehead tattoo strikes me as eminently appropriate.

Indeed, you could make the letters about 4.5" high, as long as it was a very narrow font.


Posted by: Knecht Ruprecht | Link to this comment | 04- 2-08 1:38 PM
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OK, we've got Merton off the hook compared to Scholes, and LTCM was only secondarily crooked and was primarily just doomed to fail, except that it was too big to fail, and Scholes was wearing his businessman hat when he did his magic, and not his Bank of Sweden hat, so it's wrong to describe economics as an unclean profession like law. Is that where we are now?

1. I still don't see anything Merton's done wrong, relative to Scholes or you or whoever. Maybe if he were an 18-year-old virgin, that would be more clear.

2. I would argue with the contention that LTCM was "doomed to fail" and I would disagree that it was "too big to fail," given that it *did fail*.

3. Calling economics an unclean profession because of what Scholes did is like calling biology a racist profession because of what Watson said.

4. You seem awfully pleased with being about 20% accurate in your pronouncements. Shocking as it may seem, that doesn't reflect well on you; it simply reveals that you're pretty ignorant.


Posted by: Barbar | Link to this comment | 04- 2-08 2:14 PM
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Dragging the Harvard virgin thing in again is pretty desperate.

This has been a learning experience for me. Before, I didn't differentiate Merton and Scholes. Now I do. All future digs will be aimed at Nobelist crook Scholes and will say nothing about Merton. Thank you for your help.

There are other reasons to call economics an unclean profession, for example Schleifer, Greenspan, Becker, Friedman, and Hayek. I have deleted Merton. However, even though he didn't have Scholes' degree of implication in the fakery, he was on the board of directors of the company responsible for the fakery.

Scholes' offenses were more than offhand comments.

You seem a bit touchy about this "unclean profession" thing. Is there anything you'd like to talk about?


Posted by: John Emerson | Link to this comment | 04- 2-08 5:25 PM
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If Cal can fire him, under applicable rules, I wish they would. As someone who is neither a member of the academic senate there, nor even much of a taxpayer there, I don't really have the standing to take this on as a cause.

I'm happy to call him dishonest and unfit for the company of decent human beings at every opportunity, though.


Posted by: Nápi | Link to this comment | 04- 2-08 6:11 PM
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Even the McManus vision of taking people out behind the sheds and shooting them and using their skulls to pave the way towards the glorious revolution ...motherfucking Tim Burke

How fucking dare this knee-dropping cocksucker of comity talk to me like this? This craven piece of shit who wants to make nice with the torturing party, who sups & dines with mass muderers, dare fucking lecture me on the finer points of morality?

There it is people. Read Tim Burke's comment (#53) in full and ask yourself why there is a million dead in Iraq. 5 million in Vietnam. HUAC and the Hollywood Ten. KKK marching down the streets of DVC in the twenties. Mass death in the Philippines.

Those things didn't happen because of the far left, the Emma Goldmans or Eugene Debs. They were permitted and enabled by despicable process liberals trying to maintain stability and peace, trying to go along to get along. Kissing the ass of the rich & powerful and reactionary.

Jesus, I despise that motherfucker.


Posted by: bob mcmanus | Link to this comment | 04- 2-08 6:17 PM
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You keep fighting the good fight, there, Bob. Where would we be without the deranged geezers?


Posted by: Sifu Tweety | Link to this comment | 04- 2-08 6:21 PM
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And just look at the way Tim Burke sets up the alternatives?

Making things work is always fragile. Malevolent people can break fragile things quite easily

Fragile things? Surely the next step is listening and playing nice with the Republican scum, because if we don't, oh noes, the only other option is streets paved with skulls and mortared with blood.

There are many steps between comity and chaos. But fucking Burke wants to hide all those other methods, orther options. He knows who pays his tenure, endows his chair, beets his students.

Fucking whore.


Posted by: bob mcmanus | Link to this comment | 04- 2-08 6:25 PM
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I was Eugene Debs in my 10th grade history class's re-enactment of the 1912 election. And I won. So bob can't blame me. I was fucking awesome.


Posted by: oudemia | Link to this comment | 04- 2-08 6:28 PM
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beets his students

"You'll drink my Borscht and like it, you ungrateful shits!"

"Noooo Dr. Cheney!"

There are many steps between comity and chaos

And then, 10 steps past chaos, there's crazy ol' Bob.

oh noes, the only other option is streets paved with skulls and mortared with blood

Yup, crrrrazy ol' Bob.


