Archive for the ‘Government’ Category
“Where is the public outcry for an explanation of how the longest war in American history is on a course to end in failure?”
Patrick L. Smith, always worth reading, interviews Andrew Bacevich for Salon:
Andrew Bacevich has been a singular critic of American foreign policy since he began publishing on the topic 13 years ago. His second book, “American Empire: The Realities and Consequences of U.S. Diplomacy,” came out in 2002 and defined his turf: He is a critic of the policy cliques who knows them from within. After “The New American Militarism: How Americans Are Seduced by War” (2005) came “The Long War” (2007), “The Limits of Power (2008) and “Washington Rules: America’s Path to Permanent War (2010)—titles that speak for themselves. Two years ago Bacevich published “Breach of Trust: How Americans Failed Their Soldiers and Their Country.” By then he had lost a son to an explosive device in Iraq—an event that seemed to inform the book with the dignified stoicism that marks Bacevich’s character.
Now 68, Bacevich is a West Point graduate who served a tour in Vietnam before taking a doctorate in diplomatic history at Princeton. He subsequently taught international relations at West Point and Johns Hopkins before joining the IR faculty at Boston University in 1998. Bacevich is now emeritus and devotes his time to getting the books out.
I met “the dissident colonel,” as he is known in my household, when he spoke at the Providence Council on Foreign Affairs this spring. He spent the evening outlining the book now in his desk, which rests on 10 Theses, as he calls them, after the 95 Theses Martin Luther nailed to a church door (supposedly) in Wittenberg in 1517. They are a detailed critique of what Bacevich considers our 35-year War for the Greater Middle East. He dates this to 1980, when President Carter declared the Persian Gulf a strategic interest warranting military defense. With the Carter Doctine, Bacevich said that evening in Providence, “Carter lit a fuse without knowing where it led.”
“Learning offers a first step toward devising wiser, more effective, and less costly policies,” Bacevich also said on that occasion. I subsequently traveled to Boston to record this exchange. I found him as I had expected: a conservative man in various respects, a scholar with a disciplined mind ungiven to barricades and placards but vigorously opposed to the direction of American policy abroad and well aware of its roots in our consciousness of exceptionalism.
You’re a critic of American conduct abroad on numerous grounds — I would say a critic with a very particular perspective, and I hope we can explore that. For now, a point of confusion, at least for me: In “American Empire,” the 2002 book, you note that American policy, or statecraft, as you call it, lost its coherence in the post-Berlin Wall period. Policy before 1989, you thought, was more or less, as you say, mainly realistic. When we met [at the Providence CFR], on the other hand, you traced a certain grandiose streak in U.S. policy to Carter’s 1980 doctrine, which got us into what you’re now calling the War for the Greater Middle East, a 35-year escapade at this point. Can you clarify your thinking on this? When, in your view, did the policy elite lose its way?
To clarify a little bit, until roughly 1990 the hierarchy of interests that shaped U.S. foreign policy privileged Europe and East Asia. Those were the two most important theaters in U.S. foreign policy. And notwithstanding horrific mistakes made along the way, Vietnam being the most important but by no means the only one, if you look at the period from the late 1940s to the 1990s, in the main U.S. policy in these two pivotal regions qualifies as realistic. There was a certain cohesion to U.S. policy. Indeed, one could say there was a strategy. If you wanted to reduce that strategy to a single word, the word would be “containment.” At least until 1980, the Middle East—I prefer the term the Greater Middle East—tended to be viewed as peripheral in the hierarchy. My argument is that this began to change in 1980, when Jimmy Carter, in response to the hostage crisis in Iran and the Soviet invasion of Afghanistan, promulgated the Carter Doctrine.
Now, it didn’t overnight vault the Greater Middle East to the top rank of U.S. foreign policy interests, but it began that process. And indeed, the end of the Cold War, which tended at least marginally to diminish the importance attributed to Europe and East Asia, facilitated that. So by the time you get to the 1990s, and certainly by the time you get to 9/11, there’s been this substantial change, and the change gets expressed above all and most regrettably in the reorientation of the U.S. military. Militarily, the United States doesn’t abandon Europe, and it certainly hasn’t abandoned East Asia, but if you look at where we’ve sent U.S. forces to fight or to occupy, especially since 1990, it’s clear that the focal point now is the Greater Middle East. And, to further the contrast, unlike the period of the Cold War, when you can make an argument that there was a certain cohesion in U.S. policy, there’s been virtually none with regard to the Greater Middle East. What we have is almost a pattern of random military interventionism justified by all kinds of reasons, few of which have produced anything like a positive outcome, and which cumulatively contributed to the destabilization of the Greater Middle East.
