Brad DeLong's Egregious Moderation

Julian Sanchez: Rogering the Constitution

Notes from the Lounge: Rogering the Constitution: I can already hear the talking point: "Even the libertarian Cato Institute thinks the president needs to be able to tap your phone without a warrant..." That will doubtless be the upshot of this phenomenally disappointing Wall Street Journal op-ed by Roger Pilon on the ongoing debate over reforms to the Foreign Intelligence Surveillance Act. I'm not sure whether it makes matters better or worse that, when Cato's legal VP takes the wrong side on the major civil liberties controversy of the day, he does it with an array of pretty poor arguments. We begin:

Today the Senate takes up a bipartisan surveillance authorization measure that's already passed the Intelligence Committee. The clock is ticking. This Friday a temporary law called the Protect America Act will expire. If Congress does not act before then, the president's statutory power to prevent terrorist attacks will be seriously compromised.

The rest of the piece at least stakes out a principled legal view; this is just water-carrying for Republicans. The clock is "ticking" because the White House and its proxies in the Senate sought at every turn to block temporary extensions of the PAA so that a proper debate of a significant reform to foreign intel law could be conducted. (Fortunately, it does look as though we'll get that extension.) If the Senate actually wanted to get a bill out quickly, they could have gone with legislation that more closely matched the far saner RESTORE Act, which the House has already approved.

This dangerous situation should never have arisen. From the beginning, presidents have exercised their Article II executive power to gather foreign intelligence -- in war and peace alike, without congressional or judicial intrusion. As our principal agent in foreign affairs, the president is constitutionally bound to protect the nation. For that, intelligence is essential.

Intelligence is essential on the domestic side as well, where law enforcement is the president's main function. Yet not until 1967 did the Supreme Court require warrants for electronic surveillance. Congress codified that a year later. But both the court and Congress expressly exempted foreign-intelligence gathering from the warrant requirement.

First, as a general point, it bears noting that Roger's approach to interpreting the scope of executive national security powers is precisely the opposite of the approach he takes to the rest of the Constitution. When he reads "commerce" in Article I, Section 8, man that means commerce—not manufacture, not consumption, not activity that affects commerce—nothing but the literal buying and selling of goods. At the blurry edges, at any point where the scope of the power is ambiguous, he wants a narrow reading and a constrained power. The volume of intrastate wheat production and consumption may in part determine the price of wheat on the national market, but it's not interstate commerce, so on Roger's view, Congress can't touch it. On the other hand, because "intelligence is essential" to national security, "Commander in Chief of the Army and Navy of the United States" naturally entails the power to authorize surveillance of Americans' communications with (at least) persons abroad, subject to neither limitation nor, indeed, even scrutiny by the other branches. Second, the historical reading we get here is a bit tendentious. I'm not sure what is meant to be the point of observing that "only" in 1967 did the court finally recognize the absurdity, given new technology, of restricting the constitutional meaning of "search" to physical incursion on property. The contrast with presidential practice "from the beginning" seems calculated to suggest that any application of the Fourth Amendment on the wire is somehow suspect.

But since Roger is invoking Katz v. United States, let's have a look at that express exemption for intel gathering. It consists, essentially, of a footnote reading:

Whether safeguards other than prior authorization by a magistrate would satisfy the Fourth Amendment in a situation involving the national security is a question not presented by this case.

This is an exemption only in the narrowest sense, in that it recognizes the unique problems presented by national security surveillance, and so declines to pass judgment on such surveillance either way within the rubric of a case concerning ordinary criminal wiretaps. Notice, though, that the footnote contemplates "safeguards other than prior authorization by a magistrate". The inclusion of that word "prior" suggests an assumption that some kind of judicial scrutiny, even if after the fact, is appropriate. Whatever the nature of those possible safeguards, though, one imagines they were meant to consist of something a bit more robust than a presidential promise to behave.

Unfortunately, the exception was not to last. Following the Vietnam War, Congress increasingly inserted itself into foreign affairs, as with the 1973 War Powers Act. With the Foreign Intelligence Surveillance Act, passed in 1978, Congress began micromanaging foreign intelligence gathering. That produced the "wall" between foreign and domestic intelligence gathering -- with foreign-intelligence agents focused on security, and domestic agents on prosecution and hence on obtaining "admissible" evidence. Neither side talked to the other. Many believe the resulting communications failures played a role in 9/11.

Conspicuously absent from this miniature history of congressional interference: any mention of the massive abuse of surveillance power uncovered by the Church Committee, which is what actually prompted FISA's passage. ("And I would've gotten away with it, too... if it weren't for that meddling Congress!") Apparently legislators were just in a Gladys Kravitz sort of mood. Recall that the "micromanagement" here consisted of establishing a process for court oversight of wiretaps on domestic parties, oversight so burdensome that until 2003, the FISA court had never rejected an application. (It has since come out that many of those rubber-stamped applications were falsified.) As for "the wall," the most dramatic claims about how the foreign/domestic division stymied investigation of the 9/11 terrorists have been debunked, and in any event, most of the bricks in that "wall" were executive orders, administrative rules, and intel community norms, not statutes.

