Tag Archives: Julian Sanchez

Galt Has A Moment And A Movement

Christopher Beam in New York Magazine:

Just before Thanksgiving, in an impassioned speech on the floor of the House of Representatives, Ron Paul called for Congress to be groped. The Transportation Security Administration, having rolled out its new airport body scanners, had decreed anyone who opted out could be subjected to the now-infamous enhanced pat-down. “Let’s make sure that every member of Congress goes through this,” Representative Paul said, waving his finger in the air. “Get the X-ray, make them look at the pictures, and then go through one of those groping pat-downs.” Perhaps this would put Congress in touch (quite literally) with real Americans.

Paul, the 75-year-old Texas libertarian and quixotic 2008 Republican candidate best known for his quest to abolish the Federal Reserve, is used to fighting lonely battles. But this time, he had company. Fox News went wall-to-wall on the (nonexistent) health hazards of body scans, naked outlines of passengers, and pat-down paranoia. “If you touch my junk, I’m going to have you arrested,” said newfound freedom fighter John Tyner to a TSA agent in a video that went viral. The left backed Paul too. Salon blogger Glenn Greenwald argued that the screenings had “all the ingredients of the last decade’s worth of Terrorism exploitation.” Blogger Jane Hamsher of Firedoglake called the X-ray devices “porno-scanners.” For one beautiful moment, the whole political spectrum—well, at least both vocal ends of it—seemed to agree: Too much government is too much government.

Maybe it was inevitable that the National Opt-Out Day, when travelers were going to refuse body scans en masse, failed to become the next Woolworth’s sit-in (how do you organize a movement that abhors organization?). It turned out most Americans actually supported the body scanners. But the moment was a reminder of just how strong, not to mention loud, the libertarian streak is in American politics.

No one exemplifies that streak more than Ron Paul—unless you count his son Rand. When Rand Paul strolled onstage in May 2010, the newly declared Republican nominee for Kentucky’s U.S. Senate seat, he entered to the strains of Rush, the boomer rock band famous for its allegiance to libertarianism and Ayn Rand. It was a dog whistle—a wink to free-marketers and classic-rock fans savvy enough to get the reference, but likely to sail over the heads of most Republicans. Paul’s campaign was full of such goodies. He name-dropped Austrian economist Friedrich Hayek’s seminal TheRoad to Serfdom. He cut a YouTube video denying that he was named after Ayn Rand but professing to have read all of her novels. He spoke in the stark black-and-white terms of libertarian purism. “Do we believe in the individual, or do we believe in the state?” he asked the crowd in Bowling Green, Kentucky, on Election Night.

It’s clear why he played coy. For all the talk about casting off government shackles, libertarianism is still considered the crazy uncle of American politics: loud and cocky and occasionally profound but always a bit unhinged. And Rand Paul’s dad is the craziest uncle of all. Ron Paul wants to “end the Fed,” as the title of his book proclaims, and return the country to the gold standard—stances that have made him a tea-party icon. Now, as incoming chairman of the subcommittee that oversees the Fed, he’ll have an even bigger platform. Paul Sr. says there’s not much daylight between him and his son. “I can’t think of anything we grossly disagree on,” he says.

There’s never been a better time to be a libertarian than now. The right is still railing against interventionist policies like TARP, the stimulus package, and health-care reform. Citizens of all political stripes recoil against the nanny state, which is nannier than ever, passing anti-smoking laws, banning trans fats, posting calorie counts, prohibiting flavored cigarettes, cracking down on Four Loko, and considering a soda tax in New York. All that, plus some TSA agent wants to handle your baggage.

Libertarianism has adherents on the left, too—they just organize around different issues. Whereas righty libertarians stew over taxes and bailouts, lefty libertarians despise de facto suspensions of habeas corpus, surveillance, and restrictions on whom you can marry. It’s not surprising that the biggest victories of the right and the left in the last weeks of this lame-duck session of Congress were about stripping down government—tax cuts and releasing the shackles of “don’t ask, don’t tell.”

Much of Americans’ vaunted anger now comes from a sense of betrayal over libertariansim shrugged. Right-wing libertarians charge that the Bush presidency gave the lie to small-government cant by pushing Medicare Part D, No Child Left Behind, and a $3 trillion war. Left-wing libertarians are furious that Obama talked a big game on civil liberties but has caved on everything from FISA to DOMA to Gitmo. Meanwhile, the country faces a massive and growing deficit (too much government!) that neither party has the power or the inclination to fix. If there were ever a time to harness libertarian energy—on left and right—it’s now.

Erik Hayden at The Atlantic with the round-up

Beam and Julian Sanchez at Bloggingheads

Matt Welch at Reason:

Beam’s piece ends on an extended Big But, in which we hear warnings about doctrinal purity, extreme Randian selfishness, Brink Lindsey leaving Cato, and minarchy being “an elegant idea in the abstract.” In the real world, not bailing out banks “would have unfairly punished a much greater number” of homeowners, and so on. Plus, that one Tennessee house burned down, and: Somalia! He ends the piece like this:

It took 35 years for Ron Paul to reach the center of American politics. And it could take another 35 before he or someone like him is back. It’s certainly a libertarian moment—but it’s not liable to last too long. Libertarianism and power are like matter and anti-matter. They cancel each other out.

Radley Balko at Reason:

The first two-thirds of the article are a sort of tour guide of libertarian personalities, factions, and general philosophy. It comes off a bit like Beam describing to Manhattanites some exotic new species discovered in Madagascar, but I suppose that probably is how libertarians come off to people outside the politics/policy/media bubble. This portion of the article is mostly fair, though are still some revealing word and phrase choices. (For example, the Koch brothers are only “infamous” if you don’t happen to agree with them. Just like George Soros is only infamous if you’re opposed to the causes he funds.)

Still, the first two-thirds of the article is mostly a quick and dirty introduction to or primer on libertarianism and the movement surrounding it, with Beam largely playing a neutral storyteller, interviewer, and interpreter.

It’s in the last third of the article there’s a noticeable and disruptive shift in tone. After establishing a certain trust with the reader that casts himself in the role of a mostly neutral observer and chronicler of this libertarian uprising, Beam then stops describing libertarianism, and starts critiquing it himself. The critiques are selective. He picks a few issues, broadly (and sometimes inaccurately, or without appropriate detail) describes the libertarian position, then describes why libertarianism fails on that particular issue. Taken as a whole, these critiques are supposed to support his thesis for the latter third of the article, which is that libertarianism is utopian and impractical. (He neglects to explain how the current system has produced better results, but that’s a different discussion.) I don’t think much of Beam’s critiques, but then I’m also a libertarian.

But it’s not the critiques themselves that I found off-putting. If this had been a straight Jacob Weisberg-style trashing of libertarianism, we could evaluate it on those terms. But this is more subtle and, I think, in some ways more pernicious. This was a thrashing disguised as a primer. That Beam makes these critiques himself comes off as abrupt and, frankly, condescending. There’s an aesthetic I’ve noticed among some journalists that libertarianism is so crazy and off the rails that it’s okay to step outside the boundaries of decorum and fairness to make sure everyone knows how nuts libertarians really are. (A couple years ago, I emailed a prominent journalist to compliment him on a book he had written. His strange response: He thanked me for the compliment, and then ran off several sentences about how dangerous and evil he thought my politics were.)

Reihan Salam:

Radley Balko has written a characteristically astute critique of Chris Beam’s New York magazine article on libertarianism. I think Radley says all that needs to be said on the subject.

Instead, I’d like to throw out a few other approaches to the subject that might have worked better:

(1) While talking to a good friend, we came to the conclusion that while cultural conservatism’s influence has been fading (something we both lament, albeit in different degrees) and while social democratic thinking is moribund, certain kinds of libertarian incrementalism (think Ed Glaeser and Tyler Cowen), not just resigned but comfortable with the idea of a social safety net in an affluent society, have grown more influential. Libertarian purists hate it. But they’ve grown less relevant. This piece might have focused on criminal sentencing, the war on drugs, etc., with a “we’re all libertarians now” coda. The trouble with this piece is that it might be really boring. But it would make sense. And it would avoid a lengthy discussion of minarchism.

(2) A much more fun piece, attuned to a New York audience, would open with the Tea Party’s libertarianism and make a strong case for its hypocrisy: they call themselves libertarians, but here are the subsidies they love, the un-libertarian restrictions they champion, etc. This section would be tendentious and unfair, but that’s the fun of it. And then the piece would argue that modern-day New York city, for all its taxes and regulations, is the real home of liberty: look to the cultural freedom, and also to the entrepreneurial energy of Silicon Alley, etc. Bracketing whether or not this is fair, it would be a provocative piece about who really owns liberty.

(3) Drawing on Amar Bhidé and Tim Wu and Tyler, one could also write a straightforward piece on how Tea Party libertarians and minarchists are misguided because more freedom and more affluence and more government tend to go hand in hand. We get more free and less free at the same time, along different dimensions. Again, this piece might be boring, but not necessarily.

David Weigel:

Beam’s history and etymology are going to be useful to outsiders, who don’t pay attention to this stuff. It’s a better case against libertarian policy, if you want that, than a shouty “investigative” blog post at some liberal site that connects a congressman’s staff to the Koch family with the assumption that evil has just been uncovered. But no case against libertarianism sounds very compelling right now, because any alternative to the managed economy sounds great to a country with 9.9 percent unemployment.

Do libertarians promise utopia? Sure. So do the socialists who came up with the ideas that motivate Democratic politicians. Voters don’t care much about where ideas come from as long as they have jobs. Now, the real test for libertarians will come if a year of Republican austerity budgeting is followed by economic growth. In the 1990s, the new, libertarian-minded Republican congressmen and governors discovered that fast growth allowed them to cut taxes and grow budgets for services that voters liked. In the 2010s, if unemployment falls, will the libertarian Republicans keep cutting budgets and reducing services? It doesn’t sound impossible right now.

E.D. Kain at The League:

In any case, I suspect the many reactions to Beam’s article are not because of any of its insights but rather because it is long and in a prestigious publication, and because it is written in such accessible language. It may not do anything but scratch a few surfaces and regurgitate a number of old anti-libertarian tropes, but that’s to be expected. Look, here I am commenting on it myself, largely because it is long and because so many other people are commenting on it and because I’m surprised at how little it really says about the Libertarian Moment in question.

Matthew Yglesias:

I liked Chris Beam’s NY Mag article on libertarians, but I want to quibble with this:

Yet libertarianism is more internally consistent than the Democratic or Republican platforms. There’s no inherent reason that free-marketers and social conservatives should be allied under the Republican umbrella, except that it makes for a powerful coalition.

People, especially people who are libertarians, say this all the time. But we should consider the possibility that the market in political ideas works is that there’s a reason you typically find conservative and progressive political coalitions aligned in this particular way. And if you look at American history, you see that in 1964 when we had a libertarian presidential candidate the main constituency for his views turned out to be white supremacists in the deep south. Libertarian principles, as Rand Paul had occasion to remind us during the 2010 midterm campaign, prohibit the Civil Rights Act as an infringement on the liberty of racist business proprietors. Similarly, libertarians and social conservatives are united in opposition to an Employment Non-Discrimination Act for gays and lesbians and to measures like the Lilly Ledbetter Fair Pay Act that seek to curb discrimination against women.

Jonathan Chait at TNR:

Let me refine the point a bit. The left-right division tends to center around the distribution of power. In both the economic and the social spheres, power is distributed unequally. Liberalism is about distributing that power more equally, and conservatism represents the opposite. I don’t mean to create a definition that stacks the deck. It’s certainly possible to carry the spirit of egalitarianism too far in either sphere. An economic policy that imposed a 100% tax on all six-figure incomes, or a social policy that imposed strict race and gender quotas on every university or profession, would be far too egalitarian for my taste. Soviet Russia or Communist China are handy historical cases of social and economic leveling run amok.

But in any case, there’s a coherence between the two spheres. Liberals see a health care system in which tens millions of people can’t afford regular medical care, or a social system in which gays face an array of discrimination, and seek to level the playing field. The inequality may be between management and labor, or rich and poor, or corporations versus consumers, or white versus black. In almost every instance, the liberal position is for reducing inequalities of power — be it by ending Jim Crow or providing food stamps to poor families — while the conservative position is for maintaining those inequalities of power.

Economic liberalism usually (but not always) takes the form of advocating more government intervention, while social liberalism usually (but not always) takes the form of advocating less government intervention. If your only ideological interpretation metric is more versus less government, then that would appear incoherent. But I don’t see why more versus less government must be the only metric.