I couldn’t agree with you more on that latter point. An American imperium bent on incessant expansion and more or less global dominance is among your bedrock descriptions for what we now live with. Two of the biggest questions on any paying-attention American’s mind are just how dangerous this is and whether there is any plausible prospect of change: a new American ambition, purpose or however you want to put it. What are your views in each case? The danger of it and the plausibility of change.
In the danger of pursuing the imperium?
Yes. You have a lot of non-Americans saying the American foreign policy is the single most disorder-creating factor in global affairs today, right?
Well, the preliminary point is to understand where this urge to create a global imperium came from. And several facts contributed. One of which is the long-standing, deeply embedded claim of American exceptionalism, which assigns to us a responsibility to transform the global order in our own image. That goes back to the founding of Anglo-America, the City upon a Hill.
Winthrop’s sermon in 1630, to be exact, yes.
Right. But the end of the Cold War and the nearly simultaneous military event we call Operation Desert Storm gave the first twist to that long-standing expectation of what we are called upon to do. The end of the Cold War persuaded American elites in both parties, people on the left and people on the right, that liberal democratic capitalism was destined to triumph everywhere, that the last ideological challenger had been vanquished.
The “end of history” is set.
The end of history is set. So that seemed to bring the vision of global hegemony that much closer. Desert Storm seems to demonstrate—this is not so inaccurate, misleading—that the United States is in possession of military powers such that the world has never seen. We believe by 1991 that we have not only vanquished the last standing ideological opponent, but that we have achieved a military supremacy.
Now you combine that sort of generalized mission to save the world with the end of history and with the belief that we now possess the means to exercise dominance, and you have a very explosive combination that, by the 1990s, makes global hegemony seem possible. Of course, the 1990s is not the decade of the evil neoconservative and the bad Republicans. It’s the decade of Bill Clinton, of the liberal Democrats calling the shots. But if you look at what happens in the 1990s, you find this expansive rhetoric. They don’t use the term “empire,” but it is an imperialistic rhetoric, and you also find, under Clinton, a growing willingness to put that American military power to use. To do what Clinton would argue would be good things in the world. And that takes the form of a far greater willingness to intervene. In Somalia, in Haiti, in Kosovo, in Bosnia, with the expectation that somehow this interventionism is going to produce stability, spread our values, help to bring into existence this new American-dominated order. Problem is, of course, that the results are considerably different. Instead of creating stability we create instability, and, of course, the chickens come home to roost on 9/11, with the attacks on Washington and New York.
We’ll come back to this question of exceptionalism in a minute.
You’ve been proven right times 10 in arguing a long time ago that the thought of post-Cold War disarray in American policy circles—no aim, no strategy—is wrong. The aim from the first Bush and Clinton onward has been to cast the world in the American image, just as you said: open markets, a sort of extreme capitalism. That leads straight to the problem of exceptionalism, as you’ve just suggested. I take it you agree. Now, here’s the question: If the problem is the consciousness of exceptionalism, the matter of change becomes more daunting. You’re not talking about changing a law, you’re not yet talking about changing how many divisions we ought to have in Guam. You’re talking about changing a kind of national consciousness.
So, returning to the previous question, how realistic is this? You mentioned in Providence, “We must learn the lessons.” It’s a good phrase: Of course we must learn the lessons. But, time and again I have to say to myself: I don’t see any evidence of learning in Washington. They’re allergic to the past. They can’t stand history. We’re a nation of forgetters. How realistic is it to expect them to learn anything? And if we don’t learn anything, we’re in a very bad track. . . .
Interesting questions, eh?
A very interesting story, and it looks exactly as though the CIA were making a public relations push in the wake of negative publicity (e.g., about how it spied on Congress and mounted a domestic operation, which is illegal for the CIA, not to mention the torture it did and subsequently deliberately destroying the video evidence of its torture program). Still, it’s an interesting story, an extract from David Hoffman’s book:
The spy had vanished.