Posted by: Sifu Tweety | Link to this comment | 04- 2-08 6:29 PM
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DeLong will not fully engage Capital because he has many of the same fears as Burke, remembers those same old Terrors. Everybody who reads DeLong understands Brad's fear of anarchy and absolutism.

But I know DeLong has a heart, courage, a conscience. He consistently calls for the destruction of the Republican Party.

Tim Burke is just a coward.


Posted by: bob mcmanus | Link to this comment | 04- 2-08 6:32 PM
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And then, 10 steps past chaos, there's crazy ol' Bob.

I am not the crazy ones. Read Tuchman's Proud Tower, about the peace, socialist, disarmament movements of the early 20th.

What, 100 milllion, 250 million dead later, the fucking moderate procedural liberals are atill saying we just haven't talked to the Right nicely enough, long enough yet? Just keep trying?

And oh yeah, all those dead? That's the fault of the dirty fucking hippies.


Posted by: bob mcmanus | Link to this comment | 04- 2-08 6:40 PM
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Those things didn't happen because of the far left, the Emma Goldmans or Eugene Debs

Perhaps not, but Lenin and Stalin? Or they not of the "left"?


Posted by: Tassled Loafered Leech | Link to this comment | 04- 2-08 6:42 PM
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endows his chair, beets his students ...

... radishes his TAs. That fucking horticulturalist.


Posted by: Populuxe | Link to this comment | 04- 2-08 6:48 PM
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No, of course not. The good radicals are always the ones who talk a big fight, bitch endlessly about how the fucking liberals cost them the revolution, but somehow end up dying in an alcoholic haze somewhere far away from the gulags or writing for some newsletter or running a little cult from a comfortable apartment or if they didn't time it right, end up in a fascist prison right along with the liberals where both of them can sup on the same gruel together. Meanwhile the people who really know how to fight get to eat their own fucking societies alive if they win and end up in unmarked graves if they lose.

Please, bob, if your balls are as big as they seem, don't let anybody stop you from doing what you gotta do. Fighting is what works!


Posted by: Timothy Burke | Link to this comment | 04- 2-08 6:51 PM
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184: Careful, if you don't want him to turnip at your door late some night.


Posted by: JP Stormcrow | Link to this comment | 04- 2-08 6:58 PM
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I don't really have the standing to take this on as a cause.

May I respectfully disagree?

Lawyering is a State granted monopoly. It is a monopoly granted, IIRC, sometime in the early 1900s, on the ground that there were too many crooked shysters ripping off the public. (We won't go into the desire of many lawyers to raise rates and increase their wealth and prestige and keep their ranks unsullied by non-whites. That usually went unstated).

Someone obviously had to regulate the few who were allowed to hang out a shingle to dispense legal services. Who was better suited by knowledge, training and experience than other lawyers? Thus were the ABA approved schools, the bar exams, and the bar associations formed: to regulate the trade in the public interest.

The quo which justifies the quids that lawyers rake in is the duty to help regulate. Each and every lawyer has this obligation. In the model disciplinary rules, IIRC, this is made explicit by a provision that says 'every lawyer who has unprivileged knowlege of a breach of these rules has a duty to report the infraction the the authority."

Those DRs have clear, explicit rule requiring competence. A lawyer who demonstrates incompetence has violated the rules. The model rules also say that it's professional misconduct to engage in conduct dishonesy, deceit, or misrepresentation.

To the extent that Yoo couldn't figure out what the controlling authorities are and what they say, he's incompetent. To the extent that he read and understood the then-current state of the law, and chose to misdescribe it terribly intending his advice to be relied upon to the detriment of the legal system, I'd say his conduct involved dishonesty and deceit.

There's also a provision prohibiting making a false statement of law to a tribunal. To the extent that those memos were intended to be used as a defense to charges of misconduct, to be presented to a tribunal, I'd say he broke that rule, too.

I don't know where Yoo is licensed, but if it's DC, I'd say every person licensed in DC has standing (if not an affirmative obligation) to suggest to the proper authorities that he be disbarred. That's the Quo


Posted by: Michael H Schneider | Link to this comment | 04- 2-08 6:58 PM
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#186. I'm not worried. Deep down, McManus is a man of peas.


Posted by: Populuxe | Link to this comment | 04- 2-08 7:03 PM
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Burke, I mean. Burke is a man of peas. McManus is out of his gourd.