In the aftermath of 9/11, believing FISA to be hopelessly inadequate, President Bush instituted his terrorist surveillance program (TSP) -- but not before advising key members of Congress. Nevertheless, a firestorm ensued when the New York Times made the program public in December 2005. The controversy continued until January 2007, when the White House announced that henceforth it would gather intelligence under FISA's antiquated restrictions.

How kind of the president to "advise" some "key" legislators of his decision to simply ignore the law specifying the "exclusive means" by which foreign intel surveillance of U.S. persons may be conducted. On Roger's theory, of course, there can be no conclusion but that this law is unconstitutional from start to finish, so this was pure charity.

Cooler heads in Congress grew concerned after Director of National Intelligence Michael McConnell testified in July that "we're actually missing a significant portion of [the intelligence] we should be getting." That led to last August's six-month fix, which expires this week.

Yes, Mike McConnell's fearmongering represents "cooler heads" prevailing. I defy anyone to look at the process that led to the passage of the Protect America Act and find anything "cool" about it. In fact, Congress took McConnell largely at his word when the DNI asserted, quite implausibly, that the FISA court had somehow manufactured a blanket warrant requirement for foreign-to-foreign communications passing through U.S. switches. Nobody who actually understands FISA finds this remotely plausible. Since the court has declined to release the ruling in question, we can't know what it actually says. But it bears note that the administration did not bother to appeal the ruling, or to modify their program in any way to pass muster. They preferred to use it as leverage to terrify Congress into expanding their powers.

Obviously, this is no way to conduct the serious business of foreign intelligence. The ever-changing rules -- criminalizing transgressions -- leave officials playing it safe in a world of risks.

Wait, I keep forgetting: Are the rules "antiquated" because they're part of a framework established way back in 1978, or are they "ever changing"?

The Senate bill would be an improvement, not least because it provides retroactive liability protection for telecom companies that allegedly assisted the government after 9/11. But the deeper problem is the very idea of congressional micromanagement.

The Senate bill would require showing probable cause before targeting even U.S. persons abroad, dramatically increasing the role of the FISA court. As Judge Richard Posner wrote on this page two years ago, FISA may be valuable for monitoring communications of known terrorists, "but it is hopeless as a framework for detecting terrorists. It requires that surveillance be conducted pursuant to warrants based on probable cause to believe that the target of surveillance is a terrorist, when the desperate need is to find out who is a terrorist."

Troubling indeed. But not—what's the word?—oh yes: true. Post–PATRIOT Act, the terrible micromanagerial burden imposed by FISA is that the government must make some showing that foreign intel gathering is a "significant purpose" of an investigation. They do not need to show that the target is a terrorist, or knows any terrorists, or even sports a vaguely terrorist-ish beard.

The technical impediments to legislating are even greater. We're long past alligator clips on copper wires. Today, electronic communication is broken into discrete packets that travel along independent routes before being reassembled. As K.A. Taipale, executive director of the Center for Advanced Studies in Science and Technology Policy, has written, "even targeting a specific message from a known sender requires intercepting (i.e., scanning and filtering) the entire communication flow." Yet the Senate bill requires that intelligence analysts count the people in the U.S. whose communications were "reviewed," an all but impossible distraction for analysts already stretched.

This part is just flat-out crazy. Nobody has ever suggested that the filtering of a data stream to extract a particular target's communications somehow counts as surveillance of the entire stream. The implication here is that if NSA drops a Naurus box on a wire and automatically plucks out all the emails to or from a particular source, FISA is going to demand that the agency keep track of who owns every bit that passed through the machine, whether or not this other data was stored or seen by a human eye. In most cases, when this is done with the cooperation of an ISP, the government does not actually need to intercept the entire communications flow. But even leaving that aside, as tech reporter Declan McCullagh observes, "the scanning and filtering is done automatically in a split second and the results are not retained. Alleging this amounts to 'reviewing' -- something only a human can do -- is like complaining that your cat is voyeur for watching you have sex." So Roger's insinuation here is not just false; it is wildly, ludicrously, hobo tall-tale false. Basically, he's shouting "cybernets! complicated!" and hoping nobody will notice that what he's claiming is preposterous.

Privacy concerns are not trivial. The Constitution protects against "unreasonable" searches. But even with law enforcement, where the main function is ex post prosecution, not ex ante protection, there are numerous exceptions to the Fourth Amendment's warrant requirement. Yet Congress insists still on micromanaging the president -- and he, by failing to assert his authority early on, is now reduced to bargaining with Congress over minutia that will soon be as obsolete and dangerous as the underlying act is today.