He was the most successful and valued agent the United States had run inside the Soviet Union in two decades. His documents and drawings had unlocked the secrets of Soviet radars and weapons research years into the future. He had smuggled circuit boards and blueprints out of his military laboratory. His espionage put the United States in position to dominate the skies in aerial combat and confirmed the vulnerability of Soviet air defenses — showing that American cruise missiles and strategic bombers could fly under the radar.
In the late autumn and early winter of 1982, the CIA lost touch with him. Five scheduled meetings were missed. KGB surveillance on the street was overwhelming. Even the “deep cover” officers of the CIA’s Moscow station, invisible to the KGB, could not break through.
On the evening of Dec. 7, the next scheduled meeting date, the future of the operation was put in the hands of Bill Plunkert. After a stint as a Navy aviator, Plunkert had joined the CIA and trained as a clandestine operations officer. He was in his mid-30s, 6-foot-2, and had arrived at the Moscow station in the summer. His mission was to give the slip to the KGB and make contact.
That evening, around the dinner hour, Plunkert and his wife, along with the CIA station chief and his wife, walked out of the U.S. Embassy to the parking lot, under constant watch by uniformed militiamen who reported to the KGB. They got into a car, the station chief driving. Plunkert sat next to him in the front seat. Their wives were in the back, holding a large birthday cake.
Espionage is the art of illusion. Tonight, Plunkert was the illusionist. Under his street clothes, he wore a second layer that would be typical for an old Russian man. The birthday cake was fake, with a top that looked like a cake but concealed a device underneath, created by the CIA’s technical operations wizards, called the jack-in-the-box. The CIA knew that KGB surveillance teams almost always followed a car from behind and rarely pulled alongside. It was possible for a car carrying a CIA officer to slip around a corner or two, momentarily out of view. In that brief interval, the CIA case officer could jump out of the car and disappear. At the same time, the jack-in-the-box would spring erect, a pop-up that looked, in outline, like the head and torso of the case officer who had just jumped out.
The device had not been used before in Moscow, but the CIA had grown desperate as weeks went by. Plunkert took off his American street clothes. Wearing a full face mask and eyeglasses, he was now disguised as an old Russian man. At a distance, the KGB was trailing them. It was 7 p.m., well after nightfall.
The car turned a corner. Plunkert swung open the passenger door and jumped out. At the same moment, one of the wives placed the birthday cake on the front passenger seat. With a crisp whack, the top of the cake flung open, and a head and torso snapped into position. The car accelerated.
Outside, Plunkert took four steps on the sidewalk. On his fifth step, the KGB chase car rounded the corner. The headlights caught an old Russian man on the sidewalk. The KGB ignored him and sped off in pursuit of the car.
The jack-in-the-box had worked. . .
In the US system of government, it’s pretty clear that the power resides principally in Congress: control of the purse and making laws are extremely powerful levers. Indeed, the President is required by the Constitution to report to Congress (Article II, Section 3, fully explained at the link):
He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; . . .
Tom Englehardt outlines some aspects of the state of our nation that perhaps Congress and the President prefer not to consider:
The rise and fall of great powers and their imperial domains has been a central fact of history for centuries. It’s been a sensible, repeatedly validated framework for thinking about the fate of the planet. So it’s hardly surprising, when faced with a country once regularly labeled the “sole superpower,” “the last superpower,” or even the global “hyperpower” and now, curiously, called nothing whatsoever, that the “decline” question should come up. Is the U.S. or isn’t it? Might it or might it not now be on the downhill side of imperial greatness?
Take a slow train — that is, any train — anywhere in America, as I did recently in the northeast, and then take a high-speed train anywhere else on Earth, as I also did recently, and it’s not hard to imagine the U.S. in decline. The greatest power in history, the “unipolar power,” can’t build a single mile of high-speed rail? Really? And its Congress is now mired in an argument about whether funds can even be raised to keep America’s highways more or less pothole-free.
Sometimes, I imagine myself talking to my long-dead parents because I know how such things would have astonished two people who lived through the Great Depression, World War II, and a can-do post-war era in which the staggering wealth and power of this country were indisputable. What if I could tell them how the crucial infrastructure of such a still-wealthy nation — bridges, pipelines, roads, and the like — is now grossly underfunded, in an increasing state of disrepair, and beginning to crumble? That would definitely shock them.
