The Trial of KSM

"I consider trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.” - Jefferson

President Obama's decision to try Khalid Sheikh Muhammed in a civilian court was, predictably, none too popular with large portions of the American public. The Right pounced on the President shortly after his announcement, with former Mayor Rudy Giuliani calling the decision "dangerous," irresponsible," and "unnecessary." Amongst all the criticizing and defending of the Administration's decision, many have failed to grasp just how necessary this trial is, how President Obama could be making his most responsible decision since he entered office, and how the only person this trial could potentially be dangerous for is George W. Bush.

There are several qualms one could expectedly have with trying a terrorist in a civilian court, the most obvious being that Muhammed could be acquitted. There are worries from those on the right and left that since much of what Muhammed admitted to was produced via torture, much of it would be inadmissible in court. But it would require a huge lapse of judgment on the Administration's part to try Muhammed in a civilian court without being absolutely sure he'd be convicted. So the simple answer is he will not be acquitted, period. There has to be enough evidence on hand to put Muhammed away for good, and he will almost certainly (and deservedly) be spending the rest of his life in jail. Muhammed had already admitted to his mass murder on 9/11 and other crimes before he was even touched by American hands and Obama would have to be a complete fool to risk putting the mastermind of 9/11 on trial unless it was a slam-dunk case of life in prison.

The second major qualm was raised by the celebrity Sarah Palin, who feared the trial will afford Muhammed an opportunity to "grandstand" and recruit for al-Qaeda. The easiest rebuttal to this is that Muhammed's brand of Islam is so lost in left-field that it is very doubtful that any Muslim he is capable of reaching out to will be swayed by a conspiratorial mad man whose arguments lack any formulation of logic or reason. What will be exposed if Muhammed chooses to make his arguments for a Muslim world governed by Sharia Law is how completely ludicrous the idea of Islamism is. If anything, Muhammed should be allowed to rant about a corrupt and Satanic America that is hoping to destroy Muslims everywhere. The irony may be lost on him, but it will be difficult for the world to see America as the bad guy as it gives a fair trial to a man who planned the murder of nearly 3,000 American citizens.

What this trial really is is a reminder to the rest of the world what Western civic justice really is. Spain tried the individuals responsible for the 2004 Madrid train bombings in an open court. The British tried those accused of the subway bombings in London in a normal courthouse in the nation's capital. India tried the sole remaining terrorist of the 2008 hotel massacre in Mumbai. Even Indonesia held a public trial for those accused of bombing a night club in Bali. And lastly, Israel captured Adolf Eichmann, a Nazi war criminal, in Argentina and brought him back to Jerusalem to stand trial for his crimes. And now we want to hold a trial in New York. This is how justice is done. What Palin and others in the GOP are calling for is either street justice or no justice at all.

There is nothing to fear from trying Muhammed in a civilian court. In fact, Americans should be proud that we are putting this terrible man on trial. This is not in sync with history, but it is in sync with what is and what has always been right. For thousands of years it was the King who decided who died and who lived; who broke the law and who kept it. The idea of a universal justice was foreign to so many nations for so many years and it is the ongoing American experiment that has made that idea a staple of Western civilization. If we give in to fear, as many Republicans are suggesting, we are effectively handing the terrorists the victory. If we are too afraid to try these animals in court then Khalid Sheikh Muhammed already has his victory and he doesn't need to get up in front of a courtroom to proclaim it. What this trial will do is show that no terror is too deep to shake America from its roots, at least not while there is a President in office who will uphold the rule of law. George Bush all too often gave in to terror. By putting Muhammed on trial America will show the world that no temporary evil compromises the American idea.

It is important that the rule of law, once again, finds its place in American politics. Mayor Giuliani was able to grasp the importance of this issue in 2006 during the trial of Zacarias Moussaoui, the 20th hijacker and attempted murderer of American citizens, who is currently serving a life sentence in federal prison: "I think there is value in demonstrating to people what America is like; that we can have these emotional disagreements but in the end, there is the law and we're going to follow it." The rule of law is and continues to be the linchpin of freedom in our society. It is fundamental to who we are as a nation and a polity. John Adams said it best when he said, "A nation of laws, not men." No one seems to understand that more than Adele Welty, whose son was a firefighter killed on 9/11. In regards to the trial, she said: “My son gave his life to save those trapped in the Twin Towers, and it does not honor him that we violate our Constitution in retaliation for what happened on September 11.” If only everyone could grasp this as easily as Adele.

A version of this post appeared in the Tuesday, November 17th Print Edition of the New York Law Review

Glenn Beck: Without a Paddle

Glenn Beck has had a good year. Right now, the disc-jockey turned news pundit is compiling a resume that includes two best-selling books, a TV show on FOX that attracts over two million viewers daily, a radio show that hauls in about six and a half million listeners, and a tea-party movement that draws crowds from anywhere between 70,000 and two million (depending on who you ask). He is the darling of the populist right-wing and the scourge of Obama-defending liberals. The media seem to be infatuated with the crying conservative from the Pacific Northwest and he has left the rest of America scratching their heads. Whether he is being mocked, lampooned, or defended, Glenn Beck has emerged as a legitimate pundit of the right-wing. But before christening him as a populist hero, the right should figure out what exactly is behind the smoke and mirrors of Glenn Beck.