Recall here that since we're breaking down the old "wall," information gathered as part of a foreign intel sweep—without a warrant or meaningful oversight if the intel bill passes—can be passed on to domestic law enforcement for use in plain vanilla criminal prosecutions. And what are the "minutiae" here? Details like: Will bulk collection of data without specified targets be permitted? Will courts be able to look into whether agencies are actually complying with minimization requirements designed to prevent the retention of information about innocent Americans? Can Congress learn how the FISA courts have interpreted the legislation they've passed? At what point does collection of information about a U.S. person become important enough a purpose of an investigation that it triggers a warrant requirement? Details, details.

John Locke, no sometime civil libertarian, put it well when he observed that the foreign affairs power "is much less capable to be directed by antecedent, standing, positive Laws, than [by] the Executive." The Federalist's authors, James Madison, Alexander Hamilton and John Jay, all agreed. The remedy for executive incompetence or recklessness in foreign affairs is political -- not legislative, much less legal. Congress, to say nothing of the courts, can no more manage such affairs than it can the economy. What better evidence than these surveillance fits and starts?

As long as we're quoting Locke, I rather prefer a passage that comes a few chapters later:

Where-ever law ends, tyranny begins, if the law be transgressed to another's harm; and whosoever in authority exceeds the power given him by the law, and makes use of the force he has under his command, to compass that upon the subject, which the law allows not, ceases in that to be a magistrate; and, acting without authority, may be opposed, as any other man, who by force invades the right of another. This is acknowledged in subordinate magistrates. He that hath authority to seize my person in the street, may be opposed as a thief and a robber, if he endeavours to break into my house to execute a writ, notwithstanding that I know he has such a warrant, and such a legal authority, as will impower him to arrest me abroad. And why this should not hold in the highest, as well as in the most inferior magistrate, I would gladly be informed.

Roger is not the only voice on this subject emanating from Cato, but he's surely the loudest. And as we undertake the most sweeping revision of the nation's foreign intelligence framework in three decades, he's positioning himself—which in most people's minds will be equivalent to positioning the Institute—against accountability and oversight, against reasonable privacy safeguards, and (for what it's worth) against just about every other civil liberties group that has weighed in on the question. I respect that Roger's views are considered and sincerely held, and I regard it as a general virtue that Cato gives their scholars latitude to go off the reservation when that's where their thinking takes them. But I'm still appalled to see a voice for limited government crying for unlimited spying at the first hint of danger.

Addendum: I meant to note in the original post that Roger's stance when he's debated this in the past has been that, so long as the president says he's acting in the interests of national security, the only accountability to which he's subject—here or abroad—is political. Roll that around in your head for a minute. Political accountability For a classified secret surveillance program. Free cookie if you can spot the flaw in this logic.

Will Wilkinson on National Greatness Conservatism

a href="http://www.willwilkinson.net/flybottle/2008/01/25/must-destroy-milton-freedman/">Must… Destroy… Milton Freedman: Benjamin Storey & Jenna Silber Storey: “The moral vacuity of dogmatic libertarianism is poisonous to public life.” Translation:

Libertarianism is dangerous because it discourages juvenile romantic attachment to higher things — meaningful things – like Honor, Virtue, and the indescribable joy of sacrificing one’s life to the service of the American Volksreich. All libertarians care about is superficial shit like not starving, living a long time, and being creative and happy. Blah blah blah. But, really, what’s the point of living to 200 if all you do is enjoy yourself the whole time? I mean, don‘t you want to know what it is like to kill a man? DON’T YOU WANT TO TASTE BLOOD!? Besides, virtue.

Vote John McCain.

Oh, goodness that’s not fair! But, really, that whole thing is just as embarrassing as misspelling ‘Friedman’. I am more and more coming to the conclusion that National Greatness Conservatism, like all quasi-fascist movements, is based on a weird romantic teenager’s fantasies about what it means to be a grown up. The fundamental moral decency of liberal individualism seems, to the unserious mind that thinks itself serious, completely insipid next to very exciting big boy ideas about shared struggle, sacrifice, duty, glory, virtue, and (most of all) power. And reading Aristotle in Greek.

I sometimes think that liberal individualism is something like the intellectual and moral equivalent of the best modernist design — spare, elegant, functional — but hard to grasp or truly appreciate without a cultivated sense of style, without a little discerning maturity. National Greatness Conservatism is like a grotesque wood-paneled den stuffed with animal heads, mounted swords, garish carpets, and a giant roaring fire. Only the most vulgar tuck in next to that fire, light a fat cigar, and think they’ve really got it all figured out. But I’m afraid that’s pretty much the kind of thing you get at the Committee on Social Thought. If you declaim the importance of virtue loudly enough, you don’t have to actually think.

Matthew Yglesias: Barack-as-Cudgel

Matthew Yglesias: I don't at all adhere to the school of thought that says "if Andrew Sullivan and David Brooks like Barack Obama, he must be evil." That said, I do think it's clear reading things like this doozy from Brooks today that one important driving force behind the sophisticated right's praise of Obama is a simple belief that he'll probably lose in the end. Then, when Clinton is nominated, having praised Obama to the skies they can lament that once again -- sigh -- the Democratic Party has let them down and they have no choice but to vote for the Republicans. The effort here is to somehow bracket the Bush years as just some kind of goofy one-off that we can forget about and remember that the real issue -- as it so often seems to be here in Washington -- is Bill Clinton's sex life. Or something.