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Filed under Books, Conservative Movement, Politics

Talking About The Clause… No, Not That Claus

Andrew Sullivan rounds up some of this.

Josh Marshall at Talking Points Memo:

A year ago, no one took seriously the idea that a federal health care mandate was unconstitutional. And the idea that buying health care coverage does not amount to “economic activity” seems preposterous on its face. But the decision that just came down from the federal judgment in Virginia — that the federal health care mandate is unconstitutional — is an example that decades of Republicans packing the federal judiciary with activist judges has finally paid off.

Julian Sanchez on Marshall:

And the weird thing is, he’s right… sort of! It does seem like a surprising result, given the last century of Commerce Clause precedent, that anything plausibly describable as economic activity might be found beyond the power of Congress to micromanage. “Preposterous on its face,” even.

But isn’t it preposterous that it’s preposterous? Step back from that steady accretion of precedents and instead just ask how far a federal power to “regulate commerce…among the several states”—especially in the context of separate and parallel powers to regulate commerce with foreign nations and Indian tribes—can plausibly be stretched. Isn’t it the idea that “regulate commerce” could entail a power to require a private individual in a single state to buy health insurance that ought to seem kind of crazy? Shouldn’t we find it more intuitively preposterous that a provision designed for tariffs and shipping rules should be the thin end of the wedge for a national health care policy?

And yet it isn’t! It’s the denial of that infinitely flexible reading that now seems strange. And that’s really strange.

Megan McArdle on Sanchez:

Obviously, I agree with Julian.  I have been reading a lot of well-meaning liberals who are befuddled by the notion that conservatives are going after the mandate, when that runs the risk of bringing on single payer.  Personally, I kind of doubt that, but this is completely beside the point.  On a reading of the commerce clause that allows the government to force you to buy insurance from a private company, what can’t the government force you to do?

This doesn’t seem to be a question that interests progressives; they just aren’t very excited about economic liberty beyond maybe the freedom to operate a food truck.  And so they seem genuinely bewildered by a reading of the commerce clause that narrows its scope, or an attempt to overturn the mandate even though this might lead us into a single payer system.  If you view this solely as tactical maneuvering, perhaps it really is preposterous.

And of course, for some conservatives, these operations are tactical, but for a lot, it’s an actual horror at the ever-expanding assertion of government powers.  I’d like it if they’d get equally horrified about, say, the TSA and the drug laws, but there you are: neither side is as consistently supportive of liberty as I’d like.

Radley Balko:

Next, I posed this question to Chris Hayes on Twitter, so I’ll pose to those of you who read this site who are outraged by the Hudson ruling: Putting aside what’s codified Bill of Rights, which was ratified after the main body of the Constitution, do you believe the Constitution puts any restrictions on the powers of the federal government?

If your answer is yes, what restrictions would those be? And what test would you use to determine what the federal government can and can’t do? I’ve written this before, but after Wickard, Raich, and now, if you support it, the health insurance mandate, it’s hard to see what’s left that would be off-limits. I mean, during her confirmation hearings, Elena Kagan couldn’t even bring herself to say that it would be unconstitutional for the federal government to force us to eat vegetables every day. (She did say it would be bad policy — but that’s a hell of a lot different.)

If your answer is no, that is, that the Constitution puts no real restraints on the federal government at all, why do you suppose they bothered writing and passing one in the first place? I suppose an alternate answer might be that the Constitution does place restrictions on the federal government, but those restrictions have become anachronistic given the size of the country, the complexity of modern society, and so on. To which my follow-up question would be, do you believe there should be any restrictions on the powers of the federal government? Let’s say, again, beyond those laid out in the Bill of Rights.

I guess to get at the meat of the disagreement, I should ask one more: Do you buy into the idea that the people delegate certain, limited powers to the government through the Constitution, or do you believe that the government can do whatever it wants, save for a few restrictions outlined in the Constitution? It’s not an unimportant distinction. I’m not sure it’s consistent to believe that the government gets its power from the people, but the people have gone ahead and given the government the power to do whatever it wants.

I’m not trying to be cute. I’m genuinely interested in how people on the left answer these questions. Rep. Pete Stark, a liberal Democrat, said a few months ago that he believes there are no constitutional restrictions on what the Congress can do. To hear from a sitting Congressman was refreshingly honest. And terrifying.

Jonathan Chait at TNR:

The conservative argument, reflected in Republican judge Henry Hudson’s ruling against the individual mandate, is that purchasing health insurance is the ultimate individual decision, and that abridging this liberty would, in Hudson’s words, “invite unbridled exercise of federal police powers.” If the individual mandate is permissible, writes George Will, then “Congress can doanything – eat your broccoli, or else – and America no longer has a limited government.” Megan McArdle echoes, “On a reading of the commerce clause that allows the government to force you to buy insurance from a private company, what can’t the government force you to do?”

This is the intellectual rationale for the hysterical conservative response to the pasaage of health care reform. By this line of reasoning, the individual mandate springs from a paternalistic desire to compel individuals to engage in behavior that affects nobody but themselves.

But of course, the decision not to purchase health insurance is the very opposite. Those who forego health insurance are forcing the rest of us to cover their costs if they exercise their right to be treated in an emergency room. They are also forcing the rest of us to pay higher insurance rates, now that insurance companies can no longer exclude those with preexisting conditions. That, of course, is exactly why conservatives supported it for so long.

Conservatism’s sudden lurch from supporting (or tolerating) the individual mandate to opposing it as a dagger in the heart of freedom is a phenomenon that merits not intellectual analysis but psychoanalysis. This is simply how conservatives respond in the face of every liberal advance. At such moments the nation is always teetering on the precipice between freedom and socialism. The danger never comes to pass, yet no lesson is ever learned. We simply progress intermittently from hysterical episode to hysterical episode.

Conor Freidersdorf at The American Scene on Chait:

It’s handy to argue against the generalized hypocrisy of incoherent ideological adversaries, though I don’t think that describes Megan McArdle, Julian Sanchez, Radley Balko, or many others who see constitutional problems here, myself included. I’ll see if I can make a case without lapsing into hysteria: If the Obama Administration’s health care reform bill stands, I do not imagine that America is going to cease to be free, or that a decisive blow in the battle between capitalism and socialism will have been struck. Although I would’ve preferred different variations on health care reform, I am not even expert enough to know for sure whether they’d have been more successful.

What does worry me is the notion that the federal government is no longer an entity of enumerated powers – that a limit on its scope purposefully established by the Founders no longer exists. It used to be a check and balance. Is it now completely gone?

If Judge Hudson’s ruling is upheld, I’ll celebrate not because I fear Obamacare – I’m cynical enough to suspect that whatever came next might well make me even worse off – but because a limit on federal power that I care about generally has been re-asserted.

Should his ruling be overturned, I’ll be disappointed because the precedent troubles me: if the commerce clause can prevent me from growing marijuana in my backyard and mandate that I buy a particular kind of health insurance that covers far more than emergency room care, what Congressional action can’t it cover? You’d think from Chait’s post that liberals never approach matters of constitutional law in this way, looking past the utility in a given policy area to ask what the long term implications are for state power.

What I’ve yet to see answered to my satisfaction is Radley Balko’s question

Chait responds to Friedersdorf:

Let me try to reiterate my point.

The legal merits of Hudson’s ruling, which seem to be totally daft, are themselves piggybacked upon a policy argument which is itself highly unpersuasive at best. The political argument, endorsed by Friedersdorf, maintains that the individual mandate represents some dramatic new imposition of Congressional power. Congress’s power may have grown over the years, the argument holds, but the individual mandate represents some new frontier of intrusiveness. It is forbidding an activity (or inactivity) that is more personal and less intertwined with the economy as a whole than almost any previous regulation. It is not dramatically different than a law requiring people to eat broccoli.

But this is totally incorrect. In reality, the individual mandate is much less intrusive and paternalistic than many regulations accepted as Constitutional. The rationale isn’t to make people buy insurance because it’s good for them. If people want to accept the risk of illness on their own, that’s fine. The issue is precisely that they can’t do this without forcing the rest of us to pick up the tab when they 1) show up at the emergency room, or 2) decide to buy private insurance in a now-regulated market.

Regulations to prevent people from offloading their risks onto others are extremely common and extremely necessary. So, again, the right’s portrayal of this as a dramatic expansion of the scope of Congressional action is wildly misleading, and it owes itself not to any sober analysis of federal power but to the psychology of reaction.

Now, Friedersdorf is correct to point out that some libertarians who are not partisan Republicans have endorsed this argument as well. In my view this is a group of people who are deeply inclined to support limited government, and have latched onto an argument in favor of limited government that has gained a political foothold without subjecting the merits of the case to serious scrutiny. They think the case is about drawing a new line against the expansion of Congressional economic power, when in fact the line is far behind the old one.

Freidersdorf responds to American Scene:

Actually, I am endorsing a somewhat different argument, and I apologize if I misstated my position or was less than clear about it. It isn’t that I think the individual mandate is an imposition of Congressional power more dramatic than anything seen before. It is merely one example of the longstanding Congressional tendency to justify all manner of things – gun free school zones, legislation to prevent violence against women, the ability to grow marijuana in my backyard, etc. – under the banner of the commerce clause. Where I come down on these cases has nothing to do with policy arguments: on the merits, some seem like good ideas to me, and others seem like bad ideas, but none strike me as attempts to regulate interstate commerce unless that task is so broad that it imposes no meaningful limit on the scope of federal power. (Speaking of which, I’d still like to see Chait and Kevin Drum answer Radley Balko’s question.)

Chait writes:

Friedersdorf is correct to point out that some libertarians who are not partisan Republicans have endorsed this argument as well. In my view this is a group of people who are deeply inclined to support limited government, and have latched onto an argument in favor of limited government that has gained a political foothold without subjecting the merits of the case to serious scrutiny. They think the case is about drawing a new line against the expansion of Congressional economic power, when in fact the line is far behind the old one.

I actually agree that the individual mandate doesn’t constitute an obvious high water mark when it comes to legislation passed under the umbrella of the commerce clause. But surely Chait understands how constitutional challenges work. Most people who care about the principle at stake don’t get to choose the partisan blowhards on the same side of the issue, let alone the case that someone with standing files, that winds its way through the courts, that results in a favorable ruling, and that has a chance of making it to the Supreme Court. The individual mandate may not constitute a high water mark as legislation, but if it ends up being a SCOTUS test case, the majority opinion that results might well entrench a precedent that goes farther than any before it, and determines the future of the commerce clause for generations. To me, Linda Greenhouse is right: the issue at stake is whether the Rehnquist Court’s jurisprudence is going to be killed in infancy or mature into a more expansive body of law.

Noah Millman also responded to my earlier post.

He writes:

…it is unquestionably within the power of Congress to tax, and the mandate could have been structured as a tax-plus-voucher scheme that would have had exactly identical effects. Does that mean that the law is constitutional? If not, then the reason is entirely some notion of precedent – that if this form of the law is Constitutional then other mandates that could not obviously be structured as a tax (“From this day on, the official language of San Marcos will be Swedish. Silence! In addition to that, all citizens will be required to change their underwear every half-hour. Underwear will be worn on the outside so we can check. Furthermore, all children under 16 years old are now… 16 years old!”) would also be acceptable. If that’s the argument that’s being made, then why are we arguing about the health insurance mandate as such being a threat to freedom?

First of all, the judicial precedent in this case won’t necessarily apply only to future commerce clause cases that involve mandates. Second, people are talking about the mandate as a threat to freedom for all sorts of reasons, many of them nonsensical. There are two arguments that I regard as plausible. One is that the mandate is particularly troubling because it requires payments to powerful corporations that spent millions of dollars lobbying the very people who wrote and passed health care reform. Call it the wonko-industrial complex. What if it gets out of control?! But that isn’t my position. It’s the second argument that I am making: it’s the jurisprudential precedent and the implications for the commerce clause and federalism generally that matter.

Tim Lee:

I get what Julian, Radley, and Megan are saying, and in principle I agree with them. A fair-minded reading of the constitution and the debates that surrounded its enactment makes it pretty clear that the founders’ goal was to create a federal government of far more limited powers than the one we’ve got. But I’m finding it awfully hard to get excited about the federalist boomlet sparked by Judge Hudson’s ruling that the ObamaCare insurance mandate is unconstitutional. I’m not a big fan of ObamaCare, and I wouldn’t be too sad to see portions of it struck down by the courts. But the rank opportunism of the Republican position here is so obvious that I have trouble working up much enthusiasm.