Every weekday at 5 p.m. viewers can watch Glenn Beck make chalkboard illustrations and slide shows about the torrid state of the union, with President Obama being Beck's favorite target. Beck has garnered much criticism for his continual lambasting of Obama, calling the President a racist, a Communist, and frequent violator of the Constitution. Lobbing such accusations at Obama is par for the course on the right-wing and shouldn't make Beck any different than his fellow conservative pundits, but what sets Beck apart from Sean Hannity and Rush Limbaugh is the same thing that makes Jason Bourne cooler than James Bond: Bond works for Mi6, Bourne works for no one; he's a rogue. While Hannity and Limbaugh love to hit back at Obama and the Democratic Party for the betterment of the GOP, Beck is a loud voice for a public disaffected with both parties; he has even said McCain would have been worse than Obama (much to Mark Levin's chagrin). With no political party to call home, Beck has become a truthy champion of the people and his timing couldn't be more perfect: his message continues to resonate with a branch of the right-wing terrified of its current President and his supposed socialist agenda.

While Hannity and Limbaugh have never been stellar models of journalistic integrity, Beck takes fact-flubbing to a whole new level. At the 9-12 protest on Washington, many of the protesters held signs praising Glenn Beck, the unofficial sponsor of the march. The carriers of these signs echoed many of the gripes Beck has with the Obama Administration, and some even sported the tears Beck often sheds. The Obama Administration's numerous "czars" were frequently mentioned, and the public voiced their worry over the "unchecked" advisers with "unlimited" power. What Beck has either failed or chosen not to mention is that the term "czar" arose in the Reagan Administration and has lasted through each Presidency since. George W. Bush currently holds the record for appointing the most czars (who are really advisory committees with very little power) and a large portion of Obama's are leftovers from the Bush Administration.

Over the summer Beck turned much of his attention to Obama-appointed Van Jones, who was selected to be the Green Jobs czar. Glenn Beck brought up Van Jones's past affiliations with Communism, two arrests, and membership in groups like the Apollo Alliance. What Beck failed to mention to his viewers was that Van Jones was a co-founder of the group The Color of Change, which has led a boycott against Beck's show (along with two dozen other sponsors) after Beck called Obama a racist. But perhaps in one of Beck's more intellectually languid rants he suggested that Rockefeller Center contains artwork that was designed by Communists at the beckoning of the Rockefeller family. Several art critics were forced to correct Beck, who got everything from the artist who designed the artwork to the meaning of certain figures in said art, wrong. Although Beck's failure to produce any facts whatsoever in support of his arguments is a daily occurrence, it is his incredible insinuations against the Rockefeller family (which he eventually connected to NBC) that shows from where he gets his hysterical line of thought.

Beck has referred to Cleon Skousen, a Mormon historian and one-man right-wing think tank, as his personal hero. He even went so far as to call Skousen's book, The 5,000 Year Leap, as "divinely inspired." Leap, through the use of Mormon history and eschatology, makes an attempt to re-brand America as a nation founded as a Christian State as opposed to a secular republic. Skousen was never revered for his fact-finding ability and it seems that trait has been passed on to Beck, one of his most enamored disciples. Now thousands of tea-party participants are familiar with the writings of Skousen, all because Beck promoted the book and its message frequently on his show. What most of Beck's followers do not know about Skousen is that he had a highly publicized feud with David Rockefeller and often suggested Rockefeller was part of a "secret cabal" of families hoping to take over the world. This was what Skousen referred to as a "New World Order," which is a conspiracy theory usually involving Freemasons or wealthy Jewish families hoping to create a one-world government. The New World Order is frequently cited by 9/11 conspirators as the group responsible for not only 9/11, but almost every other tragic event in history. It seems that through Skousen, Beck has finally found a link between himself and the 9/11 Truth Movement, a link he tried to attribute to Van Jones. Perhaps the one difference between Beck and his mentor is that Beck often admits he sounds like a lunatic, while Skousen did not.

Though Beck's show is rarely filled with insightful commentary or hard-hitting facts, it is unlikely that Beck's rise in popularity will cease. Much like when people flood into churches when a natural disaster hits, so will Beck's show be a haven for those worried about America's turn to Communism (or Socialism or Nazism, which are all linked in Beck's eyes). Though Bill O'Reilly has touted Beck as "a regular guy" who is merely espousing his views, what we know about the regular guys found amongst the American public is that while they may be hard working and intrepid entrepreneurs, it does not mean all of them should be journalists. While Liberals may be driven crazy by Beck and his supporters, the left should not pay too much attention to Beck; his fact-starved arguments are just as easy to brush away. Who should be concerned about Beck's influence are his temporary allies on the right. Should NY-23 turn out to be a liberal victory, the GOP will have to ask itself whether or not Beck and his constituents are worthy bedfellows. Though the Republicans could just as easily leave Beck on the sidelines, his influence is too hard to ignore. The real question is how valuable Beck's populist followers are: Jon Stewart summarized Beck best when he said, "Finally a guy who says what people who aren't thinking are thinking."

The conservative movement is still leaderless and rudderless. Behind all of the tears and emotional ranting, what we see in Beck is a man who is not only neither, but all too ready to begin preaching that the hull is leaking and we should all abandon ship. What the GOP needs is a leader who can fix the holes and start paddling, and that person is found nowhere near Beck or his line of thought.

A version of this post appeared in the Tuesday, November 3rd Print Edition of the New York Law Review.

Answering the Iran Question

"Simply stated, there is no doubt that Saddam Hussein now has weapons of mass destruction." - Dick Cheney August 26, 2002

The country of Iran has been a persistent headache for just about every American President who has held office in the past thirty years. This long story doesn't begin or end with the current regime, but goes all the way back to the installation of the Shah and America's forays into a Middle Eastern world it still fails to understand. Although the history between our two countries offers insight into the current struggle, it does not help us answer the ever-lingering question: what the hell are we supposed to do about this slippery little country Iran?