It's all pretty inane. I've developed an increasingly strong preference for Obama in this race, but there's no gaping substantive void between them policywise. Certainly, I don't think I can think of any respect in which an Obama administration would more closely resemble a McCain administration than it would a Clinton administration. Meanwhile, McCain, despite some admirable qualities, shares Bush's lunatic conception of America's role in the world, declined to endorse any climate change measures that might actually solve the problem, and has pledged fealty to Bush's irresponsible tax policy in a way that makes it impossible for him to do much of anything innovative on the domestic front. There's a big, clear choice facing the country between the party of war, tax cuts, and the destruction of the planet and the other party -- the notion that the big story is the fortunes of the Clinton family is preposterous.

Reihan Salam: The Washington Independent | The Media | The American Scene

The Washington Independent | The Media | The American Scene: This post is kind of boring. But that also means no animals were murdered in the course of writing it, which means you can consume it without any guilt or trepidation.

A few weeks ago I made one of those predictions that are so obviously true as to be borderline witless, namely that we’re in the midst of the rise of the partisan media, a point made far more persuasively by David Frum and others. I’ll just add that this development is likely to have highlights as well as lowlights, and that The Washington Independent, which just launched today, will likely be one of the highlights. Sponsored by the Center for Independent Media, the site is part of a flourishing ecosystem of nonprofits, for-profits, think tanks, media outlets, and nontraditional pressure groups that’s grown out of the Howard Dean campaign and the broader (self-styled) progressive movement. As a webdesign fetishist, I was struck by the ease of navigation. I’d do things a little differently, to be sure (EveryBlock more closely reflects my aesthetic preferences), but it is a clean, fairly attractive look that captures the spirit of a lean blog-newspaper hybrid.

The Independent‘s staff is impressive, and landing Spencer Ackerman was a coup. As much as I disagree with Josh Marshall — I really, really disagree with him about a lot — I’m one of the people who thinks he deserves a Pulitzer. Now his innovative approach is finding converts — the Independent is stocked with veterans of traditional journalism. And talented alumni of Marshall’s School of Distributed Journalism are going to have a lasting impact on the media business.

One small quibble: two of the maiden opinion pieces, by Bruce Schulman and Michael Kazin, were disappointing, particularly Kazin’s (because I expected more from Kazin, a genuinely brilliant dude). Apart from being dry and not terribly provocative or surprising, they were both longer than I’d expect from an outfit that hopes to do something distinctly webby. That’s not to say webby needs to be short — note the dramatic success of Glenn Greenwald, who is very careful and very long-winded. Rather, it means the traditional, awkward op-ed length needn’t fence you in. Overall, though, I think this is a tremendously promising effort and I look forward to reading more.

Many moons ago, Patrick Ruffini predicted that the right’s failure to create comparable agenda-sitting institutions would prove costly. That will become very clear in the general election.

Matthew Yglesias: Why Is Jacob Weisberg Allowed Out without His Keeper?

Matthew Yglesias: Compassion: Jacob Weisberg, somewhat bizarrely, is sitting here in 2008 writing about Bush's "compassionate conservatism" as if it's a part of his persona that we ought to treat very seriously. Krugman wonders "Why are political writers still unaware that Bush’s phrase 'compassionate conservatism' wasn’t an acceptance of the Great Society, but rather a dog-whistle to the religious right?" Beyond that, why are political writers still unaware that politicians deliberately lie in order to enhance the popularity of their political prospects? Compassionate conservatism obviously wasn't just a dog-whistle, it was also deliberately designed to foster an impression of a more moderate strain of Republicanism. And, indeed, to do that you had to toss some meat into the soup:

The following year, in 2003, Mr. Bush pressed his case for invading Iraq and uttered the infamous 16 words (“The British government has learned that Saddam Hussein recently sought significant quantities of uranium from Africa”). But alongside that disingenuous indictment, Mr. Bush presented Congress with a new raft of centrist-minded initiatives: $450 million to minister to the needs of children of prisoners, $600 million to treat drug addicts, $1.2 billion for hydrogen-powered cars, $10 billion in new money to fight AIDS in Africa and the Caribbean.

You need to put $450 million into some kind of context relative to the federal budget -- $450 million is tiny. $450 million is the kind of budget request you make when you don't really care about the issue at hand but are hoping to gull innumerate reporters into writing about your $450 million initiative as if it were roughly on par with your proposed war whose costs run three orders of magnitude higher.