There’s nothing particularly outrageous about the health care mandate. The federal government penalizes people for doing, and not doing, any number of things. I’m currently being punished by the tax code for failing to buy a mortgage, for example. I’d love it if the courts embraced a jurisprudence that placed limits on the federal government’s ability to engage in this kind of social engineering via the tax code. But no one seriously expects that to happen. The same Republican members of Congress who are applauding Hudson’s decision have shown no qualms about using the tax code for coercive purposes.

The test case for conservative seriousness about federalism was Raich v. Gonzales, the medical marijuana case. Justices Scalia and Kennedy flubbed that opportunity, ruling that a woman growing a plant in her backyard was engaging in interstate commerce and that this activity could therefore be regulated by the federal government. If Scalia and Kennedy now vote with the majority to strike down portions of ObamaCare, it will be pretty obvious that they regard federalism as little more than a flimsy pretext for invalidating statutes they don’t like. Or, worse, for giving a president they don’t like a black eye.

Joshua Holland on Balko:

The question’s a straw-man — as evidence that “the left” flatly rejects all limits on the federal government, Balko offers up a statement by Rep. Pete Stark, a liberal from California, which was taken at least somewhat out of context during a town haul meeting with constituents and turned into a minor brouhaha by Andrew Breitbart’s crew a few months back.

More importantly, premising the question on us “setting aside the Bill of Rights” and amendments 11-27 just because they were ratified after the fact is disingenuous. As soon as an amendment is ratified, it becomes part of the United States Constitution, and those amendments happen to codify most of the constraints on the federal government that liberals hold to be the most important. (Balko’s a good civil libertarian who thinks they’re pretty important too.)

Essentially, he’s saying, ‘aside from preventing the government from limiting your right to speak, worship, assemble, petition government for redress, searching or seizing your stuff without due process, forcing you to incriminate yourself, enacting policies that discriminate on the basis of race and gender and guaranteeing a dozen other cherished freedoms, are there any constraints at all that you lefties find legit?’

That aside, the longer answer is that the Framers obviously didn’t create a detailed, step-by-step handbook for governing the U.S., and they didn’t try to anticipate every conflict that might come up in this new federal system they were cooking up. But they knew that conflicts would in fact arise, and they created a court to adjudicate those conflicts. It’s an enumerated power!

Now, the issue before us is what economic activities (or non-activities) the Commerce Clause empowers the feds to regulate, and the Supreme Court has used an expansive – and, yes, expanding – interpretation of that clause for close to 75 years.

Balko, like his fellow libertarians, and, less consistently, conservatives, doesn’t like that interpretation, which is his right. But it is nevertheless what’s known as a “super-precedent” – jurisprudence that’s been tested and affirmed in a not one or two, but a series of cases decided by the courts over the years.

Until maybe 20 or 30 years ago, the idea that judges should, accept in very rare cases, defer to precedent was a key tenet of judicial conservatism. That’s changed somewhat with the right’s focus on “originalism” – the idea that justices should try to glean the original intent of the Framers and put a little less emphasis on upholding precedent. (That shift is why, ironically, when one defines “judicial activism” as a willingness to overturn past rulings, conservative justices have been shown to be far more activist than liberals in recent times.)

So, a shorter answer, speaking as just one lefty, is that I accept any constraints on the government that the Supreme Court, guided, as it should be, not only by the text of the Constitution but also by past precedent– and checked by the states and the executive and legislative branches via the amendment process — holds to be legitimate.

Scott Lemieux on Balko:

Well, I don’t really see the Bill of Rights as a mere aside; these limitations are very important. But that said, to play the mild contrarian I don’t actually have any objection to U.S. v. Lopez. When a statute is not a regulation of economic activity, has no jurisdictional hook, has no necessary connection to a broader regulatory regime, and Congress can’t be bother to explain what the connection to interstate commerce is or why federal action is necessary…I don’t really have a problem with the Supreme Court ruling the statue as beyond Congress’s authority. And while I disagree with United States v. Morrison, this is primarily because I strongly reject the narrow conception of Congress’s enforcement power under Section 5 of the 14th Amendment. I have no problem saying that the commerce clause limits federal ability to intervene in purely local crime enforcement.

Now, I assume the libertarian response will be that this isn’t much, and…this is right. I don’t think in a modern industrial economy there’s any point in the Supreme Court trying to make distinctions between “local” and “national” economic regulations.

One thing I would add, though, is that saying that the Court should not strike down economic regulations under a narrow interpretation of the Commerce Clause is not to say that the power of Congress is unlimited. As many of you know, Madison did not feel that “parchment barriers” were the most important protection against excessive government. Rather, he felt that an institutional design featuring multiple veto points was the central protection. And, in fact, Madisonian institutions have been effective — from my non-libertarian perspective, often much too effective — in limiting the authority of the federal government to regulate the economy. I think these limits are (more than) sufficient, and having the courts try to apply a conception of economic powers more meaningful in an 18th-century agrarian economy doesn’t make any sense.

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Filed under The Constitution

“You Know, If I’d Wanted Dick Cheney As President I Would Have Just Voted For Him.”

Ellen Nakashima at WaPo:

The Obama administration is seeking to make it easier for the FBI to compel companies to turn over records of an individual’s Internet activity without a court order if agents deem the information relevant to a terrorism or intelligence investigation.

The administration wants to add just four words — “electronic communication transactional records” — to a list of items that the law says the FBI may demand without a judge’s approval. Government lawyers say this category of information includes the addresses to which an Internet user sends e-mail; the times and dates e-mail was sent and received; and possibly a user’s browser history. It does not include, the lawyers hasten to point out, the “content” of e-mail or other Internet communication.

But what officials portray as a technical clarification designed to remedy a legal ambiguity strikes industry lawyers and privacy advocates as an expansion of the power the government wields through so-called national security letters. These missives, which can be issued by an FBI field office on its own authority, require the recipient to provide the requested information and to keep the request secret. They are the mechanism the government would use to obtain the electronic records.

Stewart A. Baker, a former senior Bush administration Homeland Security official, said the proposed change would broaden the bureau’s authority. “It’ll be faster and easier to get the data,” said Baker, who practices national security and surveillance law. “And for some Internet providers, it’ll mean giving a lot more information to the FBI in response to an NSL.”

Julian Sanchez at The American Prospect:

At issue is the scope of the Federal Bureau of Investigation’s power to obtain information from “electronic communications service providers” using National Security Letters (NLS), which compel private companies to allow government access to communication records without a court order. The administration wants to add four words — “electronic communication transactional records” — to Section 2709 of the Electronic Communications Privacy Act, which spells out the types of communications data that can be obtained with an NSL. Yet those four little words would make a huge difference, potentially allowing investigators to draw detailed road maps of the online activity of citizens not even suspected of any connection to terrorism.

In their original form, NSLs were extremely narrow tools designed to allow federal investigators to obtain very basic telephone records (name, address, length of service, calls placed and received) that could be linked by “specific and articulable facts” to persons suspected of being terrorists or foreign spies. In 1993, Congress amended the statute to clarify that NSLs could be issued to electronic information service providers as well as traditional phone companies. But wary of the potential for misuse of what the House Judiciary Committee called this “extraordinary device” in a world of rapidly changing technology, Congress placed tight limits on the types of records that could be obtained, making clear that “new applications” of NSLs would be “disfavored.”

The administration is presenting this change as a mere clarification meant to resolve legal ambiguity — as though Congress had simply misplaced a semicolon. Yet the Bush-era Office of Legal Counsel already rejected that argument in a 2008 opinion, concluding that the FBI had for years misread the “straightforward” language of the statute. And clarity is certainly needed, as it is hard to know just what falls under “categories of information parallel to subscriber information and toll billing records.” The standard reference for lawyers in this sphere, David Kris’ National Security Investigations and Prosecutions, simply notes that the scope of NSLs as applied to online activity is unclear. Even the Justice Department seems uncertain. In a 2001 response to congressional inquiries about the effect of the newly enacted PATRIOT Act, DOJ told Congress that “reasonable minds may differ” as to where the line should be drawn between addressing information equivalent to toll billing records and “content” requiring a search warrant.

Congress would be wise to specify in greater detail just what are the online equivalents of “toll billing records.” But a blanket power to demand “transactional information” without a court order would plainly expose a vast range of far more detailed and sensitive information than those old toll records ever provided.

Consider that the definition of “electronic communications service providers” doesn’t just include ISPs and phone companies like Verizon or Comcast. It covers a huge range of online services, from search engines and Webmail hosts like Google, to social-networking and dating sites like Facebook and Match.com to news and activism sites like RedState and Daily Kos to online vendors like Amazon and Ebay, and possibly even cafes like Starbucks that provide WiFi access to customers. And “transactional records” potentially covers a far broader range of data than logs of e-mail addresses or websites visited, arguably extending to highly granular records of the data packets sent and received by individual users.

As the Electronic Frontier Foundation has argued, such broad authority would not only raise enormous privacy concerns but have profound implications for First Amendment speech and association interests. Consider, for instance, the implications of a request for logs revealing every visitor to a political site such as Indymedia. The constitutionally protected right to anonymous speech would be gutted for all but the most technically savvy users if chat-forum participants and blog authors could be identified at the discretion of the FBI, without the involvement of a judge.

Marc Ambinder:

Now, there’s a good faith case to be made that the FBI ought to have this authority. After all, the bad guys don’t use telephones to talk to each other any more. But the FBI has abused the NSL authority, essentially fabricating pretexts for sending NSLs to thousands of people. Since the NSL authority was expanded by the PATRIOT Act, three separate OIG investigations have found abuses that rise above the level of incidental misuse of power. The FBI has excuses: it’s the databases. It’s the urgency of terrorism investigations. It’s the lack of clarity in the language.

The urgency factor is a good excuse for the FBI to have the authority, but not to misuse it. NSLs are issued without prior approval from a judge. They’re now part of the standard anti-terrorism investigatory toolkit. They’re needed.

Democrats on the Judiciary and Intelligence committees are skeptical of the request to change the statute for precisely these reasons, and one senior aide noted that the language was met with some skepticism by Congressional staff who’ve grown wary of FBI excuses for overreach.  Then again, it is always hard for members of Congress to say no to something that the FBI claims is vital for its counterterrorism efforts.

There is a compromise here: the FBI can subject its NSL issuances to post-facto review from judges, who can decide whether the FBI’s pretexts are sufficient. The FBI doesn’t need to get a judge’s permission to issue an NSL and the internet provider can’t wait until the judicial review kicks in. This way, the FBI can get what it needs and there’s a check on that power.

But this compromise won’t work. The FBI issues tens of thousands of NSL requests per year, most of them for telephone records and other information, like credit reports. There’s no way a judge can individually approve, even in retrospect, tens of thousands of requests without significantly adding to already overflowing caseloads.

So, in the end, as with almost every issue about national security information, the question is one of trust. Can the American people, through Congress, trust the FBI to use this authority properly?  Maybe the administration and the FBI should answer this question: given past abuses, what steps will you take to ensure that this authority isn’t abused?

Kelley Vlahos at The American Conservative:

It seems so perverse and creepy, considering that WaPo reported only last week in its “Top Security America” series that the federal government’s behemoth intelligence/security apparatus has way more data than it can possibly analyze effectively. It’s  disheartening that the administration admits it’s targeting those hold-out Internet service providers that have been heretofore unwilling to play ball with the feds. In other words, private companies that have, so far, resisted the government’s push for greater authority and control over the Net.

Senior administration officials said the proposal was prompted by a desire to overcome concerns and resistance from Internet and other companies that the existing statute did not allow them to provide such data without a court-approved order…

To critics, the move is another example of an administration retreating from campaign pledges to enhance civil liberties in relation to national security. The proposal is “incredibly bold, given the amount of electronic data the government is already getting,” said Michelle Richardson, American Civil Liberties Union legislative counsel.

I guess it’s safe to say now that civil libertarians have been thoroughly hosed (in other words, hoodwinked, flimflammed, bamboozled, duped, chiseled and burned) by Barack “the constitutional law professor” Obama. The question remains, how far will he go?

James Joyner:

The 4th Amendment’s requirement that “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seize” is really a nuisance, the Obama administration argues.

[…]

I understand any administration’s or agency’s desire to accumulate more power — after all, they’re decent folk who just want what’s best for the country.  But I don’t get how this passes judicial scrutiny.