And what would they think upon learning that, with the Soviet Union a quarter-century in the trash bin of history, the U.S., alone in triumph, has been incapable of applying its overwhelming military and economic power effectively? I’m sure they would be dumbstruck to discover that, since the moment the Soviet Union imploded, the U.S. has been at war continuously with another country (three conflicts and endless strife); that I was talking about, of all places, Iraq; and that the mission there was never faintly accomplished. How improbable is that? And what would they think if I mentioned that the other great conflicts of the post-Cold-War era were with Afghanistan (two wars with a decade off in-between) and the relatively small groups of non-state actors we now call terrorists? And how would they react on discovering that the results were: failure in Iraq, failure in Afghanistan, and the proliferation of terror groups across much of the Greater Middle East (including the establishment of an actual terror caliphate) and increasing parts of Africa?
They would, I think, conclude that the U.S. was over the hill and set on the sort of decline that, sooner or later, has been the fate of every great power. And what if I told them that, in this new century, not a single action of the military that U.S. presidents now call “the finest fighting force the world has ever known” has, in the end, been anything but a dismal failure? Or that presidents, presidential candidates, and politicians in Washington are required to insist on something no one would have had to say in their day: that the United States is both an “exceptional” and an “indispensible” nation? Or that they would also have to endlesslythank our troops (as would the citizenry) for… well… never success, but just being there and getting maimed, physically or mentally, or dying while we went about our lives? Or that those soldiers must always be referred to as “heroes.”
In their day, when the obligation to serve in a citizens’ army was a given, none of this would have made much sense, while the endless defensive insistence on American greatness would have stood out like a sore thumb. . .
Conor Friedersdorf reports on a speech by a Federal judge who excoriated the War on Drugs as a failure that has damaged the US severely. He writes:
Former Federal Judge Nancy Gertner was appointed to the federal bench by Bill Clinton in 1994. She presided over trials for 17 years. And Sunday, she stood before a crowd at The Aspen Ideas Festival to denounce most punishments that she imposed.
Among 500 sanctions that she handed down, “80 percent I believe were unfair and disproportionate,” she said. “I left the bench in 2011 to join the Harvard faculty to write about those stories––to write about how it came to pass that I was obliged to sentence people to terms that, frankly, made no sense under any philosophy.”
No theory of retribution or social change could justify them, she said. And that dispiriting conclusion inspired the radical idea that she presented: a call for the U.S. to mimic its decision after World War II to look to the future and rebuild rather than trying to punish or seek retribution. As she sees it, the War on Drugs ought to end in that same spirit. “Although we were not remotely the victors of that war, we need a big idea in order to deal with those who were its victims,” she said, calling for something like a Marshall Plan.
She went on to savage the War on Drugs at greater length.
“This is a war that I saw destroy lives,” she said. “It eliminated a generation of African American men, covered our racism in ostensibly neutral guidelines and mandatory minimums… and created an intergenerational problem––although I wasn’t on the bench long enough to see this, we know that the sons and daughters of the people we sentenced are in trouble, and are in trouble with the criminal justice system.”
She added that . . .
Continue reading. At the link, a video of the talk.
The Obama Administration continues its bad record with respect to criminal justice and human rights. Adam Winkler reports in Slate:
The Supreme Court just ended its most liberal term in memory. Frommarriage equality to health care to housing discrimination tolegislative districting, the court decided a number of high-profile cases in ways favored by the political left. There was no better reflection of the liberal rout than the photos of President Obama joyously bear-huggingstaff members upon hearing of the health care ruling.
The president’s glee overshadows the relatively poor success rate the administration had this year at the Supreme Court. While the executive branchhistorically wins 60 to70 percent of its cases in the high court, this year the administration won only 38 percent. The court ruled against the administration in 13 of the 21 cases in which the federal government was a party, including Monday’s important decision curtailing the Environmental Protection Agency’s authority to regulate pollution from power plants.
The administration’s low win rate might seem to be the inevitable result of ideological disagreements between a liberal president and a conservative court. Yet the data suggest a more surprising story: The liberal justices voted against the Obama administration more often than the conservatives did.