Though Iran's pursuit of nuclear weapons is not a new development, its current fervor for the bomb is a little more than unnerving. While in the past Iran has embarrassed itself by using photoshop and propaganda to greatly exaggerate its nuclear capabilities, the rhetoric the regime is using now - coupled with reports from the U.S. - suggests that Iran may actually be serious about building a bomb this time around. The mental image of Mahmoud Ahmadinejad with one of his chubby digits on the red button is scary enough to make anyone convert to Islam, but there are still a few things Americans should remember before we get hysterical about Iran.

Firstly, Iran is in a state of chaos. The regime has lost almost all legitimacy following Ahmadinejad's stolen election, which continues to inspire rioting and protesting in the streets. And as people of Iran air their displeasure and reject their illegitimate government, public officials in Iran have also begun speaking out against Khamenei's theocracy. It would be wise for the U.S. to keep this in mind before it does something rash, like pass sanctions, which would do almost nothing to the corrupt government but would significantly hamper the people's ability to gather and protest. Mir Hossein Mousavi, the de facto leader of the opposition movement, has spoken out against sanctions, saying only the people of Iran will feel the negative effects of such action.

Secondly, a new factor has entered into the equation: Russia. During the Bush years the Russian government refused to budge on Iran, often supplying the Persians with the materials needed to build a nuclear bomb and turning a deaf ear to America's protests. Now that Obama has closed the doors on the needless Missile Defense Shield - which the Kremlin opposed - Putin and Medvedev may finally be ready to discuss Iran. The Russians could be a link to dealing with Ahmadinejad's government: the Kremlin has managed to hold continued talks with the Iranians while also keeping moderately peaceful ties with Israel. If a country like Russia can do this, who is to say the United States cannot? The cooperation of the Russians is a necessity if the U.S. hopes to get anything productive out of its talks with Tehran.

Finally, Iran remains a state with many enemies. The world has often looked towards the Middle East and seen a black and white struggle: Muslims vs. Jews. What the world doesn't realize is that many Muslims in the Middle East view Iran as a heretical state due to their adherence to Shia Islam. A long-developing alliance between Israel and the Sunni nations poses a very real threat to the Shiites in Iran. If the United States understands this and uses it in its diplomacy with the Persians it could very well lead to a mutual understanding our countries have not seen in decades.

Though negotiations with a country like Iran will be draining and perhaps futile, there is one thing all Americans can be excited about: there are actual negotiations on the table. For years we were told that Saddam Hussein had weapons of mass destruction and war was the only way to remove them from his grip, only to realize that faulty evidence and confessions (produced by the use of torture) lead to one of the biggest foreign policy blunders in our nation's history. Because of the nature of the Iranian regime's beliefs (Khamenei and his followers are part of an apocolyptic sect of Shiites who are ready to bring about the end of the world) it is easy to feel uneasy about the prospect of an Iranian bomb. But just as we were lead to believe in Saddam's WMDs, we may be jumping the gun when suggesting the Iranians are ready to produce a nuke. Ex-CIA officer Philip Giraldi offers a helpful word of caution: “The real question for the United States and its citizens should be whether or not Iran constitutes a serious danger and whether the threat level mandates Washington’s launching of another war on the heels of two unsuccessful forays into the Muslim world. Many Americans might also observe that the cost of such a journey into darkness would have catastrophic effect on a crumbling US economy. One could reasonably ask why Congress and the media seem intent on setting the US on a path that can only lead to war, a conflict that could easily have consequences that would gravely damage the United States and its people. Remember the WMD, pilotless drones, chemical weapon labs, and mushroom clouds? The same song is being sung again, but this time everyone should recognize a con job when they see it coming.”

There is a lot to consider before jumping into a war or even diplomacy with Iran. But the sole comfort in this nerve-wracking situation is that there is actual diplomacy happening. Gone are the childish foreign policy tactics of the Bush Administration and finally the adults can sit down and have a conversation. Though the negotiations will not be easy, we should be thankful we have a President who realizes he does not need to beat his chest to show his enemies that we are stronger; we do that by simply being America.

A version of this post appeared in the Tuesday October 5th, 2009 print edition of the New York Legal Review.

Actually, It is About Race (A Little)

Last week writer David Brooks wrote a column in the New York Times explaining to his buddies on the left (namely Jimmy Carter) that Obama's critics don't hate him because of his race, but because of a long-standing struggle between cosmopolitan elites and small-town folksy folks. It was a good point to make, because we are all too quick to yell "Racism!" in America. But Brooks misses something that many others - specifically Republicans - seem to be missing as well.

At the 9/12 Rally Against Everything Obama there were numerous signs reminding us that there is a large portion of America that doubts Obama's citizenship, ancestry, and religion. Now, it goes without saying that we would never see a protester carrying a sign suggesting Sarah Palin is a Muslim. It's just that when we think of Muslims, we usually envision them - in our ignorance - as brown-skinned. This is not to say that there is no such thing as a white Muslim, but the point is that Barack Obama has to deal with certain things that a typical, old-fashioned white President does not. Obama dealt with these accusations as a candidate for the Presidency and he continues to deal with them now. And maybe he likes it.