While I’ve got a strong libertarian streak and am staunchly protective of our rights under the Constitution, I’m not an absolutist.   Even our most fundamental liberties, such as freedom of speech and assembly, have to be balanced against the rights of others and the need for public safety.

During the Bush administration, I defended the idea that the government ought to be able to conduct data mining operations on mass communications with persons of interest overseas.   My rationale was that this wasn’t a “search” in any meaningful sense because it was just computer algorithms sifting through impersonal information, that there would be no way to show probable cause ahead of time, the targets were overseas operatives, and that the purpose was intelligence gathering rather than prosecution.   So, the harm to individual liberty was small and mostly theoretical while the potential harm to society from not gathering the information was substantial.

But this is something quite different:  Specific searches of activities carried on by specific American citizens domestically.   Further, it’s not like the records are going anywhere, making seeking out a magistrate and getting a proper warrant a minor burden.   So there’s no reason that a warrant can’t be obtained and no additional risk to society by going through the process required by the Constitution outside the ones intended by the Framers.

Matthew Yglesias:

Of course, checking out someone’s browser history could be very useful in a terrorism investigation. But if I had some kind of cause—probable cause, let’s say—to suspect someone of involvement in terrorism, I could just get a warrant. If I want to see whether my wife has a secret Match.com account, by contrast, I’m going to need some kind of authority to compel private companies to divulge this information without me needing to explain myself to a judge.

FBI personnel are, I’m sure, overwhelmingly decent and honorable people whose subjective understanding is that they want to use these enhanced powers for legitimate purposes. But who among us, when being honest, has never misused work resources a bit for personal purposes? Everyone slacks off on the job. Everyone has moments of prurient interest in the lives of other people. Taking the gloves off, surveillance-wise, is much more likely to lead to abusive behavior than to super-awesome counterterrorism operations.

Emptywheel at Firedoglake:

Make no mistake. This is one of the most important pieces of civil liberties news in a long time. The Obama Administration is asking Congress to sanction the collection of internet records without a warrant–the kind of shit they used to do without a warrant, until people expressed their opposition.

But then Democrats took over and now they want legal sanction and now–Voila, a request that presumably provides cover.

Kevin Drum:

I forget. How many NSLs do the FBI and other federal agencies already send out every year? 30,000? 50,000? What’s it up to now? Whatever it is, I guess it’s still not enough. That business of getting approval from a judge is just so annoying, after all.

You know, if I’d wanted Dick Cheney as president I would have just voted for him.

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Filed under GWOT, Political Figures, Surveillance, Technology

The Passion Of The Gibson

Radar Online:

WARNING: This audio may not be reproduced or republished.

It is the audio tape that could destroy Mel Gibson.

The Hollywood star is accused by Oksana Grigorieva of hitting her and their infant daughter in an explosive argument recorded on tape, obtained and released exclusively by RadarOnline.com.

“You hit me, and you hit her (Lucia) while she was in my hands! Mel, you’re losing your mind. You need medication,” Oksana tells him on the newly released tape.

And Mel, raging at Oksana, is caught on audio telling her: “I want my child, and no one will believe you.”

PHOTOS: Celebrity Racist Rants

It may be the most damaging tape against Mel yet. RadarOnline.com has released five other audio portions with Mel spewing vile, racist rants, threatening Oksana and telling her she “f*cking deserved it” after she complained that he hit her.

But this, the sixth excerpt released exclusively by RadarOnline.com, may have the most serious consequences for Gibson, as a criminal investigation has been launched against him while he and Oksana battle in court for custody of their eight-month-old daughter Lucia. An investigation by the Department of Children and Family Services is also ongoing.

PHOTOS: Oksana Through The Years

In the crucial part of the newly released tape, Oksana refers to January 6, the night she alleges Mel punched her in the face and damaged her two upper front teeth.

RadarOnline.com was first to report that Oksana told law enforcement authorities she was holding Lucia, who was two months old, when Mel punched her. And RadarOnline.com broke the news on Thursday that Oksana says she has a photograph of the baby with a bruise on her face after the incident.

EXCLUSIVE PHOTOS: See The First Photos of Mel and Oksana In a Passionate Embrace On The Beach

In this new tape, Oksana refers to that incident and tells Mel that there is something wrong with him and he needs medication. This is the recorded dialogue after she says that:

Oksana: You cannot raise the child with these symptoms.

Mel: What?

Oksana: You’re acting as a crazy man right now and you have been for many, many months. And you hit me, and you hit her (Lucia) while she was in my hands! Mel, you’re losing your mind. You need medication.”

Mel: You need a f*cking kick up the a** for being a b*tch, c*nt, gold digging whore! With a p*ssy son! And I want my child, and no one will believe you! So f*ck you!”

PHOTOS: Celebrity Death Threats

While there is cross talk as Oksana and Mel argue, Oksana’s team views it as an admission that Mel hit the baby when he punched Oksana and damaged her front teeth, the source close to the situation told RadarOnline.com exclusively.

Mary Elizabeth Williams at Salon:

When RadarOnline began releasing the violent, racist, horrifying audio clips, purportedly of Mel Gibson raging at estranged girlfriend Oksana Grigorieva, it was a harrowing glimpse into an apparently deeply disturbed mind. And as the shocking clips just kept coming, it also became a field day for jokesters.

On Monday, comic Michael Ian Black took to Craig Ferguson’s couch to pitch himself, “now that Mel has imploded,” as the world’s new favorite Australian. Letterman, meanwhile, offered Gibson’s “Top Ten Excuses.” “Number one: Wanted to show the Jews I’m an equal opportunity offender.” There was the inevitable YouTube “phone fight” pitting rage-a-holic Mel against anger poster-child Christian Bale, along with the so of-the-moment-it-hurts mashup featuring that seriously emo double rainbow guy.  And in a stroke of twisted genius, Buzzfeed went for the win with a choice collection of Gibson’s most colorful quotes set in Hallmark card doodly fonts and accompanied by photos of adorable wide-eyed kittens. Why? Because “mentally deprived idiot” just doesn’t seem so bad coming from a baby animal in a meadow. In my own home, Gibson’s furious “You make me wanna smoke!” has quickly replaced BP CEO Tony Hayward’s “I’d like my life back” as my new favorite expression of exasperation.

David Brooks in NYT:

The story line seems to be pretty simple. Gibson was the great Hollywood celebrity who left his wife to link with the beautiful young acolyte. Her beauty would not only reflect well on his virility, but he would also work to mold her, Pygmalion-like, into a pop star.

After a time, she apparently grew tired of being a supporting actor in the drama of his self-magnification and tried to go her own way. This act of separation was perceived as an assault on his status and thus a venal betrayal of the true faith.

It is fruitless to analyze her end of the phone conversations because she knows she is taping them. But the voice on the other end is primal and searing.

That man is like a boxer unleashing one verbal barrage after another. His breathing is heavy. His vocal muscles are clenched. His guttural sounds burst out like hammer blows.

He pummels her honor, her intelligence, her womanhood, her maternal skills and everything else. Imagine every crude and derogatory word you’ve ever heard. They come out in waves. He’s not really arguing with her, just trying to pulverize her into nothingness, like some corruption that has intertwined itself into his being and now must be expunged.

It is striking how morally righteous he is, without ever bothering to explain what exactly she has done wrong. It is striking how quickly he reverts to the vocabulary of purity and disgust. It is striking how much he believes he deserves. It is striking how much he seems to derive satisfaction from his own righteous indignation.

Rage was the original subject of Western literature. It was the opening theme of Homer’s “Iliad.” Back then, anger was perceived as a source of pleasure. “Sweeter wrath is by far than the honeycomb dripping with sweetener,” Homer declared. And the man on the other end of Grigorieva’s phone seems to derive some vengeful satisfaction from asserting his power and from purging his frustration — from the sheer act of domination.

And the sad fact is that Gibson is not alone. There can’t be many people at once who live in a celebrity environment so perfectly designed to inflate self-love. Even so, a surprising number of people share the trait. A study conducted at the National Institutes of Health suggested that 6.2 percent of Americans had suffered from Narcissistic Personality Disorder, along with 9.4 percent of people in their 20s.

In their book, “The Narcissism Epidemic,” Jean M. Twenge and W. Keith Campbell cite data to suggest that at least since the 1970s, we have suffered from national self-esteem inflation. They cite my favorite piece of sociological data: In 1950, thousands of teenagers were asked if they considered themselves an “important person.” Twelve percent said yes. In the late 1980s, another few thousand were asked. This time, 80 percent of girls and 77 percent of boys said yes.

That doesn’t make them narcissists in the Gibson mold, but it does suggest that we’ve entered an era where self-branding is on the ascent and the culture of self-effacement is on the decline.

Every week brings a new assignment in our study of self-love. And at the top of the heap, the Valentino of all self-lovers, there is the former Braveheart. If he really were that great, he’d have figured out that the lady probably owns a tape recorder.

Jonah Goldberg at The Corner:

For starters, I think it’s all unseemly. I don’t think this is the kind of thing that should be spilled out for the public no matter who it is. I think Gibson is clearly troubled and despite his well-documented paranoia, there are many long knives out with his name on them. I think it is grotesque for his wife to release tapes like this (assuming she is the culprit).

Hypocrisy sleuths will note that I took a similar position on Alec Baldwin, of all people.

But I’m much less inclined to buy this conventional wisdom that he’s a mainstream conservative of some kind. I know he’s a committed old school Catholic, or so he says. I know he made a film about Jesus that was very warmly received by many conservatives and criticized by many others. But I’ve seen interviews with him where he could be a commenter on Daily Kos.  The most recent movie I saw him in, Edge of Darkness,  hinged on an absolutely asinine attack on the U.S. government in general and the Bush administration in particular.

My point isn’t to say he’s no conservative because he’s so clearly troubled. Conservatives are, like all other kinds of humans, perfectly capable of mental breakdowns and other tragic maladies. I guess what I object to is the idea that somehow anyone should treat this situation differently because of the man’s  political allegiances, real or alleged. This is a sad situation made all the sadder because there’s such a huge market for it.

Julian Sanchez on Goldberg:

Can we review? The manifestation of Mel Gibson’s “tragic malady” in this instance is that he repeatedly roared threats to kill his estranged ex and burn down her house. And these aren’t exactly idle threats, because in what I can only assume was a terrifying exchange, he alludes to having earlier hit her hard enough to break several of her teeth—something he claims she “deserved.”  I suppose it’s accurate, in a sense, to say he’s “troubled”—there’s obviously something very badly wrong with the guy—though also unusually fortunate in that he’d have ample resources to discreetly seek counseling.

But this is, shall we say, not the usual emphasis of conservatives when discussing people who commit violent crimes. Some unemployable inner city junkie who resorts to theft can expect a lecture on personal responsibility—not sympathy for how “unseemly” it is for his crime to be publicly exposed.  But a multi-millionaire who beats up women and then threatens murder?  He sounds an awful lot like a Victim of Society in Goldberg’s account.

Andrew Sullivan:

I agree that much of this is unseemly to be aired in public, but grotesque? When the woman involved is clearly fearful for her safety? Gibson, in the passage above, is clearly threatening violence against his girlfriend and admits in this passage to a previous brutal assault, saying that a woman “fucking deserved” to have her face punched in and teeth broken. When you listen to the audio, his voice operates as a kind of lethal weapon, a vocal expression of brute violence. It’s terrifying. Jonah Goldberg, perhaps sensing vulnerability as an editor at a magazine that championed Gibson as a religious genius and a, yes, feminist, pivots:

I’m much less inclined to buy this conventional wisdom that [Gibson]’s a mainstream conservative of some kind. I know he’s a committed old school Catholic, or so he says. I know he made a film about Jesus that was very warmly received by many conservatives and criticized by many others. But I’ve seen interviews with him where he could be a commenter on Daily Kos.

Yes, the man who viewed John Paul II as too liberal is actually a lefty. But what we see in this dialogue is deeply revealing, it seems to me, about Gibson’s mindset and the fundamentalist psyche that is undergirding politics and culture the world over.

He is a deeply disturbed man whose “spirituality” is wrapped up in extreme violence and fascist imagery. What motivates him is clearly power – heterosexual white male power – imposed on others by raw violence or the threat of violence. He is a fascist in temperament – which is why racism and anti-Semitism and murderous hatred of gay people come naturally to him. And this is how he sees himself as a Christian.