The two justices who cast the most votes against the administration this term were Justices Ruth Bader Ginsburg and Stephen Breyer, each opposing the administration in 71 percent of the cases. Justice Sonia Sotomayor isn’t far behind, voting against the administration 67 percent of the time. Who voted the most with the administration? Justices Clarence Thomas and Anthony Kennedy, who each sided with the administration more often than not (in 52 percent of the cases).
A closer look at this term’s lineup suggests a reason: The administration was far more conservative on criminal justice issues than the Supreme Court was. Although a majority of the justices upheld Oklahoma’s right to use unreliable drugs for lethal injections, Justice Breyer’s critique of the death penalty—coupled with Justice Kennedy’s critique of solitary confinement in a case last week—more accurately captures the mood of the Supreme Court’s criminal justice decisions this year.
The court rejected the administration’s argument that fishermen can be prosecuted under the Sarbanes-Oxley Act for destroying illegal catch; that people can be prosecuted for criminal threats on Facebook without proof of intent; that police can extend a traffic stop to bring in drug-sniffing dogs; that convicts can’t sell their firearms; that prosecutors don’t have to prove a defendant knew he had a controlled substance analogue; and that aprovision of the Armed Career Criminal Act wasn’t unconstitutionally vague.
Add in the Supreme Court’s expansion of whistleblower protections and itsrefusal to allow the Board of Immigration Appeals to deport someone for unspecified drugs—both contrary to the administration’s arguments—and you have a remarkable number of cases this term promoting more liberal, less law-and-order outcomes than sought by the administration. The dissenters in these cases were an unlikely line-up of administration allies, in the main Justices Antonin Scalia, Samuel Alito, Thomas, and Kennedy.
When criminal justice cases are included in the assessment, the Supreme Court was in some ways more liberal than the Obama administration this term.
More outright theft by law enforcement: $167,000 taken for the simple reason that the officers wanted it
Tim Cushing reports at TechDirt:
A federal judge has just ordered the government to return $167,000 it took from a man passing through Nevada on his way to visit his girlfriend in California. The officers really wanted that money, too. They used two consecutive stops to jerry-rig some probable cause… even though at that point they thought they were only dealing with $2000. From the original stop forward, the entire situation was deplorable, indisputably showing that everyone involved was more interested in taking (and keeping) a bunch of cash than enforcing laws or pursuing justice.
The order is a jaw-dropping read. It begins with the flimsiest of “reasonable suspicion” and heads downhill after that. Straughn Gorman was driving across Nevada in his RV when he was pulled over for a “left-lane violation” — driving too slow in the passing lane. (This itself isn’t actually a moving violation, but the Supreme Court’s Heien decision has ensured that law enforcement needn’t be slowed by actual knowledge of the laws they’re supposed to be enforcing.)
This lead to some questioning, because reasons:
Upon request, Gorman produced his license and registration and told Monroe that he was traveling to Sacramento, California to visit “his chick.” Id. at 60:9-61:5. Gorman told Monroe that his girlfriend lived in downtown Sacramento, but was not able to produce her exact address, noting that it was entered into his GPS system. Id. at 84:2- 22. Gorman’s use of the word “chick” aroused Monroe’s suspicion that Gorman’s answers were rehearsed because Monroe thought that “chick” was an unusual word for a person Gorman’s age—thirty-one at the time of the stop—to use.
Obsolete vernacular = “reasonable suspicion.” That and State Trooper Greg Monroe felt Gorman’s claimed employment with a “beach activities and paddle board company” sounded similarly “rehearsed.” Monroe went back to his vehicle and tried to rustle up a K9 unit. But there were no units nearby, the records check was coming up clean and Monroe was running out of ideas. First, he told Gorman he was free to leave. Then he started fishing:
Immediately afterward, Monroe asked Gorman if he could ask some additional questions. Monroe first asked how Gorman could afford to drive a motor home cross-country when gas prices were over $3.00 per gallon. Monroe then asked if Gorman still sold paddle boards for a living, and asked about his compensation, to which Gorman responded “I don’t want to talk about how much I make.” At approximately 9:25 a.m., Monroe asked if there was anything illegal in Gorman’s motor home, or if he was carrying large amounts of U.S. currency. Gorman then told Monroe that he was only carrying about $2000 in U.S. currency in the motor home. At 9:25:45 a.m, Monroe asked Gorman “do you mind if we search the vehicle?,” to which Gorman said “I do mind, yes.” At this point, Monroe told Gorman that he was free to leave [for the second time], returned to his vehicle, and said “he’s carrying money” aloud to himself.