Most of the country needs no reminding that President Obama is black, but it seems that a large portion of conservatives have trouble grasping Obama's birth in Hawaii: in a recent poll, 42% of Republicans - the response with the highest plurality - said they do not believe Barack Obama was born in the United States; 22% of Republicans haven't made up their minds, but at least 37% are tuned into reality. Does any of this affect Obama? Not in the slightest. In fact, Barack Obama could easily solve this skepticism by asking the State of Hawaii to parade his birth certificate down the streets of cities all across the country. But he won't do this. Instead, Obama had his birth certificate sent to factcheck.org, which after verifying and vouching for the certificate's legitimacy and calling for an end to the conspiracy, not only failed to end the debate over his citizenship, but only led to more skepticism. So why did Obama do this? Because the more time Republicans spend arguing about where Obama was born or what religion he adheres to, the less time they spend attacking his policies. It also makes the Republicans look a whole lot sillier. If the average American catches a glimpse of some of those Tea Party Protest signs questioning Obama's citizenship, then hears the Democratic leadership calling those protesters "crazy," and then a poll comes out that a large number of what is left of the Republican party just might be crazy, then GOP looks a lot less attractive than it used to. It's a cunning strategy and Obama is milking it for all its worth.

So there is a racial element to the GOP's opposition to Obama, but the President happens to use it in his favor. Perhaps it is less about Obama's race and more about the Republican Party's swift descent into irrelevancy: very soon a health care bill will pass through Congress and will be signed into law by the President, an economy that was on the brink of falling off the face of the earth will be in an upswing, and quite a few Republican Senators and House Representatives will be forced into nail-biting races against their newly invigorated Democratic opponents. With all of this on their plate, it is hard to believe that the Republicans are still worried about where President Obama was born. The Republican Party needs to have a long talk with itself and needs to realize that just because they can stand up to a health care bill and draw 70,000 people to D.C. does not mean the rest of this country is ready to throw in the towel on Obama just yet. The road to a Republican revival is still a long ways ahead and much of their leadership have yet to even start the journey.

A version of this post appeared in the Tuesday September 22, 2009 Print Edition of the New York Legal Review

The Million Moron March

"No, I don’t see [a distinction between Bush and Obama]." - Congressman Ron Paul

You'd be hard-pressed to find a person in a more blissful state of patriotic euphoria than a protester in America. Thousands of people lined up like sardines, holding home-made signs, all fighting for the same cause shoulder-to-shoulder; it is the political junkie's hipster rock concert. And yet at every protest the country endures, whether it be anti-war or anti-Bush, anti-Obama or anti-health care, we see the same people in warn out t-shirts and baseball caps that we would rather not see at all: the loud, angry, and largely unpatriotic Neanderthals who compare our leaders to mass murderers and reviled dictators. It was ugly when the left did it to Bush, and it is ugly when the right does it to Obama. But this is not the only thing wrong with this weekend's protests.

The protests held this weekend are a distant cousin of the Tea Party rallies held in support of Republican Primary candidate Ron Paul during the 2008 election. Even though this weekend's protests still retain the Tea Party name, they are less about support for Ron Paul and more about opposition to government spending; Obama's government spending, to be specific. If you walked through the crowd and tried to count the number of signs that decried Obama and his "socialist" agenda, you'd likely give up after 10 minutes. And though the signs comparing Obama to Hitler and Stalin do not represent the Tea Party's message as a whole, the signs calling Obama a socialist do a pretty good job.

The protest was a very hopeful slap in the face to Obama. It is no secret that Obama is vilified by what remains of the Republican party and this protest (largely Republican in its numbers), made no attempt to keep its hatred of all things Obama a secret. Listening to the protesters condemn Obama's increase of the deficit, his bailout of the auto industry, and his massive new health care bill, one can only wonder: Where have they been for the past 8 years?

One of the best examples of the building up of a coalition and a strong air of purpose is the political career of Ronald Reagan. Springing to political life in 1964 as he gave a speech in favor of Barry Goldwater at the Republican Convention, throughout the years that followed Reagan built a movement that breathed new air into conservatism and attempted to restore it to its former glory (which should read: pre-Nixon). Once he was elected, Reagan had the confidence of the American people and four years later he retained that confidence, as the American people re-elected him in one of the biggest landslides in our nation's history. When Reagan spoke out against Jimmy Carter in 1980 and fended off Walter Mondale in 1984, the President had something the Tea Party protesters do not: legitimacy.

Prior to his election in 1980, Reagan spent years speaking out against the big-government policies of the left like: Medicare, the Department of Education, heavy taxes, and the ever-increasing debt. When the protesters now speak out against Obama's health care program, you have to wonder what they thought of Bush's Medicare bill, which will end up costing the country far more money than Obama's current health care proposals. The same can be said of Obama's bailouts (Bush bailed out the banks as well), and his stimulus package (Bush had his own sets of economic stimuli and rebates). All of this is mentioned before we get to Bush's energy bill, farm subsidies, and the creation of Homeland Security - one of the largest expansions of government power in recent decades. For the protesters to give Bush a pass on these issues for 8 years and now do an about-face, it looks less like true concern for the size of government and more like petty partisan politics.

One of the highlights of the weekend was the emphatic support of Congressman Joe Wilson, who famously shouted, "You lie!" at President Obama during his health care speech. It is ironic that many of the protesters have come to call Rep. Wilson their hero (indeed many held signs in support of Congressman Wilson), because he very much represents the Republican movement today. Wilson's gripe with Obama's speech came during the President's correction of false assertions lobbed at his health care proposals. Obama tackled the death panels issue (which funnily enough did not produce any shouts of "You lie!"), and once the President got to the idea that illegal immigrants would be covered by his plan, Joe Wilson "let his emotions get the best of him" and publicly accused his President of lying. While Wilson spent the weekend talking about how much he opposed giving health care coverage to illegals, what he failed to mention is that in the past he has voted to provide taxpayer money for illegal immigrants. When did this happen? In 2003, when he voted for Bush's Medicare bill which gave hospitals that chose to treat illegal immigrants $250,000 annually. Though he can accuse the President of being a liar, the soapbox upon which Joe Wilson stands is made of straw. And the same goes for the Republican movement that now follows him.