Will we read any revisions to the encomiums to his disgusting attack on the Christianity of the Gospels in “The Passion”, his depiction of Jesus as a human being killed dozens of times by hook-nosed Jews as a literal expiation for the sins of humanity? Will the right wing now revisit its elevation of this deranged thug as a Christian exemplar? Will Lopez actually revise her view of a man who wishes that the mother of his child be “raped by a pack of niggers”, who uses the c-word liberally, who punches a woman in the face … as a feminist worth revering along with that protector of thousands of child-rapists, John Paul II? Or will we read more posts, like Goldberg’s, suggesting that Gibson is actually a creature of the hard left?

Or will, at some point, the cognitive dissonance actually break? What, one wonders, would it take? What event, what fact, what data could ever undermine the mad certainty of these perverse fanatics?

Christopher Hitchens in Slate:

Every time Mel Gibson unburdens himself of a tirade against Jews or “n______s” or uncooperative females, there are commentators on hand to create a mystery where none exists. When he produced The Passion of the Christ, which lovingly and in detail recycled the bloody myth that all Jews are historically and collectively responsible for the murder of Jesus, it was argued by many mainstream Christians that his zeal for the faith might be a touch lurid but that the film itself was mainly devotional. When he was arrested on the Malibu freeway and screamed abuse at a police officer to the effect that Jews were responsible for all the wars in the world, pundits convened on page and screen to speculate whether our Mel had too much to drink that evening. Not long ago, I watched him go completely bug-eyed on television at a Jewish interviewer who asked him about the latter incident. “You’ve got a dog in this fight, haven’t you?” he hissed. And now, in the wake of a Niagara of cloacal abuse directed at the mother of his youngest child, in which we were spared nothing by way of obscenity and menace and nothing by way of paranoid and sexualized racism, there have been those who diagnose Gibson’s problem as a lack of anger management skills, combined perhaps with a touch of narcissistic personality disorder.

This is extraordinary. We live in a culture where the terms fascist and racist are thrown about, if anything, too easily and too frequently. Yet here is a man whose every word and deed is easily explicable once you know the single essential thing about him: He is a member of a fascist splinter group that believes it is the salvation of the Catholic Church.

[…]

It would be highly surprising if a person marinated in the doctrines of this ideology did not display all sorts of symptoms that were also sexually distraught. Racism very often clusters with sexual revulsion, and Gibson’s rants are horribly larded with this element. His obsessive loathing of homosexuality—so seldom a healthy sign—is also well-known. Less well-remembered, perhaps, is the interview in which he announced that his wife of many years and the mother of his children would not, alas, be able to join him in paradise. It was not a matter of her moral character. It was simply that she had not seen fit to join the one true church. Her condemnation, then, was “a pronouncement from the chair.”

Gibson has now traded in this long-suffering lady—hopelessly rupturing his sacred marriage vows—for another, younger one, who, to phrase it delicately, was almost certainly not picked for her salient Catholic virtues. In doing this, he must have had a consciousness, however dim, of having endangered his immortal soul. Not only that, but also of having parted with a sensational quantity of worldly goods by way of a divorce settlement. And after all that, the new girl won’t do as he says; won’t defer; won’t assume the desired position at a single snap of his fingers. A true gauleiter feels entitled to a bit more by way of luxurious subservience. No wonder, then, that Gibson walks around with neon lights behind his staring eyes, flashing the slogan “Contents Under Pressure.”

Yet I still saw a report the other day about a fan site where the members were just beginning to ask, “What’s with him?” Why is there this reluctance to call something by its right name? It’s not as if Gibson was issuing a cry for help. On the contrary, what he is issuing is the distilled violence, cruelty, and bigotry—and sexual hypocrisy—that stretches from the Crusades through the Inquisition to the “concordats” between the church and Hitler and Mussolini. Yet he’s still reporting for work. When will Hollywood, and the wider society, finally decide to shun and spurn him utterly, both for what he is and for what he represents?

E.D. Kain at The League:

Perhaps this stems from my admiration of Mel Gibson the filmmaker or perhaps it is simply because I hate to see a piling-on when someone is so obviously in such a dire straits, but I feel compelled to come to Gibson’s defense. Obviously, the things Gibson said to his girlfriend were horrible, and if he did hit her then that is even more indefensible. But I think it is also quite obvious at this point that Gibson has a serious addiction problem and quite likely serious mental problems as well. If he has been diagnosed with bipolar disorder, this may account for quite a few of his demons, including his inability to stay on the wagon or to his faith. It may also account, to some degree, for his creative brilliance.

I suppose Gibson is at his best when navigating the straight and narrow of his Catholic teaching (and that he belongs to a traditionalist catholic church is, as far as I can tell, immaterial here). When he falls off that wagon he falls off all the rest. He has admitted that his divorce was his fault, plain and simple. He is now likely at the very bottom of whatever pit he has dug for himself. Guilt over his failed marriage, his drinking problem – it is all converging. And standing at the center of this convergence is the woman he wrecked his marriage upon, like some hideous reminder of all his failings.

Furthermore, these sorts of people – at once rich and creative and hugely vulnerable to bad influences – are like flames to the worst sort of moths. At their worst they are manipulated and taken advantage of and used up. I suspect Oksana Grigorieva is one of these moths – perhaps if Gibson had taped her without her knowledge a broader picture of their relationship would have emerged. I suspect there is much more to the story.

This certainly doesn’t make the things Gibson said any less awful. Then again anger, mental illness, alcoholism, despair – these are powerful and poisonous and anyone has been through any of this – through addiction, despair, divorce, etc. knows that we all say things we don’t mean. (Even those who haven’t had addiction problems or marriage problems have likely been to these dark places inside themselves.) We lash out. We suddenly use the language of our fathers – of a past we thought we’d buried deep. Certainly Gibson was not raised in a home that looked favorably upon minorities. One doesn’t need to be a racist to have that impulse rise up like bile in moments of despair.

I’ve certainly said things I’ve regretted in darker times in my own life. I’m certainly not without my own grave errors, my own hateful words. I can’t imagine being taped during such a painful time as this, in the middle of a hideous fight at the end of a crumbling relationship.

In the end, we have only a few details, only a scrap or shred of the truth, and yet we all rush as quickly as we can to judgment. That’s a wagon we can all easily stay upon and never fall off.

Rufus F. at The League on Kain:

Certainly, me and my wife have had what she calls “kitchen sink fights” before. And couples must fight, as the man said. And, absolutely, the pain of a collapsing romantic relationship can lead people to say terrible things. I’d never want my private life in the depths of its worst moments to be made public that way, and especially not recordings of those kitchen sink fights.

But, here’s the thing: I don’t fight that way. And I’d imagine you don’t either. What disturbs me about those tapes isn’t the language; it’s the level of misogyny. Me and my wife fight about all sorts of things, most of which are fairly stupid. But the way she dresses doesn’t “hurt” me. It doesn’t “humiliate me” if other men find her attractive. Because, ultimately, on some level, I realize that it’s none of my damn business. Whether or not other people find her attractive isn’t something I expect her to control for my sake or me to control for her sake. This isn’t Saudi Arabia, and her autonomy isn’t something she’s done to me. It’s a fact- and a good one.

I think I hear something different than you do in those Gibson tapes. I hear men from my family who try to control the women in their lives. I hear the possessive, always wounded, always manipulative and controlling, insecure creeps whose wives come to my wife for therapy. I hear someone who’s entitled to sex, entitled to tell his partner how to dress and behave, and who ultimately relates all of the choices she makes in her own life to his personal happiness. I hear the man I might have been, if I hadn’t had the extreme good fortune to be sexually attracted, from a young age, to the sort of smart, independent women who wouldn’t take my crap. Acting like that was simply not an option. And it’s totally freeing to accept that your loved ones will think, act, dress, and be whatever way they want to in their own lives without it hurting you or feeling you need to control them.*

Nevertheless, celebrities are not known for surrounding themselves with people who won’t take their crap. And men, or women, who behave this way are often excused because “everyone gets jealous” or “it’s none of our business”. And, of course, none of us can do anything to change how someone else acts in their own personal relationship. But for society to say in a forthright way that men, or women, who treat their loved ones this way need to stop doing so- that doesn’t strike me as a bad thing. Since this is a site that’s leaning libertarian as of late, I think it’s also very healthy to reflect on the ways that bullying individuals can limit the autonomy of others in their private lives, and how often this impacts women. In terms of casting stones, it’s worth remembering that the specific context of Christ’s comment was a city stoning a woman to death out of rage at her sexual choices.

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“Top Secret America” Burning Up The Tubes

Dana Priest and William Arkin at WaPo:

The top-secret world the government created in response to the terrorist attacks of Sept. 11, 2001, has become so large, so unwieldy and so secretive that no one knows how much money it costs, how many people it employs, how many programs exist within it or exactly how many agencies do the same work.

These are some of the findings of a two-year investigation by The Washington Post that discovered what amounts to an alternative geography of the United States, a Top Secret America hidden from public view and lacking in thorough oversight. After nine years of unprecedented spending and growth, the result is that the system put in place to keep the United States safe is so massive that its effectiveness is impossible to determine.

The investigation’s other findings include:

* Some 1,271 government organizations and 1,931 private companies work on programs related to counterterrorism, homeland security and intelligence in about 10,000 locations across the United States.

* An estimated 854,000 people, nearly 1.5 times as many people as live in Washington, D.C., hold top-secret security clearances.

* In Washington and the surrounding area, 33 building complexes for top-secret intelligence work are under construction or have been built since September 2001. Together they occupy the equivalent of almost three Pentagons or 22 U.S. Capitol buildings – about 17 million square feet of space.

* Many security and intelligence agencies do the same work, creating redundancy and waste. For example, 51 federal organizations and military commands, operating in 15 U.S. cities, track the flow of money to and from terrorist networks.

* Analysts who make sense of documents and conversations obtained by foreign and domestic spying share their judgment by publishing 50,000 intelligence reports each year – a volume so large that many are routinely ignored.

These are not academic issues; lack of focus, not lack of resources, was at the heart of the Fort Hood shooting that left 13 dead, as well as the Christmas Day bomb attempt thwarted not by the thousands of analysts employed to find lone terrorists but by an alert airline passenger who saw smoke coming from his seatmate.

They are also issues that greatly concern some of the people in charge of the nation’s security.

“There has been so much growth since 9/11 that getting your arms around that – not just for the DNI [Director of National Intelligence], but for any individual, for the director of the CIA, for the secretary of defense – is a challenge,” Defense Secretary Robert M. Gates said in an interview with The Post last week.

In the Department of Defense, where more than two-thirds of the intelligence programs reside, only a handful of senior officials – called Super Users – have the ability to even know about all the department’s activities. But as two of the Super Users indicated in interviews, there is simply no way they can keep up with the nation’s most sensitive work.

Andrew Sullivan has a round-up

Spencer Ackerman and Noah Shachtman at Danger Room at Wired:

Figuring out exactly who’s cashing in on the post-9/11 boom in secret programs just got a whole lot easier.

U.S. spy agencies, the State Department and the White House had a collective panic attack Friday over a new Washington Post exposé on the intelligence-industrial complex. Reporters Dana Priest and William Arkin let it drop Monday morning.

It includes a searchable database cataloging what an estimated 854,000 employees and legions of contractors are apparently up to. Users can now to see just how much money these government agencies are spending and where those top secret contractors are located.

Check out the Post’s nine-page list of agencies and contractors involved in air and satellite observations, for instance. No wonder it scares the crap out of official Washington: It’s bound to provoke all sorts of questions — both from taxpayers wondering where their money goes and from U.S. adversaries looking to penetrate America’s spy complex.

But this piece is about much more than dollars. It’s about what used to be called the Garrison State — the impact on society of a praetorian class of war-focused elites. Priest and Arkin call it “Top Secret America,” and it’s so big and grown so fast, that it’s replicated the problem of disconnection within the intelligence agencies that facilitated America’s vulnerability to a terrorist attack.

With too many analysts and too many capabilities documenting too much, with too few filters in place to sort out the useful stuff or discover hidden connections, the information overload has become its own information blackout. “We consequently can’t effectively assess whether it is making us more safe,” a retired Army three-star general who recently assessed the system tells the reporters.