Similarly with the hydrogen cars. Spending $1.2 billion on hydrogen-powered cars certainly could be an element of a centrist environmental policy. Certainly what doling out a subsidy like that suggests, logically speaking, is concern about carbon emissions and global warming. And of course, that's exactly the suggestion the subsidy was intended to implant but the Bush administration isn't concerned about carbon emissions and global warming at all. They hand out tons and tons of subsidies to the oil and coal industries, they steadfastly oppose all limits to curb carbon emissions, and they act like a diplomatic wrecking ball at international conferences.

Compassionate conservatism was, in practice, nothing more than spin and a vague gesture at a higher-order justification for corruption. It's bad enough that the press got spun at the time, but to look backward from a Bush-critical perspective and get spun all over again is bizarre. Look at Bush -- he used to care and now he doesn't! But no, he never cared; what everyone can now see is what people who looked at his policies in detail and in context could see clearly back in 1999-2003.

Jonathan Chait: Is the Right Right on the Clintons?

Is the right right on the Clintons? - Los Angeles Times: Hillary's campaign tactics are causing some liberals to turn against the couple.

Something strange happened the other day. All these different people -- friends, co-workers, relatives, people on a liberal e-mail list I read -- kept saying the same thing: They've suddenly developed a disdain for Bill and Hillary Clinton. Maybe this is just a coincidence, but I think we've reached an irrevocable turning point in liberal opinion of the Clintons.

The sentiment seems to be concentrated among Barack Obama supporters. Going into the campaign, most of us liked Hillary Clinton just fine, but the fact that tens of millions of Americans are seized with irrational loathing for her suggested that she might not be a good Democratic nominee. But now that loathing seems a lot less irrational. We're not frothing Clinton haters like ... well, name pretty much any conservative. We just really wish they'd go away.

The big turning point seems to be this week, when the Clintons slammed Obama for acknowledging that Ronald Reagan changed the country. Everyone knows Reagan changed the country. Bill and Hillary have said he changed the country. But they falsely claimed that Obama praised Reagan's ideas, saying he was a better president than Clinton -- something he didn't say and surely does not believe.

This might have been the most egregious case, but it wasn't the first. Before the New Hampshire primaries, Clinton supporters e-mailed pro-choice voters claiming that Obama was suspect on abortion rights because he had voted "present" instead of "no" on some votes. (In fact, the president of the Illinois chapter of Planned Parenthood said she had coordinated strategy with Obama and wanted him to vote "present.") Recently, there have been waves of robocalls in South Carolina repeatedly attacking "Barack Hussein Obama."

I crossed the Clinton Rubicon a couple of weeks ago when, in the course of introducing Hillary, Clinton supporter and Black Entertainment Television founder Robert L. Johnson invoked Obama's youthful drug use. This was disgusting on its own terms, but worse still if you know anything about Johnson. I do -- I once wrote a long profile of him. He has a sleazy habit of appropriating the logic of civil rights for his own financial gain. He also has a habit of aiding conservative crusades to eliminate the estate tax and privatize Social Security by falsely claiming they redistribute wealth from African Americans to whites. The episode reminded me of the Clintons' habit of surrounding themselves with the most egregious characters: Dick Morris, Marc Rich and so on.

The Clinton campaign is trying to make it seem as if the complaint is about negativity, and it is pointing out that Obama has criticized Hillary as well. That's what politicians are supposed to do when they compete for votes. But criticism isn't the same thing as lying and sleaze-mongering.

Am I starting to sound like a Clinton hater? It's a scary thought. Of course, to conservatives, it's a delicious thought. The Wall Street Journal published a gloating editorial noting that liberals had suddenly learned "what everyone else already knows about the Clintons." (By "everyone," it means Republicans.)

It made me wonder: Were the conservatives right about Bill Clinton all along? Maybe not right to set up a perjury trap so they could impeach him, but right about the Clintons' essential nature? Fortunately, the Journal's attempt to convince us that the Clintons have always been unscrupulous liars seemed to prove the opposite. Its examples of Clintonian lies were their claims that Bob Dole wanted to cut Medicare, that there was a vast right-wing conspiracy, that Paula Jones was "trailer trash" and that Kenneth Starr was a partisan.

Except Dole did vote to cut Medicare, there was a vast right-wing conspiracy and Starr was and is a rabid partisan. ("Trailer trash" is, of course, a matter of opinion, and it's a cruel thing to say, but as far as whether it's a lie -- well, it's not like they called William F. Buckley "trailer trash.")

So maybe the answer is that the Clintons would have smeared their opponents in the 1990s, but lying is unnecessary when the other party is doing things such as voting to slash Medicare to pay for a big tax cut for the rich.

But the conservatives might have had a point about the Clintons' character. Bill's affair with Monica Lewinsky jeopardized the whole progressive project for momentary pleasure. The Clintons gleefully triangulated the Democrats in Congress to boost his approval rating. They do seem to have a feeling of entitlement to power.

If Hillary wins the nomination, most of us will probably vote for her because the alternative is likely to be worse. But what happens if she's embroiled in another scandal? Will liberals rally behind her, or will they remember the Democratic primary?