In 1910 psychologist Henry Goddard coined the term "moron" when describing patients espousing mild forms of retardation. He got his word from the Greek root moros which means "dull," as in "not sharp." Today's Republican movement has lost all of the tact and sharpness it once possessed, yet retains its fervor. That fervor, aimlessly rage-filled and without conviction, is now directed towards Barack Obama and independents can only look on and be puzzled. As the Republican party continues its battle with amnesia and lobs the same complaints at Obama that they refused to lob at Bush, the political wedge that has already been driven between the right and the rest of the country will only sink in deeper. What the Tea Party protest shows is that 70,000 people can put a whole lot of effort into saying absolutely nothing.

A version of this post will appear in the Monday September 15th Print Edition of the New York Legal Review.

*Intern Zachary Kassover contributed to this article.

Investigating Torture

“A government of laws, not of men.” — John Adams

Yesterday Attorney General Eric Holder announced that he was appointing special prosecutor John Durham to investigate alleged detainee abuse that occurred during the Bush Administration. Much of the news surrounding this announcement painted a picture of a reluctant Eric Holder having his hand forced by the law, all the while hoping not to anger his boss, President Obama. During his presidency Barack Obama has said repeatedly that he does not wish to investigate the torture allegations directed at the Bush Administration, most famously saying that he wants to look "forward instead of backwards." The Obama Administration, while hoping to look forward, looks as if it will be forced to investigate the prior Administration, much to their chagrin. But that is only what it looks like. If we have learned anything about Barack Obama in these past nine months it is that there is always more than meets the eye.

In a 2007 interview with radio talk show host Christiane Brown, Barack Obama said, unequivocally, that if the Bush Administration had broken laws, his Attorney General would investigate: "One of my first acts as president is going to be to call in my new Attorney General to review every single executive order that's been issued, to overturn those that are undermining the Constitution, undermining our civil liberties, that are promoting this cockamamie theory of Unitary government, that says somehow the executive branch does not need to obey the Constitution...and during that process of review, if it’s determined that laws have been broken, then obviously accountability would be part of my Attorney General’s job." So if an investigation has always been on the table, even if it has not been enthusiastically endorsed, why is Obama now against an investigation? The simple answer is that he really isn't.

If the White House had an enthusiastic show of support for a torture investigation it would no doubt encourage many of those on the right and left who hope to see the Bush Administration held accountable for whatever laws it chose to break. But President Obama knows that this would be a politically expensive position to take. Firstly, with a teetering/recovering economy and a nearly blown healthcare bill on the President's plate, the public condemnation for such an act would be difficult to endure. The right would really have at it with Obama over the torture program, and though most polls say Americans disagree with the Republicans on this issue, a public skewering of the President does not often bode well, especially if the Democrats are trying to push important legislation through Congress. By making it seem as if he is simply letting Holder do his job, President Obama basically ties his own hands: there is evidence the Bush Administration broke the law; Holder is investigating and there is nothing Obama can do about it. It allows Obama to retain some of his political capital but to also see what he most likely wants to be done. Obama campaigned against the Bush Administration's use of torture; do we really believe that a civil rights attorney and constitutional law professor merely wants to "forget" that the prior Administration broke the law repeatedly and jeopardized the safety of the country by doing so? Of course not. Obama is for an investigation, he just cannot take the position publicly.

So Obama comes across as reluctant to endorse an investigation, but in private he wants to see it done and through Attorney General Holder, a thorough investigation will occur. Is this political cowardice? Perhaps a little, but most politicians act in their own self-interest anyway. But there could be a point to Obama's hiding in the shadows: while a public call for an investigation would speak volumes to many foreign government's across the world, it would also vindicate the feelings of many terrorists who feel that America is a demonic entity. By allowing Holder to conduct an investigation, almost against Obama's will, America is showing foreign government's that this is how democracy works; even the guy in charge does not get to pull everyone's strings. It is a stark contrast from the Bush Administration, which fired Department of Justice officials that failed to tow the executive branch's line. In this case the Department of Justice is merely doing its job: Bush Administration officials broke the law and we must investigate; we have no choice. It sets a powerful example for world governments hoping to continue experimenting with democracy.

Through all of this, it seems as if Obama still wins, but what is most important is that the rule of law wins, and that is what we are all about, isn't it?

A version of this post appeared in the Tuesday August 25th, 2009 print edition of the New York Legal Review.

Did Conservatism Die with Buckley?

"Conservatives pride themselves on resisting change, which is as it should be. But intelligent deference to tradition and stability can evolve into intellectual sloth and moral fanaticism, as when conservatives simply decline to look up from dogma because the effort to raise their heads and reconsider is too great," - William F. Buckley Jr.

For years, William F. Buckley Jr. was the leader of the Conservative movement. Brilliant, poised, and always ready for a fight, Buckley could run intellectual circles around any liberal that crossed his path and was gutsy enough to expose some of the lunacy that infected the Right. He was a different breed of Conservative; much more capable of of persuading a stalwart liberal than a shouting Rush Limbaugh or a babbling Sarah Palin. Though it has only been a year and a half since his death, it feels as though Buckley has been gone for much longer, which perhaps only speaks to the conservative movement's dire need of an intellectual mind. As Buckley's political activity declined in the new millennium, the Republican party, which for so long held all of the stock in Conservatism, descended into madness. With politicians like George W. Bush and celebrities like Sarah Palin pulling the reins, it is difficult to equate the current GOP with Buckley. In 2009, the party is bereft of the intellectual clout and conviction it had throughout the 20th Century. As the party is dominated by strong personalities as opposed to powerful intellects who egg on the loons that show up at the Town Hall meetings, shouting and refusing to engage in a simple debate about health care, one can only ask: did Conservatism die with Buckley?