Julian Sanchez at Cato:

Intel-watchers have been waiting with bated breath for the launch of the Washington Post’s investigative series “Top Secret America,” the first installment of which appeared today, along with a searchable database showing the network of contractors doing top-secret work for the intelligence community. Despite the inevitable breathless warnings that the Post’s reporting would somehow compromise national security, there’s nothing online as yet to justify such fears, as even the Weekly Standard notes: The information was vetted by intel officials before being posted, and a good portion of it was already in the public domain, if not necessarily collated in such a convenient form.  Indeed, writers like Tim Shorrock, author of the invaluable Spies for Hire, have been reporting on the explosion of intelligence contracting for some time now—and in some instances the information you’ll find in Shorrock’s own contractor database is more usefully detailed than what the Post provides. None of this, to be clear, should at all diminish the enormous achievement of Dana Priest and William Arkin here: The real threat of their damning exposé should be to the job security of intelligence officials and contractors.  They paint a portrait of a sprawling intelligence-industrial complex drowning in data they’re unable to effectively process, and choked by redundancy

Gabriel Schoenfeld at The Weekly Standard:

The first installment of the Washington Post blockbuster, “Top Secret America,” by Dana Priest and William Arkin, two years in the making, is finally out today. It paints a surprisingly unsurprising picture of duplication and triplication in the intelligence world.

The story had provoked alarm among officials, and in some conservative quarters, that vital secrets would be spilled. “Is Wash Post harming intelligence work?” asked the Washington Times on Friday.  For its part, the Office of the Director of National Intelligence even put out a preemptive memo:  “We will want to minimize damage caused by unauthorized disclosure of sensitive and classified information. “

[…]

Indeed, it is hard to spot anything particularly damaging in the story. Its massive database and accompanying map of top-secret facilities in the United States, available on the Web, have been compiled from open-source material.

Leaks of highly classified information can pose a serious threat to our security. But in foreign policy reporting, leaks are also the coin of the realm.  Some of them pose no danger at all. Indeed, they are a principal channel by which the public is informed, which is why the  subject is so contentious.  In this particular instance, there does not even appear to have been a leak.  There is nothing top secret about “Top Secret America” (at least in its first installment). In this respect it is a case of false—and very smart—advertising.

Carol Platt Liebau at Townhall:

Priest intends the article to be scary, and to a certain degree, it certainly is. It’s a searing reminder of how much a “big government” is out of the control even of those who purport to run it.   Although the tone of the piece seems to intend the criticism to be directed toward “Top Secret America” (i.e., the post 9/11 security complex) — any thinking person will realize what the nub of the problem is, and that’s this: Government grows — always, always, always — because that’s the nature of government unless citizens are fortunate enough to have leaders who actually care about restraining it.

Peter Huessy at Big Government:

The Washington Post has published massive amounts of secret intelligence material in the interests, they say, of improving US national security. The two authors, Dana Priest and William Arkin, complain about a national security enterprise that has grown by leaps and bounds since 9/11. The reveal in detail the firms working for the US intelligence community including their location, contracts, and work subjects, whether border security, cyber-security or counter proliferation.

There are two common explanations for the story. First, it is juicy story. It has lots of secret information. And for two reporters, pursuing a Pulitzer Prize in journalism, well isn’t this what reporters do? The second explanation: their view is that the national security establishment represented by the $75 billion intelligence community and its network of firms, organizations and contractors is not serving the American people, that it is bloated, redundant and need of serious downsizing. But all, mind you, to make our security better.

There may be a third explanation. It may be they think little if any of this intelligence work is necessary. Nearly a decade ago, on October 12, 2002, William Arkin, the co-author of the article, spoke at the Naval War College. One key part of his talk is nearly identical to the thesis of the Post article.  He said: “More than 30 billion of our tax dollars each year go towards government generated intelligence information. We had, and have, a CIA and an intelligence community that has a fantastic history of failure, that is mostly blind to what is going on in the world, that seems to know nothing and at the same time is so bombarded and overwhelmed with stimuli from its millions of receptors it can hardly sense what is happening.”

Arkin goes on in his 2002 speech to blame America for the terrorist attacks of 9/11.  He says our military prowess forced our adversaries to use attacks against our vulnerable infrastructure, such as airplanes or trains because they could not successfully fight our military. And he says our support for Gulf autocracies and stationing troops there gave cause for the attacks of 9/11. The implied solution is very simple: stop supporting harsh regimes, withdraw our forces from the Gulf and terrorism disappears.

This underlying view of what we are supposedly facing permeates the Post story as well. They describe what they think this vast intelligence enterprise is trying to do: “defeating transnational violent extremists,” “fortify domestic defenses and to launch a global offensive against al-Qaeda,” and find “clues that lead to individuals and groups trying to harm the United States.”

I have one small quibble, however, which is with the “redundancy and waste” argument about multiple agencies doing the same work.  This is a standard argument in favor of rationalization, and it’s not always wrong.  It should be noted, however, that some redundancy is actually a good thing, particularly on an issue like counter-terrorism.

Say a single bureaucracy is tasked with intelligence gathering about threat X.  Let’s say this bureaucracy represents the best of the best of the best — the A-Team.  The A-Team does it’s job and catches 95% of the emergent threats from X.  That’s still 5% that is missed.

Now say you have another independent bureaucracy with a similar remit.  This agency is staffed by different people with their own set of blind spots.  Let’s even stipulate that we’re talking about the B-team here, and they’ll only catch 80% of the emergent threats from X.

If thesr two bureaucracies are working independently — and this is an important if — then the odds that a threat would go unobserved by both bureaucracies is .05*.2 = .01 = 1%.  So, by adding another bureaucracy, even a less competent one, the chances of an undetected threat getting through are cut from 5% to 1%.  That ain’t nothing.

Glenn Greenwald:

What’s most noteworthy about all of this is that the objective endlessly invoked for why we must acquiesce to all of this — National Security — is not only unfulfilled by “Top Secret America,” but actively subverted by it.  During the FISA debate of 2008 — when Democrats and Republicans joined together to legalize the Bush/Cheney warrantless eavesdropping program and vastly expand the NSA’s authority to spy on the communications of Americans without judicial oversight — it was constantly claimed that the Government must have greater domestic surveillance powers in order to Keep Us Safe.  Thus, anyone who opposed the new spying law was accused of excessively valuing privacy and civil liberties at the expense of what, we are always told, matters most:  Staying Safe.

But as I wrote many times back then — often by interviewing and otherwise citing House Intelligence Committee member Rush Holt, who has been making this point repeatedly — the more secret surveillance powers we vest in the Government, the more we allow the unchecked Surveillance State to grow, the more unsafe we become.  That’s because the public-private axis that is the Surveillance State already collects so much information about us, our activities and our communications — so indiscriminately and on such a vast scale — that it cannot possibly detect any actual national security threats.  NSA whistle blower Adrienne Kinne, when exposing NSA eavesdropping abuses, warned of what ABC News described as “the waste of time spent listening to innocent Americans, instead of looking for the terrorist needle in the haystack.”  As Kinne put it:

By casting the net so wide and continuing to collect on Americans and aid organizations, it’s almost like they’re making the haystack bigger and it’s harder to find that piece of information that might actually be useful to somebody.  You’re actually hurting our ability to effectively protect our national security.

The Government did not fail to detect the 9/11 attacks because it was unable to collect information relating to the plot.  It did collect exactly that, but because it surveilled so much information, it was incapable of recognizing what it possessed (“connecting the dots”).  Despite that, we have since then continuously expanded the Government’s surveillance powers.  Virtually every time the political class reveals some Scary New Event, it demands and obtains greater spying authorities (and, of course, more and more money).  And each time that happens, its ability to detect actually relevant threats diminishes.  As Priest and Arkin write:

The NSA sorts a fraction of those [1.7 billion e-mails, phone calls and other types of daily collected communications] into 70 separate databases. The same problem bedevils every other intelligence agency, none of which have enough analysts and translators for all this work.

The article details how ample information regarding alleged Ft. Hood shooter Nidal Hassan and attempted Christmas Day bomber Umar Abdulmutallab was collected but simply went unrecognized.  As a result, our vaunted Surveillance State failed to stop the former attack and it was only an alert airplane passenger who thwarted the latter.  So it isn’t that we keep sacrificing our privacy to an always-growing National Security State in exchange for greater security.  The opposite is true:  we keep sacrificing our privacy to the always-growing National Security State in exchange for less security.

Matthew Yglesias:

Beyond this, my main reaction is to think Glenn Greenwald draws too sharp a dichotomy between the view that Priest and Arkin are detailing a story of too much waste and inefficiency and the view that Priest and Arkin are detailing a story of “an out-of-control, privacy-destroying Surveillance State.” The point, as I see it, is that the one necessarily leads to the other. A surveillance state that sucks in everything creates an unmanageable flow of information. Pervasive secrecy makes coordination impossible. The scope and covert nature of the enterprise destroys accountability. In fact, it’s so unaccountable that even the people to whom it’s supposed to be accountable have no idea what’s going on:

In the Department of Defense, where more than two-thirds of the intelligence programs reside, only a handful of senior officials – called Super Users – have the ability to even know about all the department’s activities. But as two of the Super Users indicated in interviews, there is simply no way they can keep up with the nation’s most sensitive work.

“I’m not going to live long enough to be briefed on everything” was how one Super User put it. The other recounted that for his initial briefing, he was escorted into a tiny, dark room, seated at a small table and told he couldn’t take notes. Program after program began flashing on a screen, he said, until he yelled ”Stop!” in frustration.

You can’t possibly run an effective organization along these lines, and the idea that pouring even more hazily defined powers to surveil and torture people is going to improve things is daft. The potential for abuses in this system is tremendous, and the odds of overlooking whatever it is that’s important are overwhelming. Meanwhile, though it’s hardly the key point I note that for all the vast sums of resources poured into the national security state since 9/11, the US government’s foreign language capabilities remain absurdly limited. But it seems to me that just being able to talk to people (and read the newspaper, watch the news, etc.) in their native tongue would produce much more in the way of useful information than all the wiretapping in the world.

UPDATE: Henry Farrell and Daniel Drezner at Bloggingheads

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James Joyner Did The Joke Already: David Weigel To Be Replaced By David Petraeus

Betsy Rothstein at Fishbowl DC:

FishbowlDC has obtained e-mails written by WaPo‘s conservative-beat blogger Dave Weigel, that the scribe sent to JournoList, a listserv for liberal journalists. (Read up on JournoList with Yahoo! News’s Michael Calderone‘s 2009 story that he wrote for Politico).

Seems Weigel doesn’t like (and that would be putting it mildly) at least some of the conservatives he covers. Poor Drudge – Weigel wants him to light himself on fire.

Weigel’s Words:

•”This would be a vastly better world to live in if Matt Drudge decided to handle his emotional problems more responsibly, and set himself on fire.”

•”Follow-up to one hell of a day: Apparently, the Washington Examiner thought it would be fun to write up an item about my dancing at the wedding of Megan McArdle and Peter Suderman. Said item included the name and job of my girlfriend, who was not even there — nor in DC at all.”

•”I’d politely encourage everyone to think twice about rewarding the Examiner with any traffic or links for a while. I know the temptation is high to follow up hot hot Byron York scoops, but please resist it.”

•”It’s all very amusing to me. Two hundred screaming Ron Paul fanatics couldn’t get their man into the Fox News New Hampshire GOP debate, but Fox News is pumping around the clock to get Paultard Tea Party people on TV.”

Weigel says he “happy to comment” to FishbowlDC but it seems he’s tied up on the phone. Will bring you his remarks as soon as he provides them.

David Weigel:

Below the fold are quotes from me e-mailing the list that day — quotes that I’m told a gossip Web site will post today. I apologize for much of what I wrote, and apologize to readers.

– “This would be a vastly better world to live in if Matt Drudge decided to handle his emotional problems more responsibly, and set himself on fire.”

I apologize to Matt Drudge for this — I was incredibly frustrated with the amount of hate mail I was getting and lashed out. If he wants to link to this post with some headline accusing me of wishing death on him, I suppose he can do so. But I don’t wish that. I was tired, angry, and hyperbolic, and I’m sorry.

– “Follow-up to one hell of a day: Apparently, the Washington Examiner thought it would be fun to write up an item about my dancing at the wedding of Megan McArdle and Peter Suderman. Said item included the name and job of my girlfriend, who was not even there — nor in DC at all.”

I stand by this — I was offended by the way that item was written. I do apologize for reacting like this against the entire Washington Examiner, as my gripe was with one reporter, and the person who gave them this item was apologizing to me.

– “I’d politely encourage everyone to think twice about rewarding the Examiner with any traffic or links for a while. I know the temptation is high to follow up hot hot Byron York scoops, but please resist it.”

I stand by that reaction but apologize for belittling Byron York.