Monroe smelled money and he wasn’t about to let $2000 travel across his state without being apprehended. So, he called the Highway Patrol and told dispatch his suspcions, stating that the only way the vehicle could be searched was with the use of a drug dog. Dispatch called Deputy Doug Fisher and informed him that Gorman did not consent to a search and that he “might want to follow up on the information.” Here we have two different law enforcement entities basically colluding to perform a search simply because one entity experienced a refusal. The court isn’t impressed.
The Court is particularly troubled that the officers’ belief that Gorman would not consent to a search, and his opposition to the canine sniff, appears to have contributed to the officers’ purported reasonable suspicion to extend the stop and continue the investigation. Individuals have a right to refuse consent for a search, and the existence of this right requires that denial of consent not be a basis to prolong a stop.
On top of this, Monroe called Deputy Fisher directly to “relay his suspicions.” He also inflated the amount of money Gorman had admitted to be carrying with him — from $2000 to $5000. Fisher left the Sheriff’s Office ostensibly to perform a “roving patrol,” but soon decided to park himself on the side of the highway in order to catch Gorman when his RV passed by. Fisher pulled the RV over after it “crossed the fog line” a few times.
Having been stopped for a second time in under an hour, Gorman was understandably annoyed. He told Fisher the same thing he had told Monroe during his twenty-minute stop earlier. Fisher ran thesame records checks and received the same lack of anything actionable. Despite this, Fisher pushed for a canine search.
[A]pproximately twelve minutes into the traffic stop, Fisher released his drug-detection canine “Euros” from his vehicle. Fisher and Euros then approached the motor home and began walking around it in the clockwise direction, starting at the rear left-hand side of the vehicle. As Fisher and Euros circled the rear of the motorhome, Euros sat down near the vehicle’s back right compartment, facing the compartment. Fisher described this as a “committed sit and stare,” which he considered to be a positive alert.
Even if you believe — like the Supreme Court does — that drug dogs are mostly reliable and unlikely to respond to signals (unconscious or otherwise) from their handlers, Fisher’s next statements indicate that bringing a drug dog onto the scene is just an easy way to generate “probable cause” where none exists.
Gorman then referred to the back rear compartment and said “I can open that if you want to look in it. It’s charcoal and stuff like that, do you want to look in it?” Fisher replied “do you want to talk to me now?” Gorman replied “if he alerted somewhere, look in it because there’s no drugs.” Fisher then noted that odor could come out anywhere on the vehicle, and that the rear back compartment was on the “downwind side of the vehicle.”
Armed with the drug dog’s affirmation that drugs might be located somewhere in the RV, the deputy acquired a telephonic warrant and immediately began searching the entire interior of the RV. And while the drug dog continued to “alert” on objects inside the vehicle, no drugs were found. The only thing “illegal” in Gorman’s motorhome was $167,000 in cash, stashed away in the freezer, microwave and bedroom. Gorman was (for the third time in under two hours) free to go. But his money wasn’t.
Gorman fought back. Almost two-and-a-half years from the point the money was taken, it is now ordered to be returned. On top of that, Gorman will also be awarded attorney’s fees. Why? Because the government lied every step of the way.
First off, two different law enforcement officers performed consecutive stops, with the second stop being predicated on the “suspicions” generated by the first. This is something law enforcement cannot do. . .
Radley Balko writes in the Washington Post:
If there was a bright spot in yesterday’s regrettable Supreme Court decisionin Glossip v. Gross, it’s that at least two current justices — Stephen G. Breyer and Ruth Bader Ginsburg — are open to the idea that the death penalty is unconstitutional. It seems at least possible that Sonia Sotomayor may move in that direction as well. Unfortunately, that bright spot was overwhelmed by opinions from Clarence Thomas, Antonin Scalia and Samuel A. Alito Jr. that indicate they are as adamant as ever about keeping capital punishment around, and, at least in the case of Thomas, open to expanding it to include juveniles, and for crimes other than murder.