In October of 2008 William F. Buckley's son, Christopher, famously endorsed Barack Obama for the Presidency. The move led to Christopher's split with his father's National Review and the "right" almost immediately issued an intellectual fatwa against him. It was indeed strange to think of a Buckley pulling a lever for a Democrat. Buckley wrote an article (published in the Daily Beast, not the National Review) in which he apologized to his father, but admitted he would be voting for Barack Obama. It was less an endorsement of Obama and more a critique of what McCain had allowed himself to become, but one sentence in the article really captures Buckley's reasoning and perhaps also speculates on his what father's convictions would have been come November: "Let me be the latest conservative/libertarian/whatever to leap onto the Barack Obama bandwagon. It’s a good thing my dear old mum and pup are no longer alive. They'd cut of my allowance. Or would they?" After observing John McCain's campaign - which Christopher believed corrupted an otherwise moral and capable leader - and the Sarah Palin pick, would William have followed Christopher's reasoning; like son, like father? It is a scenario left only to speculation (Buckley died in February of 2008), even though William F. had begun to fall out with modern conservatism just before his death. It was no secret that Buckley Sr. was less than a fan of the Bush Administration. In an interview in 2006, an 81 year-old Buckley stated that, "I think Mr. Bush faces a singular problem best defined, I think, as the absence of effective conservative ideology." Buckley made no attempt to hide his disapproval of the Iraq War, a quagmire that he thought would effectively destroy the Republican brand he had sought to create. In fact, Jeffrey Hart, a close friend of Buckley's, wrote in the American Conservative that Buckley felt the Republican party's failure to distance itself from the Bush Administration was intellectual suicide.

Fast forward to 2009 and Buckley's point seems all the more poignant. Bill Buckley the Conservative would have loved a robust debate about health care and would have relished the opportunity to stick it to some liberals who think they know what is good for this country. But sadly it is the lack of debate and the overabundance of asinine arguments and conspiracy theories that make up the gist of the Republican Party's efforts to derail health care. Instead of making an attempt to discuss Obama's healthcare plan, the cartoon characters of conservatism on the right seem content creating dubious straw men and setting them ablaze. Rush Limbaugh has compared Barack Obama to a Nazi, Mark Levin has said that Obama is "at war with the American people," Sarah Palin believes that Obama is trying to create "death panels" that will lead to the euthanizing of the elderly (despite the fact that it was a Republican Congressman who authored to "death panel" portion of the House Bill), Sean Hannity has said he believes Obama resents most of America, and Glenn Beck, in all his brilliance, has stated he believes Obama has a "deep-seated" hatred of white people and white culture (which would have made things awkward for his white mother, if it were true). On top of all this is the "birther" fantasy which purports that Barack Obama was born in Kenya, making his presidency illegitimate. This is what is on the discussion plates of the so-called leaders of the conservative movement. Is there a discussion about what the Republican party plans to do when Medicare and Medicaid consume 20% of GDP in 15 years? Any inquiry into how some Americans have been left financially crippled with medical costs? If the country is looking for answers, its current brand of conservatism has failed to offer any.

One can only wonder why the pundits on talk radio and television have descended into quirky conspiracies and absurdities, doing their best to avoid any real discussion about health care reform. Some would say the answer is that the nuttier the pundits get, the more people listen. But perhaps it's because there really is an intellectual void in the conservative movement. How would Buckley react if he saw Katie Couric interview Sarah Palin? What would he do if he was forced to sit through the Glenn Beck Show? Buckley, the Conservative intellectual, would hopefully call out the charlatans for what they were. William Buckley could easily hold his own against a liberal White House and Democratic Congress, but those he passed the torch to lack the character and wit to follow in his footsteps. As the Republican party falls further out of touch with the American people and the base dwindles down into Congress approval-rating numbers, one can only wonder where Buckley's intellectual conservative movement went.

While there are real, serious objections to Obama's health care plan (cost, over-reaching government control, feasibility), those who harbor these objections are forced to sit back and watch as the hijackers of Buckley's brand of conservatism attempt to do battle with Barack Hussein Obama, the America-hating Kenyan who hopes to drag the country into the depths of socialism. It is a battle they cannot win, because no one but their rabid followers take them seriously. And because of the term they use to describe themselves: "conservative," independents and Democrats find it difficult to take any conservative, Buckley-inspired or not, seriously.

"You cultivate the essential virtues: high purpose, intelligence, decency, humility, fear of the Lord, and the passion for freedom." - William F. Buckley

A version of this post appeared in the Tuesday August 11th 2009 Print Edition of the New York Legal Review.

Politicking Healthcare

"Though this be madness, yet there is method in 't." - Hamlet

As the debate over health care leaves Capitol Hill and makes its way to Main Streets across the country, the citizens of the United States will have their eyes fixed on a Congress and a President that both aim to fix the country's broken system. However, as the current version of the health care bill sits calmly in Washington, wondering what changes will be made to it, the American people have come to view the bill as either a Trojan Horse of Socialized Medicine or a beacon of light in an industry dominated by dark insurance wraiths. There are elements of truth and falsity in each side's argument, and this is the point.

Though many on the Right are up-in-arms about the possibility of the House bill passing, President Obama himself has admitted that the bill will not pass the Senate without Republican support. Even with the newly acquired Franken seat, the Democrats must still overcome the Blue Dogs in the Senate - who will not be voting for a bill that includes a public option - and factor in the possibility that Senators Kennedy and Byrd may not be voting at all. Therefore, the scene is set for a party-line Republican vote against the bill, which after all the Town Hall's and campusing, may not pass. No doubt the Republicans will rush the talk shows and T.V. programs to proclaim victory, but it may be President Obama who (again) comes out the winner.