– “It’s all very amusing to me. Two hundred screaming Ron Paul fanatics couldn’t get their man into the Fox News New Hampshire GOP debate, but Fox News is pumping around the clock to get Paultard Tea Party people on TV.”

I stand by this, although I apologize if people find the word “Paultard” offensive. It was a neologism coined during the 2008 campaign to describe fanatical supporters of Paul — I used it in this case to convey how Fox covered those supporters in 2008.

Jonathan Strong at Daily Caller:

Conservative radio host Rush Limbaugh famously said he hoped President Obama would “fail” in January, 2009. Almost a year later, when Limbaugh was rushed to the hospital with chest pains, Washington Post reporter David Weigel had a wish of his own. “I hope he fails,” Weigel cracked to fellow liberal reporters on the “Journolist” email list-serv.

“Too soon?” he wondered.

Weigel was hired this spring by the Post to cover the conservative movement. Almost from the beginning there have been complaints that his coverage betrays a personal animus toward conservatives.  E-mails obtained by the Daily Caller suggest those complaints have merit.

“Honestly, it’s been tough to find fresh angles sometimes–how many times can I report that these [tea party] activists are joyfully signing up with the agenda of discredited right-winger X and discredited right-wing group Y?” Weigel lamented in one February email.

In other posts, Weigel describes conservatives as using the media to “violently, angrily divide America.” According to Weigel, their motives include “racism” and protecting “white privilege,” and for some of the top conservatives in D.C., a nihilistic thirst for power.

“There’s also the fact that neither the pundits, nor possibly the Republicans, will be punished for their crazy outbursts of racism. Newt Gingrich is an amoral blowhard who resigned in disgrace, and Pat Buchanan is an anti-Semite who was drummed out of the movement by William F. Buckley. Both are now polluting my inbox and TV with their bellowing and minority-bashing. They’re never going to go away or be deprived of their soapboxes,” Weigel wrote.

Of Matt Drudge, Weigel remarked,  “It’s really a disgrace that an amoral shut-in like Drudge maintains the influence he does on the news cycle while gay-baiting, lying, and flubbing facts to this degree.”

In April, Weigel wrote that the problem with the mainstream media is “this need to give equal/extra time to ‘real American’ views, no matter how fucking moronic, which just so happen to be the views of the conglomerates that run the media and/or buy up ads.”

Daniel Foster at The Corner:

After making a number of disparaging comments about elements of the Right — including Ron Paul supporters, gay marriage opponents, and fellow blogger Matt Drudge — on a private listserv called “Journolist,” Washington Post blogger Dave Weigel has reportedly resigned this morning.

UPDATE: Early word is that Weigel will be heading to the Huffington Post.

UPDATE II: The HuffPo talk now seems premature. Weigel was seen at the blog’s DC offices today, but it was apparently a social call.

Also, Daily Caller has a bunch of new e-mails from Weigel, disparaging everybody from Rush Limbaugh to Newt Gingrich. I hadn’t seen these yet because the DC‘s servers had been down for much of the morning.

Jeffrey Goldberg:

The liberal blogger Dave Weigel, who was hired by The Post to cover the conservative movement, has resigned, after advising Matt Drudge on a semi-public forum for leftish commentators to set himself on fire. Put aside the controversy over whether the Post, which was advised by its star blogger, Ezra Klein (who once advised parties unknown, via his Twitter account, to “fuck tim russert. fuck him with a spiky acid-tipped dick”) that Weigel would do an excellent and balanced job of reporting on conservatives, even understood that it was hiring a liberal, and not a conservative (Ben Smith has more on this aspect of the controversy), the issue in the newsroom today is, How did the Post come to this?

“How could we destroy our standards by hiring a guy stupid enough to write about people that way in a public forum?” one of my friends at the Post asked me when we spoke earlier today. “I’m not suggesting that many people on the paper don’t lean left, but there’s leaning left, and then there’s behaving like an idiot.”

I gave my friend the answer he already knew: The sad truth is that the Washington Post, in its general desperation for page views, now hires people who came up in journalism without much adult supervision, and without the proper amount of toilet-training. This little episode today is proof of this. But it is also proof that some people at the Post (where I worked, briefly, 20 years ago) still know the difference between acceptable behavior and unacceptable behavior, and that maybe this episode will lead to the reimposition of some level of standards.

Conor Friedersdorf at The Atlantic responds to Goldberg:

Mr. Goldberg and I are in agreement that Mr. Weigel showed poor judgment in emails he sent to a listserv for liberal Washington DC journalists. The indiscretion is something that most journalists I know would guard against, and I also found objectionable his suggestion that links should be withheld from The Washington Examiner as retaliation for a mean-spirited item written by one of its gossip columnists. Links ought to be afforded on the basis of merit, full stop.

But the main “stupidity” on display here is that Mr. Weigel trusted the members of an avowedly private forum to keep his rants off-the-record, as advertised. In others words, he trusted his colleagues too much, and that isn’t a flaw that should disqualify someone from being a reporter, nor should the fact that they have strong, occasionally intemperate opinions, as do we all.

Do we really want to establish a standard whereby the worthiness of a journalist is measured by whether or not he has controversial opinions? Or how adept he is at concealing those opinions?

Let me put this another way. There is no opinion Jeffrey Goldberg could offer on an e-mail listserv that would change my high opinion of the magazine stories he has produced over many years. His work is the only standard by which I judge him, and so long as he writes at the level to which I am accustom, I’ll read him regardless. Obviously that isn’t the standard that high profile media corporations use when hiring reporters and writers, and Mr. Goldberg and I probably both feel a responsibility to our various employers to maintain some hard to define level of discretion when writing for public or even semi-private consumption.

I’ll defend to death, however, the proposition that the work of a journalist should be the only standard by which he is measured. Mr. Weigel’s work is superb: he breaks news, his foremost loyalty is to the facts, and he reliably treats fairly even folks with whom he very much disagrees. The conservatives he covers are the biggest losers here. As Ben Boychuck wrote on Twitter, “I find you insufferable, but indispensable. Sorry you resigned. I’ll read you wherever you land, you magnificent bastard.” That should be the reaction of someone who finds what Mr. Weigel wrote to be distasteful.

Let’s examine the implications of the standard that The Washington Post is actually employing here, and that most newspaper companies would also employ.

— In the excerpt above, Mr. Goldberg quotes an anonymous Washington Post staffer who, it should be noted, spoke disparagingly of his or her own newspaper in a conversation with a journalist from a competing media company. This source disparaged Dave Weigel, The Post, and the people responsible for hiring him, anonymously. In other words, this source’s very actions imply that he or she knows The Washington Post would look unfavorably on the public airing of this opinion, but decided that lack of discretion isn’t the problem so much as being stupid enough to get caught. Do journalists really want to help establish a standard whereby “stupidity” equals transparency?

— Firing Dave Weigel incentivizes more digging into the personal opinions of journalists, and validates the idea that they should be judged on the basis of those opinions, rather than the content of their work. What’s next? E-mails sent to a few people and leaked? Opinions offered at a bar over beers and surreptitiously recorded? Can I reiterate how glad I am to have moved away from Washington DC? (You should hear what I say about De Beers in private!)

— Mr. Goldberg suggests that this episode might “lead to the re-imposition of some level of standards” at The Washington Post, suggesting that the newspaper’s problem is that it employs people like Ezra Klein and Dave Weigel, who’ve exercised poor judgment in writing intended for a private audience. I submit that seeing these two staffers — who are intellectually honest and talented, whatever their flaws — as the problem at The Post is to miss the Mark Theissen for the trees.

Oops, Freudian slip. What I mean to say is that The Washington Post publishes many talented writers at the tops of their games — Gene Weingarten, I’d give half of what I own if I could clone you — but its most egregious flaw is confusing what actually consists of inexcusably poor judgment. To be more specific, by firing Dave Weigel, and continuing to employ columnists like Marc Thiessen, the Post is saying that it is inexcusably poor judgment to utter honestly held, intemperate opinions if they wind up being made public, but it is perfectly acceptable to write an intellectually dishonest, error-filled book on the subject of your main expertise, and to publish columns of the same quality.

Mr. Goldberg and I agree that Dave Weigel showed poor judgment, but by holding him up as the poster child for declining standards at The Washington Post, as opposed to other more deserving targets, the inescapable message is that the quality of a journalist’s actual work for publication matters less than the public image he is able to project. As far as I know, Mr. Thiessen has never said anything intemperate on a semi-private listserv. Apparently that is what’s required if he’s to resign his column — that’s the consequence of a weird standard whereby firings at a newspaper are utterly unconnected to single word actually published in its pages.

More Goldberg:

A couple of people I know and respect have told me that my criticism of Dave Weigel is misplaced; that he tries harder than I thought to be a fair reporter; that he makes mistakes, but everyone makes mistakes. And they’ve provided me with examples of his good reporting. So maybe I’ve made a mistake myself by blogging too fast and too thoughtlessly on this issue. On the other hand, I was repulsed — really repulsed — by his invitation to Matt Drudge to kill himself. I despise violent keyboard-cowboyism, and not only because I’ve received various invitations over the years to kill myself, or let myself be killed, because I’m a supporter of Israel, or because I support the Kurds in their struggle against Saddam, or because I supported the invasion of Iraq (mainly because I’m a supporter of Israel, actually).In any case, I wanted to say this now, and with any luck I’ll return to this subject later.

Ross Douthat:

Set aside the fact that Weigel — who’s actually a left-tilting libertarian rather than a liberal partisan — really is a good reporter, good enough and fair enough to have a number of conservative bloggers rallying to his defense, or at least speaking well of his reporting. The more important point is that no journalistic standard was violated by firing off intemperate e-mails to what’s supposed to be a private e-mail list. Maybe Weigel should have known better than to trust the people on JournoList, and I can certainly understand why once the e-mails were leaked, his ability to cover the conservative movement would be compromised, and a parting of the ways with The Post might seem necessary. But if hitting “send” on pungent e-mails that you assume will be kept private is a breach of journalistic ethics, then there isn’t an ethical journalist in the English-speaking world.  The real story here isn’t Weigel’s public embarrassment — it’s the shame of FishbowlDC for publishing private correspondence, and the disgrace of JournoList for harboring at least one would-be career wrecker. The only decent response is to disband the email list — and to his credit, its founder is doing exactly that.

Jim Geraghty at NRO:

Somebody on Journo-List didn’t like Dave Weigel and decided to publish his most furious and incendiary remarks that he thought — unwisely — that he was expressing in confidence. (At least I hope these were his most furious and incendiary remarks; what could top these? “I’m going to deafen David Brooks with a vuvuzela”?) So what else is on there that, if revealed, could make life difficult for Ezra Klein or Jeffrey Toobin or Paul Krugman or Ben Smith or Mike Allen? Or is the idea that as long as they stay in line, they’ll never have some remark they regret publicized to the world? Did Journo-List evolve into a massive blackmail scheme that ensures no one inside the club will ever speak ill of another member?

Liz Mair

Bruce Bartlett:

Apparently, Dave Weigel has been forced out over some utterly trivial e-mail rants that were published by some shameless idiot. Speculation is that the Post didn’t want a thinking conservative who cared more about facts than the party line, but would rather have some whack-job Glenn Beck wannabe representing the conservative position on the Post web site. I am canceling have canceled my subscription to the Post.

Ezra Klein:

I began Journolist in February of 2007. It was an idea born from disagreement. Weeks, or maybe months, earlier, I had criticized Time’s Joe Klein over some comments he made about the Iraq War. He e-mailed a long and searching reply, and the subsequent conversation was educational for us both. Taking the conversation out of the public eye made us less defensive, less interested in scoring points. I learned about his position, and why he held it, in ways that I wouldn’t have if our argument had remained in front of an audience.

The experience crystallized an idea I’d been kicking around for some time. I was on all sorts of e-mail lists, but none that quite got at the daily work of my job: Following policy and political trends in both the expert community and the media. But I always knew how much I was missing. There were only so many phone calls I could make in a day. There were only so many times when I knew the right question to ask. By not thinking of the right person to interview, or not asking the right question when I got them on the phone, or not intuiting that an economist would have a terrific take on the election, I was leaving insights on the table.

That was the theory behind Journolist: An insulated space where the lure of a smart, ongoing conversation would encourage journalists, policy experts and assorted other observers to share their insights with one another. The eventual irony of the list was that it came to be viewed as a secretive conspiracy, when in fact it was always a fractious and freewheeling conversation meant to open the closed relationship between a reporter and his source to a wider audience.