---

Jonathan Chait, a contributing editor to Opinion and a senior editor at the New Republic, is the author of "The Big Con: The True Story of How Washington Got Hoodwinked and Hijacked by Crackpot Economics."

Matthew Yglesias: Libertarians and Democracy

Matthew Yglesias: Libertarians and Democracy: Tyler Cowen says he agrees that market operations will be flawed due to the irrationality of the participants, but "relative to social democrats, I tend to think that politicians are irrational actors trying to pander to irrational voters and that it can't be any other way. I am much less optimistic about democracy as an instrument for fine-tuning good policy or for that matter as a medium for enforcing progressive sentiments." This is similar to Bryan Caplan's argument for libertarianism in The Myth of the Rational Voter.

Libertarians have always been against democracy (the rapprochement with democracy being one of the key steps in the transition from classical to modern liberalism) but this new vintage of arguments is a curious inversion of the traditional line of attack. The main problem used to be the fear that voters were too rational and that the unlimited prerogatives of property had to be protected through a lack of democracy. Now the fear is that the dire consequences of democracy can best be preserved through the unlimited prerogatives of property.

Needless to say I think this is wrong along several dimensions. One point of dispute, though, is that to me the idea of state committed to neutral and effective administration of justice around laissez faire lines seems like an illusion. The alternative to reasonably effective democratic institutions and a viable left-wing political movement isn't free markets but the capture of the state by large economic interests as during the Gilded Age or, indeed, the Bush administration.

Matthew Yglesias on the Scum that Is National Review

Matthew Yglesias: Observances (Media): Here's a screen shot from yesterday's National Review Online. Not even a token actual remembrance of Martin Luther King, JR. or a nod in the direction of the civil rights movement. Nope, to the editors of NRO MLK Day stands purely as a good opportunity to discuss the thesis that one important source of injustice in the United States is that black people have things too easy thanks to "preferences." Of course, I suppose it is a step forward from Will Herberg's September 7, 1965 National Review article, "'Civil Rights' and Violence: Who Are the Guilty Ones?" (note the scare quotes around civil rights):

For years now, the Rev. Dr. Martin Luther King and his associates have been deliberately undermining the foundations of internal order in this country. With their rabble-rousing demagoguery, they have been cracking the “cake of custom” that holds us together. With their doctrine of “civil disobedience,” they have been teaching hundreds of thousands of Negroes — particularly the adolescents and the children — that it is perfectly alright to break the law and defy constituted authority if you are a Negro-with-a-grievance; in protest against injustice. And they have done more than talk. They have on occasion after occasion, in almost every part of the country, called out their mobs on the streets, promoted “school strikes,” sit-ins, lie-ins, in explicit violation of the law and in explicit defiance of the public authority. They have taught anarchy and chaos by word and deed — and, no doubt, with the best of intentions — and they have found apt pupils everywhere, with intentions not of the best. Sow the wind, and reap the whirlwind.

The lawlessness of "massive resistance" to court-ordered desegregation didn't , of course, much bother National Review. Nor did the lawlessness of widespread efforts throughout the South to deny African-Americans their rights under the Fourteenth and Fifteenth Amendments. But civil disobedience? Affirmative action? That stuff stirs the heart to protest -- something must be done!

A.J. Rossmiller: Getting Iraq WRONG... Again: Michael O'Hanlon, Fred Kagan, and Jack Keane

TAPPED Archive | The American Prospect: GETTING IRAQ WRONG . . . AGAIN.

This has got to be embarrassing for the Washington Post. Or it would be, if their editorial board had the capacity for shame. Three days ago, WaPo ran a big Sunday op-ed on Iraq by three of the biggest supporters -- Michael O'Hanlon, Fred Kagan, and Gen. Jack Keane -- of the "surge," a piece whose opening sentence touted the success of the troop buildup by citing the recent de-Baathification law as "an important step toward political reconciliation." Today, however, a front page WaPo story reports what many of us said from the beginning: the law is not an indication of political compromise, but rather a misleadingly-named Shia effort to further sideline an already outraged Sunni populace.

The article reports, "Approved by parliament this month under pressure from U.S. officials, the law was heralded by President Bush and Iraqi leaders as a way to soothe the deep anger of many ex-Baathists -- primarily Sunnis but also many Shiites such as Awadi -- toward the Shiite-led government." Except that, of course, it did nothing of the kind: "More than a dozen Iraqi lawmakers, U.S. officials and former Baathists here and in exile expressed concern in interviews that the law could set off a new purge of ex-Baathists, the opposite of U.S. hopes for the legislation." Oops! One prominent Sunni politician even described it as "bait," saying the law is set up so ex-Baathists have to go to a specific location to register, where, he says, they're likely to be killed.

Observers like Kagan, Keene, and O'Hanlon have demonstrated again and again that they don't understand Iraq. They may understand the military, but when it comes to the vital political issues involved, they either don't have a clue or they're dissembling on the prime journalistic real estate of the leading news outlet in our nation's capital. Either way, it's disgraceful.