Posted by: Populuxe | Link to this comment | 04- 2-08 7:07 PM
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Intended was "who begets his students"

But call any vegetable, and the vegetable will respond.


Posted by: bob mcmanus | Link to this comment | 04- 2-08 7:11 PM
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#190. Aye. But will they come when you do call for them?


Posted by: Populuxe | Link to this comment | 04- 2-08 8:29 PM
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191: And if they do will it be between 7 and 13 minutes?


Posted by: JP Stormcrow | Link to this comment | 04- 2-08 8:54 PM
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I have some sympathy with McManus on Burker (hurhur) because I seem to remember the latter expressing his disdain for all those dirty fucking hippies on antiwar protests as an excuse not to participate.

As a far left, proper socialist, I have no need to distance myself from Lenin, but Stalin certainly wasn't "of the left". By that time the revolution had degenerated into dictatorship, in some measure thanks to interference by the western powers.


Posted by: Martin Wisse | Link to this comment | 04- 3-08 2:21 AM
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Read Tuchman's Proud Tower, about the peace, socialist, disarmament movements of the early 20th.

I propose a new community norm, which I immodestly call "Knecht's Forfeiture Rule", that anyone who suggests, as a point of debate, an imperative to read a particular monograph, shall automatically lose the argument. If said monograph was written by Chomsky or Ayn Rand, the offender shall forfeit all future arguments as well. If said monograph was published by Regnery, the offender the wholesale forfeiture will be retroactive to all past arguments.


Posted by: Knecht Ruprecht | Link to this comment | 04- 3-08 5:50 AM
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This has been tried before, Knecht, and it failed. Read Chomsky's Great Monograph Fiasco of Ought-Six.


Posted by: Merganser | Link to this comment | 04- 3-08 8:00 AM
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194:I plead inarticulate rage, and throw myself on the mercy of the court.

I mwntioned the Tuchman...I don't know, the idea was some reference to the many peaceful (and not)methods and ideas that have been tried before, the pre-WWI being a particularly fruitful period. It was a shorhand for "Look to the past"

I have many books from & about the era. I could have recommended Vilfredo Pareto instead.


Posted by: bob mcmanus | Link to this comment | 04- 3-08 8:22 AM
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SCMT in 35: The problem of late has been a lack of Dem politicians willing to recognize a line that cannot be crossed simply because it is the line that cannot be crossed. It's that unwillingness to make substantive commitments that has been a problem--perhaps because Dems were unsure of their national strength, perhaps because they confused themselves into believing that purely technocratic solutions existed--but that is, I think, changing.

Eric Alterman is promoting his new book making the argument that having uncrossable lines is a form of "moral vanity."

If it's all about raw power, if no constitutional principles are worth any electoral risk*, then all these collaborators can shut the hell up about American exceptionalism for the rest of their lives.

*Ceding for the purposes of argument that support for impeachment, prosecution, or even just plain old legislative opposition is electorally risky; I actually believe that standing up for these principles is politically beneficial as well as the right thing to do.


Posted by: Nell | Link to this comment | 04- 3-08 11:17 AM
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I, of course, view "the line that can't be crossed" from the other side of the fence.

Liberalism, ala bad Burke or procedural liberalism strikes me as a deontological system rather than utilitarian or consequential, i.e., a religion., an irrationalism. The constant refrain of:"We may not cause present involuntary suffering for the sake of future benefits." is just absurd, and IMO, wicked.

Was France, majority of French, better off in 1850 than 1750? Was Russia better off in 1950 than 1850? Was America better off for the Civil War? These are cost/benefit calculations that are morally necessary to weigh and act upon.

Impeachment, hell. Pitchforks & guillotines.


Posted by: bob mcmanus | Link to this comment | 04- 3-08 11:49 AM
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Re Nell's comment at #197, I should perhaps re-emphasize that the 'moral vanity' remark re impeachment was part of an answer to me during a book tour Q&A session, and not necessarily an argument made in the book. (1-Nell doesn't say otherwise, but her comment might be read otherwise. 2-I haven't read this book yet, so I don't know whether words to this effect are in it.)

Still, the argument apple presumably doesn't fall far from the author tree -- or perhaps from the creed the author espouses. As I told Alterman, his answer to a prior questioner nearly had me concluding that maybe I'm not a liberal.


Posted by: Thomas Nephew | Link to this comment | 04- 3-08 12:07 PM
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