Though many of the Republicans in Washington are happy to see the health care bill go down in flames, Iowa Senator Chuck Grassley suggests that some of his colleagues in Congress have failed to monitor the polls. Senator Grassley cited one poll that said if health care reform fails, 30% of Americans would point the blame at the health industry, 22% towards Republicans, 11% towards Democrats, and only 4% towards Obama. If those numbers are true, the Republican strategy of "going for the kill," may indeed sabotage the bill, but only at the expense of an almost completely depleted Republican political capital. It is also impossible to assume that President Obama has not seen these poll numbers. Instead Obama, the cunning politician that he is, is doing exactly what he has done time and time again: play opossum and let his enemies come to him; the rope-a-dope.

As Republicans storm Town Hall meetings across the country and scream at their representatives in Congress, Barack Obama is probably sitting in the Oval Office, waiting to pounce. If the health care bill does fail, how easy would it be for President Obama to wheel out a patient who is a victim of the current system, wracked with debt and medical expenses, or rejected because of "preexisting conditions?" The flaws in the current system will be cited by vigorously by the Democrats, and the Republicans, playing the loyal opposition, would immediately be blamed by Obama. The American people, shown handpicked evidence, will be all too quick to believe the President and the Republicans are back at square one.

Though there is a way to debate health care, neither side seems interested in doing so. As the Republicans spread misinformation about the bill (it somehow funds euthanasia and abortions) the Democrats have only responded by blaming the health insurance industry, a tactic many in the party believe will work. The Democrats, birthers of the bill, have not even attempted to engage the Republican Party's falsities, they instead hope the people see the Republican defiance as an embrace of the current system and the corrupt insurance companies that run it. Also, no attention is being paid to the fact that the Republicans under Bush did almost nothing when he passed the largest increase to an entitlement program in the country's history with his Medicare bill. Now, because a Democrat is promoting a big government idea, the Republicans turn out in droves.

The Republicans and the far-Right are seizing this opportunity to use health care as a way to pit themselves against Obama. Senator Demint even called the health care debate Obama's "Waterloo," stating it will "break him." If only the country had a government that actually cared about its people instead of practicing real politik.

The idea of a public option can and should be debated, and the right should not fear it. If the public option is a bad idea, it can be defeated by sound reason and logic. If the public option is somehow a good idea, the right should look for a way to manage it and make sure it does not end up costing this country even more money. The right should also be wary of the very real number of Americans who do not have health care insurance and the corporatism that has taken over the insurance industry. There is a real solution to the health care problem in America, but unfortunately the notion of civics is lost on those in our government and it is business as usual in Washington: personality politics for one's own personal gain.

A version of this post appeared in the August 4th, 2009 Print Edition of the New York Legal Review.

What is Happening in Honduras?

As this article is being written, the Honduran "Tale of Two Coups" is still being woven. The Honduras story surfaced briefly last week and then slipped under the radar, overshadowed by the conglomerate of Michael Jackson, Iran, and Sarah Palin coverage. But the story lingers on even though it is far from the minds of the American populace and its conclusion is as difficult to see as the situation is to understand.

Back in August of 2008 the people of Honduras partook in a Gallup poll which asked them whether or not Honduras was headed towards a "better democracy." 47% of respondents disagreed with that statement and 29% said that they believed Honduras was headed towards a military coup d'etat (the median for such a response in Latin America is around 15%). So the first thing that should be noted is that the Honduran event is not a spontaneous situation; the political turmoil has been brewing for quite some time. Most of this is largely accredited to the ousted President Manuel Zelaya. President Zelaya was not a particularly popular figure prior to his removal, with many Hodurans believing he was too close to Huge Chavez (who has a mere 20% approval rating in Honduras) and an overall disappointment as President. Last month Zelaya attempted to rebuff the Constitution, an act the Supreme Court said was (allegedly) illegal, and told Zelaya to put his plans on hold. Zelaya defied the Supreme Court and the Military ousted him.

What happened is a tale of two coups: one a traditional military coup and another a democratic coup. Zelaya was in all likelihood attempting to amend the Constitution in the hopes of remaining in office. This has frequently happened in South America: democratically elected leaders who wish to remain in power will attempt to extend their reign through democratic means, i.e. amend the Constitution. In Honduras, the Supreme Court decides what is constitutional and what is not and ruled Zelaya's amending attempts as unconstitutional. Zelaya continued to defy the court and was thus left at the mercy of the Army, who is ordered to protect the Constitution. This is where the accusations of a military coup come in. The Army implemented its own leader who will rule until the Presidential election in November. On its surface it seems like the military is clear of blame and Zelaya is a rightly deposed would-be dictator. So why are the people protesting and why is the international community condemning the military's actions?

Following Zelaya's deportation, the Army put a few of the Hondurans constitutional rights on "hold." These include: the right to protest, freedom of transit, freedom of association, freedom in one's home from unwarranted search, seizure, or arrest, and the right of due process. It should also be noted that Zelaya repeatedly said he had every intent of leaving office in 2010. It is quite possible that Zelaya was lying, but removing a President requires more than just assumptions about intent. Zelaya's strong ties to Chavez should also be considered irrelevant: Venezuela has almost nothing to do with Honduras and unless Chavez makes do on his ridiculous claims of invasion, he too should be considered irrelevant. And there is one more complication: taking Zelaya out of the country was illegal, according to the Constitution.