Eric Boehlert: New Hampshire, the press, and incompetence

Media Matters - New Hampshire, the press, and incompetence: The dismal truth about New Hampshire was this: Never has a Granite State primary received so much media attention and been covered by so many journalists. And never has the press so badly botched a New Hampshire vote.

Recall that one of the apparent turning points in the New Hampshire primary came during the January 5 ABC News-Facebook debate, broadcast by ABC News, when Sen. Hillary Rodham Clinton (D-NY) launched a passionate soliloquy about her accomplishments and her desire to "make change" after an opponent tagged her as being "status quo." Her forceful response created an immediate buzz in the debate's press room.

And for good reason. Election observers often love these kinds of unscripted outbursts since they not only break up the campaign trail monotony, where tightly controlled messages are the norm, but they can sometimes define a candidate and a race. It was Ronald Reagan's famous New Hampshire debate eruption back in 1980 -- "I am paying for this microphone!" -- that established him as a fighter.

Not so for Clinton. At least not among the press corps, which immediately pounced. Time's Karen Tumulty claimed Clinton's "flash of anger" had reporters "gasping in shock." Time.com's political blog, Swampland, quickly posted an item about how Clinton's debate response might be the moment observers looked back and pinpointed when Clinton "lost" New Hampshire and the nomination. ABC News' Jake Tapper claimed Clinton became so enraged onstage that he couldn't even "understand what she was saying," and either way, it was likely to "recoil" voters. NBC's Chuck Todd announced that the exchange was "not good" for Clinton. The New York Observer asserted that Clinton was "almost screaming." (She was not.) And after watching the debate, The Washington Post's Joel Achenbach suggested that Clinton's campaign needed to fit the former first lady with an electric shock collar that could zap her when she went astray -- when she became "screechy" -- like a dog being trained on an invisible fence.

It was quite amazing: A roomful of mainstream journalists, representing a host of different backgrounds, ages, and perspectives, all watched the debate and they all came to the exact same conclusion about Clinton's signature response: She blew it big time.

What was also telling was that none of those pronouncements were based on what voters in New Hampshire thought of the debate, or of Clinton's response. They were based solely on what journalists thought of the debate. And they hated Clinton's show of passion.

It turns out ABC News had assembled a focus group of voters to watch the debate and, according to Time, "hooked up voters with electrodes to monitor their brain activity. [Clinton's] flash of anger when the boys ganged up played well with all of them." But again, what did Jake Tapper do? Without checking in with any New Hampshire citizens, he immediately posted an item, which was then linked on the Drudge Report, that announced that Clinton's anger would likely cause voters to "recoil."

In today's campaign coverage, what journalists think about unfolding events takes precedence over what voters think. Voters have become essentially secondary, props in the background that are occasionally queried for a color quote. And that's a big reason why the press missed the New Hampshire story -- that, and the fact that the press was so anxious to write Clinton off as "toast."

It's true that most of the polling data failed to predict Clinton's strong showing in New Hampshire, which also explains why the press corps was caught so off-guard. But the fact remains that there appears to have been a massive voter shift within the New Hampshire electorate in the 72 hours before the vote, a massive shift that nobody in the media detected.

As Media Matters for America's Eric Alterman noted last week, virtually all the corporate press does these days is shallow, polling-based horserace coverage, and now it can't even get that right.

I agree that, normally, the statewide shift that took place in the Granite State might be difficult for journalists to detect. But this was New Hampshire, and a) it isn't that large, or populous, of a state; and b) it was crawling with journalists.

I mean, isn't that why an army of reporters, pundits, and producers numbering in the thousands descended upon New Hampshire, to put their ears to the ground and canvass the state like no other? To get an X-ray-like read on the voters and their concerns? Or did journalists simply descend upon New Hampshire to follow candidates around in a herd while complaining about a lack of access, to read the same polling results they could have read in Washington, D.C., or New York City, and to cling to the same Beltway narrative about the unfolding election?

Where was the journalism? After watching the New Hampshire returns come in, Butch Ward at Poynter Online, a journalism think tank, wrote:

I was struck by how little anyone told me about why people in New Hampshire voted as they did. At one point, I heard the briefest of snippets on one channel that exit polls showed New Hampshire voters had been most concerned with the economy. ... But no one was telling me why. Why? With all of this polling power, why couldn't someone tell me why? After almost a year of nonstop coverage, why can't someone tell me what the most important players in this election -- the voters -- are thinking?

Yet even after the New Hampshire press debacle, editors at the Politico, the Beltway house organ for conventional wisdom, insisted: "Things are not all bad. Politico is part of a broad, technology-inspired movement that has led to more open and more exhaustive coverage of this presidential race than ever before."

The only thing the Politico has covered exhaustively is meaningless tactical campaign nonsense. To read the Politico is to understand that its writers and editors are practically allergic to actual voters. But that's today's media norm.