As my colleague Mark Berman pointed out, there was an interesting and sad footnote to yesterday’s decision. In his dissent, Breyer noted the case of Glenn Ford, a Louisiana man who spent 30 years on death row before he was finally exonerated and released. Ford died of lung cancer just hours before the Glossip decision was released. Despite his exoneration, Ford was never compensated for his wrongful conviction or for the unfathomable amount of time he spent not only locked up but also awaiting his execution. He was released just in time to succumb to lung cancer, all while fighting the state of Louisiana for recompense. The man who prosecuted Ford, Mark Stroud, has since apologized, asked Ford’s forgiveness and declared the death penalty to be an “abomination” that “continues to scar the fibers of this society.”
Of course, Ford isn’t the only death-row inmate to be exonerated. There are more than 100 others, just since 1973. He isn’t even the only one in Louisiana.In Orleans Parrish alone, during the reign of notorious District Attorney Harry Connick, four death-row inmates were exonerated, representing 11 percent of the capital convictions during his tenure. Others were released without being granted full exonerations.
On the surface, yesterday’s decision in Glossip was about the constitutionality of a specific drug now used in some states for lethal injections. But the case touched off a broader and contentious discussion among the justices about lethal injection and the death penalty in general. Scalia in particular wrote a scathing, abrasive opinion that mocks “abolitionists” and bizarrely concludes that in opposing capital punishment, Breyer and like opponents of the death penalty “oppose the Enlightenment.”
Capital punishment presents moral questions that philosophers, theologians, and statesmen have grappled with for millennia. The Framers of our Constitution disagreed bitterly on the matter. For that reason, they handled it the same way they handled many other controversial issues: they left it to the People to decide. By arrogating to himself the power to overturn that decision, JUSTICE BREYER does not just reject the death penalty, he rejects the Enlightenment.
Of course, lots of Enlightenment thinkers were well aware of the perils of subjecting basic rights to the whims of democracy. (Or as James Bovard once put it, “Democracy must be something more than two wolves and a sheep voting on what to have for dinner.”) The driving principle behind the Enlightenment was the rejection of blind deference to tradition and authority and instead embracing reason, individualism and empiricism. Both Scalia’s and Alito’s opinions are not only dismissive, they’re also downright contemptuous of Breyer’s use of data to show that the death penalty is unequally applied, racially biased and ineffective. They reject Breyer’s long list of cases in which prosecutors and/or police were shown to have manufactured evidence, hidden exculpatory evidence and committed other egregious misconduct. Instead, they simply point out that the Supreme Court has upheld the constitutionality of the death penalty for 40 years, so they aren’t about to consider it now. Here, for example, is Scalia:
A vocal minority of the Court, waving over their heads a ream of the most recent abolitionist studies (a superabundant genre) as though they have discovered the lost folios of Shakespeare, insist that now, at long last, the death penalty must be abolished for good. Mind you, not once in the history of the American Republic has this Court ever suggested the death penalty is categorically impermissible.
This is about as thorough a rejection of Enlightenment principles as one can imagine a Supreme Court justice articulating. It’s a abrupt dismissal of empirical data (not even an attempt to grapple with it) in favor of an appeal to tradition.
The most compelling argument against the death penalty has always been innocence. Scalia undoubtedly knows this, which is why he over the years has attacked this argument by both insisting that it’s extremely unlikelyan innocent percent has ever been executed and that, even if it has happened, the execution wouldn’t be unconstitutional so long as the innocent person was afforded due process. The latter argument doesn’t tend to go over well. Most of us intuitively believe that if the right to due process means anything at all, it means you won’t be executed for a crime you didn’t commit. Or put another way, any system that not only allows an innocent person to be executed, but also is okay with it after the fact is, by definition, a system unconcerned with due process.
But Scalia’s first claim is increasingly under fire, too. Several journalists — most notably David Grann in the New Yorker — have made a compelling case for the innocence of Cameron Todd Willingham, who was executed by Texas in 2004. The sheer volume of DNA exonerations of death-row inmates suggests that there are serious flaws in how we try these cases. Common sense suggests that these same flaws also exist in cases for which DNA isn’t a factor and therefore doesn’t provide a safety net for wrongful convictions.
Scalia’s vituperative opinion in yesterday’s lethal-injection case is particularly brazen given the case of Henry Lee McCollum. . . .