If it sounds like both sides are wrong, then this article has done its job. Neither the military nor Zelaya can claim the high road in this debacle; they'll both have to settle it amongst themselves. This is all the more reason for the U.S. to remain on the sidelines. Obama should encourage Honduras to allow Zelaya back into the country, push for the reinstatement of basic freedoms, and then back off. This is an internal battle that is more complicated than most realize. Perhaps this conundrum was inevitable due to a weak Constitution and is part of the process of writing a new one. After all, how good can a Constitution be if it leaves the power of removing the president with the military on a continent with a long history of military coups? It could be time for a new Honduran Constitution, but the people of Honduras should be left to write it themselves.

With the recent celebration of July 4th fresh in the minds of Americans, we should be thankful that this country has a Constitution that works so well. As Washington said to Adams after Adams became the second President of the United States: "I am safely out and you are safely in." Let's remember that it doesn't always work as easily in other countries.

A version of this post appeared in the Tuesday July 7th Print Edition of the New York Legal Review. Pieces of it were printed in the Cherokee Chronicle Times and Cody Daily Register.

Iran's Next Step

As the horrific violence happening in Iran begins to settle in (but does not cease), and the rioting on the streets becomes "normal," (whatever that means) the watching world anxiously awaits the Islamic Republic's next step. Will it be Islamic? Will it be a Republic?

One thing is for certain: the current Regime, thanks to its acts of brutality and violence inflicted on its own people, has lost all legitimacy with the world and the Iranian people. The nuclear weapons program is essentially finished, the Regime's press releases and official statements have become comedy, and most importantly, the Ayatollah is no longer the spiritual leader he once was; his direct line to Allah has been severed.

So the Regime has two options: step down from power peacefully or rule with an iron fist. As the violence continues in Iran and becomes more horrific, the Regime will be forced to make a decision. The extreme violence used against the people has basically solidified the fact that the Regime attempted to fix the election; if these rioters are just a bunch of sore losers and Iran really is a democracy, why not let them protest? The same reasoning is applied to the filtering of Internet sites. If the election was legitimate, why not let the people discuss it in an open forum? While the crackdown on protesters seems to indicate the Regime will attempt to rule as a fascist government, they do so at their own peril.

If the Ayatollah and Ahmadinejad remain in power, stripped of all legitimacy, they essentially become dictators, and they have to know what the world does to dictators; their neighbor used to be one. With an illegal, dangerous, and now fascist regime sitting in power, Iran's enemies will have few arguments against attacking the country. Those enemies most notably include Israel, but after Saddam's fall and the subsequent power vacuum emanating from within Iran, the Sunni Arab nations are also looking to oust the Shia Regime from power, which the Sunnis see as heretical. Jeffrey Goldberg touches on the Sunni-Shia struggle in this month's Atlantic:

"The conflict between Sunni and Shia is the most consequential in the Middle East because it is so profound and elemental. But precisely because it is so intractable, it might hold the key to solving another seemingly eternal Middle East conflict, the one between Muslim and Jew. The definitive Middle East cliché is, of course, “The enemy of my enemy is my friend.” Well, it turns out that today, more than at any other time in the ruinous 100-year encounter between Arabs and Jews on the strip of land between the Mediterranean Sea and the Jordan River, the two parties in the dispute have a common enemy: the Shia Persian Islamic Republic of Iran. "

We saw Israel's preparation for an attack just before the violence broke out in Iran: Netanyahu announced he would be open to a two-state solution with Palestine, Israel's Sunni neighbor. Already, the plot is being formulated and the roles are being cast: a joint-ventured attack on Iran is looming. Unless, of course, the Regime decides to forfeit their power. But even if they do, Israel may see Iran as less of a threat, but the Sunnis still see the Shia power state as an affront to Muslim hierarchy. If Mousavi does become the President, and a new Ayatollah is put into place, Iran may have a chance of dealing with the Sunnis, and if anyone can do this, it is Mousavi. Though Mousavi has been criticized by many in the West, with even President Obama saying there is little difference between Ahmadinejad and the would-be President (which was probably not a serious accusation, but a cunning political move: the more distance Obama puts between himself and Mousavi, the more legitimate Mousavi is in the eyes of Iranians), Mousavi is actually one of the most liberal and pro-Western political figures in Iran. And he has become much more liberal in the past twenty years. Couple this with the fact that Mousavi has become more than just a political rebel, but a sign of hope for Iranian Democracy, he could be the one that links Iran with the rest of the Middle East.

One thing is for certain: the current Regime has been backed into a corner, with no foreseeable future. In fact, this makes them more dangerous and more likely to be overthrown quickly, be it from within or without. What sane Middle Eastern country would allow a apocalyptic, cult-like, Shia Regime with full knowledge of its impending collapse, to remain in power for very long, especially if the Regime has nuclear aspirations? Ahmadinejad and Khamenei are essentially finished. They will try to hold onto their power for as long as possible, killing more people in the streets and creating more Nedas every day. Their Internet will eventually open up because the economy cannot operate without it and the world will learn of the true brutality and horrific violence the Regime has inflicted. The Mullahs will eventually grow tired of the violence and the power struggle will begin, with the Ayatollah and Ahmadinejad being asked to step down. At that point, hopefully Mousavi is given his title as President and a new constitution can be written, as many Iranians have been demanding. If that new constitution makes Iran into a true democracy, shedding the "Islamic" and becoming a mere "Republic," the world will have the first Muslim liberal democracy in the Middle East. But that remains to be seen.

The only thing that can be guaranteed is that the Iranian people will continue to suffer as they pursue liberty. Hopefully they don't stop their pursuit and their suffering comes to an end.

A version of this post appeared in the Tuesday, June 23rd print edition of the New York Legal Review and was cited elsewhere.