Here's a perfect example: When Clinton arrived to campaign in New Hampshire following her Iowa loss, she made an obvious tactical adjustment and began engaging with voters more directly, sometimes hours at a time during marathon Q&A sessions. The press dutifully noted the change and then promptly ridiculed it. At washingtonpost.com, Dana Milbank narrated a video piece that thoroughly mocked a New Hampshire rally Clinton hosted, in which she answered questions for hours, declaring the Clinton candidacy effectively over. (The video came complete with a wildly unflattering photo of Clinton.)

Not one voter was interviewed in the three-minute-long video. Instead, it was the journalist who declared Clinton's performance to be a "torpid" "bore." Turns out, voters, based on the final New Hampshire tally, had a very different take on things. Had Milbank bothered to interview some actual voters, maybe he could have saved himself the embarrassment of so badly misreading New Hampshire. (I suppose the word "embarrassment" only applies if Milbank actually cares he was so wrong. I have my doubts.)

Meanwhile, ABC's World News last week described a detailed answer Clinton gave to a voter regarding real estate insurance as "tedious." And according to Washington Post columnist E.J. Dionne, while listening to one of Clinton's issue-driven New Hampshire stump speeches, "a colleague in the press section leaned over to dismiss her for offering nothing but 'a laundry list of wonkery.' "

Note the press' catty performance during this January 5 Clinton campaign event, where the candidate met with undecided young voters and, according to The New York Observer, answered questions in eight-minute intervals:

Reporters sandwiched together in the scrum studied their BlackBerrys and rolled their eyes. One whispered to another sarcastically, "Can you feel the excitement?" Another asked: "Can you please pour some Drano in my mouth?" They began taking bets on who in the audience would fall asleep first. Former CBS Evening News anchor Bob Schieffer said to the rest of the pack: "This event is taking so long we could all grow beards by the end of it."

We know now that as Clinton connected with undecided voters over kitchen-table issues, the critical New Hampshire vote was literally changing right in front of campaign reporters. But they were too busy deriding Clinton -- cracking jokes about drinking Drano -- that they failed to notice the shifting political landscape.

One of the few examples of temperature-taking among voters that I came across last week was posted by Tumulty at Swampland on the day of the primary; after she talked to a waitress named Katie, who, after watching the New Hampshire debate, switched her vote over to Clinton because "she stands her ground."

Perhaps more old-fashioned interaction with voters would have clued the press into the outcome.

Should we be surprised by the media's incompetence? This is, after all, the same modern-day press corps that is still writing about John Edwards' haircut, and during the autumn months, thought Hillary Clinton's laugh was an issue of monumental importance. Perhaps it was not unexpected that when it came time to cover an actual primary vote, the press corps seemed woefully unprepared.

The press has literally forgotten how to do its job, forgotten how to simply be spectators instead of trying to insert themselves as players. As Tom Brokaw famously mentioned on MSNBC on primary night, (arrogant) journalists need to remove themselves from the process and stop trying to affect the outcome. Elections are about voters, not journalists.

Meanwhile, what was mostly overlooked among the media chattering class as it went through the motions of post-New Hampshire faux hand-wringing was that the press was wearing blinders that kept journalists from accurately capturing the temperature in New Hampshire.

Looking back on the New Hampshire debacle, Matt Bai conceded on The New York Times' political blog, The Caucus, "In retrospect, we should have guessed then that the ground was shifting in New Hampshire."

Y'think? Bai blames the media's blindness on an obsession with polling. The truth is the press didn't want to acknowledge the ground was shifting because it liked the erroneous storyline that the Clinton campaign was imploding. (Paging Matt Drudge.) The press was practically celebrating it on the eve of the New Hampshire vote. That's a result of the open contempt many journalists express for Clinton and her campaign. It was that same contempt that produced at-times overtly sexist coverage of the candidate, "a nearly pornographic investment in Clinton's demise" by male pundits, wrote Salon.com's Rebecca Traister.

The disdain for Clinton has been openly broadcast by journalists. Appearing on CNN's Reliable Sources on December 30, The Washington Post's Milbank announced: "The press will savage [Clinton] no matter what."

And just hours before primary day, The New Republic's Jason Zengerle filed this dispatch from the campaign trail:

I was at a dinner tonight with various political reporters who are up here to cover the happenings, and it was pretty funny how giddy/relieved they were at the prospect of a McCain-Obama general election campaign, as opposed to, say, a Romney-Clinton one. Suddenly, the next 11 months of their lives look a whole lot more enjoyable.

That's right, on the eve of the New Hampshire vote, there were mainstream journalists announcing that the press would "savage" Clinton no matter what she did, as well as acknowledging that "giddy" reporters were gathered around dinner tables toasting the demise of her candidacy.

That's how you would expect Clinton's political opponents to react to the news of her faltering campaign. Since when do journalists -- reporters -- think it's OK to mobilize themselves and actively oppose a presidential campaign?

Another dismal truth from New Hampshire: The press is no longer up to the task of helping us pick our next president.