At the beginning, I set two rules for the membership. The first was the easy one: No one who worked for the government in any capacity could join. The second was the hard one: The membership would range from nonpartisan to liberal, center to left. I didn’t like that rule, but I thought it necessary: There would be no free conversation in a forum where people had clear incentives to embarrass each other. A bipartisan list would be a more formal debating society. Plus, as Liz Mair notes, there were plenty of conservative list servs, and I knew of military list servs, and health-care policy list servs, and feminist list servs. Most of these projects limited membership to facilitate a particular sort of conversation. It didn’t strike me as a big deal to follow their example.

But over the years, Journolist grew, and as it grew, its relative exclusivity became more infamous, and its conversations became porous. The leaks never bothered me, though. What I didn’t expect was that a member of the list, or someone given access by a member of the list, would trawl through the archives to assemble a dossier of quotes from one particular member and then release them to an interested media outlet to embarrass him. But that’s what happened to David Weigel. Private e-mails were twisted into a public story.

[…]

It was ironic, in a way, that it would be the Daily Caller that published e-mails from Journolist. A few weeks ago, its editor, Tucker Carlson, asked if he could join the list. After asking other members, I said no, that the rules had worked so far to protect people, and the members weren’t comfortable changing them. He tried to change my mind, and I offered, instead, to partner with Carlson to start a bipartisan list serv. That didn’t interest him.

In any case, Journolist is done now. I’ll delete the group soon after this post goes live. That’s not because Journolist was a bad idea, or anyone on it did anything wrong. It was a wonderful, chaotic, educational discussion. I’m proud of having started it, grateful to have participated in it, and I have no doubt that someone else will re-form it, with many of the same members, and keep it going. Hopefully, it will lose some of its mystique in the process, and be understood more for what it is: One of many e-mail lists where people talk about things they’re interested in. But insofar as the current version of Journolist has seen its archives become a weapon, and insofar as people’s careers are now at stake, it has to die.

As for Dave, I’m heartbroken that he resigned from The Post. Dave is an extraordinary reporter, and a dear friend. When this is done, there will be a different name on his paychecks, but he will still be an extraordinary reporter, and a dear friend.

James Joyner:

It’s a shame that Dave, who most agree is a rising star, had to pay such a high price for some indiscreet emails, especially since a fellow journalist violated his confidentiality.   One suspects, and I certainly hope, that he’ll land on his feet soon.  My guess is that Reason or the Washington Independent, both of which are much more openly ideological publications than WaPo, will happily take him back.

You know who would be a good replacement for him at the Right Now blog?  David Petraeus.

UPDATE: Julian Sanchez at Megan McArdle’s place

Philip Klein at The American Spectator

Tyler Cowen

James Wolcott

Foster Kamer at The Village Voice

Weigel himself at Big Government

Greg Sargent responds to Goldberg

Goldberg responds to Sargent

Matt Welch at Reason

Matt Steinglass at DiA at The Economist

UPDATE #2: Greg Marx at Columbia Journalism Review

Andy Barr at Politico

UPDATE #3: David Carr at NYT

Matthew Yglesias

Digby

UPDATE #4: Weigel in Esquire

Charles Johnson at LGF

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Jay Rosen Writes A Treatise

Jared Keller at The Atlantic rounds this up

“What is the actual ideology of our political press?” Hundreds of articles have been composed concerning this question, and countless organizations founded to combat the perceived bias in American media. While debate about the nature and slant of this bias persists, NYU professor and consummate media critic Jay Rosen believes he’s found an answer.

Jay Rosen:

What is the actual ideology of our political press? There are two camps on this question: one is huge and includes almost everyone who has declared a position. The other is tiny; it includes almost no one. I’m in the tiny camp, not completely alone but— well, there aren’t too many of us. (And if you’re one, raise a hand in the comments.)

The big camp includes everyone who thinks it’s easy to describe the ideology of the political press in the United States. Most on the progressive left, most on the conservative right, and almost all of the people in the press itself think this way. Of course, they would describe that ideology very differently, but that it can be done in a sentence or two… about this they have little doubt.

(Now I’m generalizing here, okay? This means I’m aware that there are exceptions and that I am overlooking certain nuances that divide observers within camps.)

The left says: Look, it’s very simple. The political press ultimately serves the interests of the people who own it— the corporate capitalists, the ones with money and power and “access” to politicians, the people who run things and always have. Those who are unwilling to make peace with this fact don’t make it very far in political journalism.

The right says: Look, it’s very simple. Press coverage reflects the bias of the people who produce it— and they’re liberals! Conservatives who are against abortion, suspicious of gay rights, skeptical about global warming, against the redistribution of wealth and instinctively wary of government regulation don’t make it very far in political journalism.

Look, it’s very simple, our journalists say. The press isn’t on the side of the left or the right. Of course, journalists are human. They have passions, they have interests, they have opinions. But these are irrelevant to the way they define and do their job, which is to find out what’s happening and tell the world about it. Ideologues don’t make it very far in political journalism.

In the puny camp that I’m a part of the first sentence is: This is complicated…

[…]

But if we were able to engage our political journalists in a deeper discussion we would also find that most of them are skeptical about changing society in any fundamental way. And they are big believers in the law of unintended consequences. So: liberal or conservative? My answer: it’s complicated. One thing we can definitely say: political journalists are cosmopolitans, and they will see the world through that lens. They may also stop seeing it as a lens, and that’s when it becomes an ideology.

But even if we had an x-ray machine that gave us perfect information about the beliefs of the journalists who report on politics, the ideological drift of the work they produce wouldn’t necessarily match the personal beliefs or voting patterns of the reporters and editors on the beat because there are other factors that intervene between the authors of news accounts and the accounts they author.

Take for instance the way professional journalists try to generate authority and respect among peers, or, to state it negatively, the way they flee opprobrium. Here it is important for them to demonstrate that they are not on anyone’s “team,” or cheerleading for a known position. This puts a premium on stories that embarrass, disrupt, annoy or counter the preferred narrative—the talking points, the party line—of one or both of the sides engaged in political battle. An incentive system like that tends to be an ideological scrambler, which doesn’t mean that it scrambles consistently or symmetrically across political lines. It means what I said earlier… this is complicated.

Julian Sanchez at Megan McArdle’s place:

The big obvious constraints, especially in the contemporary mediasphere, are the demands for speed and volume. A successful journalist in the modern market needs to put out a lot of copy fairly quickly and, ideally, get to the story first. (This is also why we get a lot of reporting on tactical maneuvering and short-term perceptions that ultimately don’t make a lick of difference electorally–an enterprise that seems guaranteed to inculcate cynicism.) These are matters of professional pride, but that’s partly because they’re also–as I was reminded in my former life whenever I’d try to persuade an editor to back off for a few days so I could work on a longer investigative piece–good eyeball-maximizing strategies, especially in a world where the second paper to report a story is ever less able to count on a built-in reader base.

A lot of Rosen’s ideological profile plausibly falls out of this. The journalistic sweet spot is a story that’s “disruptive” or “counterintuitive” enough to distinguish itself from the pack, while remaining sufficiently rooted in a familiar narrative that it can be turned out by rote and (crucially) digested in a two or three minute news segment without a great deal of explanation. Similarly, for all the many and obvious flaws with the much-derided “he said/she said” style of reporting typically confused with “objectivity,” it has this much going for it: It’s fast. Actually determining which of multiple competing claims is true, on the other hand, can take quite a lot of time, effort, and expertise–the last requiring a reporter to get tied to a policy beat that may cease to be hot in a few months.

Moreover, actually trying to play referee means you’re pretty much guaranteed to be wrong some proportion of the time, and to be accused of getting it wrong even when you’re right by the media machine of whichever side you’ve debunked. If the issue is even moderately complex and the relevant players are bright enough not to make easily falsifiable claims, there’s no reason to expect any kind of ultimate general vindication, since partisans and activists will always be willing and able to devote more time to the question than harried journos. Not getting it wrong in a he-said/she-said story, by contrast, mostly just requires that you transcribe accurately.

Many of the other elements of press ideology Rosen identifies ultimately serve to rationalize this approach. Take the “High Broderist” premise that the “extremes” on both sides are equivalent. It’s not just this attitude allows reporters to make a show of even-handedness, it’s that equivalence seems like a natural default, deviation from which would require (time consuming) justification. Moreover, a “he said/she said” approach requires some implicit consensus–and it has to stay implicit–about which players and positions are worth attending to, about which hes and shes get a say. Hence the “sphere of deviance.” Otherwise, again, the individual journalist is sucked into making and justifying an evaluation about which groups are credible.

Rosen pretty clearly regards most of these ideological tendencies as pernicious, and while I’m often inclined to agree, it’s also worth at least asking whether, in each case, they’re any worse than the plausible alternatives. Suppose, for instance, we agree that its both delusional for journalists to cultivate an attitude of being untouchably “above the fray” and that this attitude ends up warping coverage in undesirable ways. It might yet be the case that we’re so naturally disposed to tribalism that it can only be avoided by cultivating a self conception as a member of the Savvy Tribe. It would be depressing if this were true, of course, but it can’t be ruled out a priori. Sometimes our delusions serve useful functions.

DiA at The Economist:

What Mr Rosen describes here corresponds to a set of pressures that I think any honest journalist should acknowledge feeling. Two days ago, for example, I wrote a post in which I described two arguments developed by a pollster to field-test political messaging on climate change: “[The message on the left] is every bit as shallow, populist and misleading as the message on the right, which I think means the pollster has done an honest job of phrasing each argument in the fashion most likely to appeal to the American public.” That was an attempt to be cute, and to some extent it described an authentic sense of frustration I feel with the American body politic. But it was also a dodge, a way of temporarily neutering the fact that, obviously, I agree with the climate-change alarmist crowd, and that therefore my assessment of whether the environmentalist message was likely to be effective as well as true might have been biased. I was, exactly as Mr Rosen says, “pushing off from both sides to generate authority”.

I’d recommend you read Mr Rosen’s post in its entirety. Substantively, I have one point to raise in response. Mr Rosen lists six terms he’s developed for describing press ideology:

1. The Church of the Savvy

2. The Quest for Innocence

3. Regression to a Phony Mean

4. The View from Nowhere

5. He said, she said journalism (which Mr Rosen tries to bust up via fact checking)

And finally, one I’ll list in its entirety so I can get into that response:

6. The sphere of deviance. The power to place certain people, causes and ideas within the deviant sphere is one of the most ideological things journalists ever do.

In the sphere of deviance we find “political actors and views which journalists and the political mainstream of society reject as unworthy of being heard.” As in the sphere of consensus, neutrality isn’t the watchword here; journalists maintain order by either keeping the deviant out of the news entirely or identifying it within the news frame as unacceptable, radical, or just plain impossible… Anyone whose views lie within the sphere of deviance—as defined by journalists—will experience the press as an opponent in the struggle for recognition. If you don’t think separation of church and state is such a good idea; if you do think a single payer system is the way to go; if you dissent from the “lockstep behavior of both major American political parties when it comes to Israel” (Glenn Greenwald) chances are you will never find your views reflected in the news. It’s not that there’s a one-sided debate; there’s no debate.

The problem I see is that if you want to avoid point five, you have to allow some room for point six. A press that can’t “place certain people, causes and ideas within the deviant sphere” is one that will be unable to escape “he-said, she-said journalism”. There is, for example, simply no room in most articles to refute the belief of people who “don’t think separation of church and state is such a good idea” that the authors of the constitution intended America to be a Christian nation. That contention is simply wrong, and there’s generally no space or time to get into proving it every time it arises. For example, I’m not going to take the space or time to prove it in this post. Instead, I’m going to place people who think the United States was founded as a Christian nation inside the “sphere of deviance”. I don’t think such people are “unworthy of being heard”, exactly, but I’m not going to let them be heard in my blog post without a refutation, and I don’t have time for a refutation, so they’ll have to go elsewhere to make themselves heard. The same goes for a variety of views that have currency in contemporary American politics. Here are a few: advocacy for the gold standard; the belief that the Earth is not growing warmer; the belief that cutting taxes in America today will increase government revenue; the belief that Barack Obama was not born in the United States; denial of evolution. On these issues, I would fall among those journalists for whom, as Mr Rosen says, there is “no debate”. And in this case I will refrain from attempting to generate authority by pushing off against two sides.

Marc Ambinder:

Jay Rosen, the New York University press critic, has written a treatise on what he calls the “actual ideology of the American press.”  It is compelling and provocative, and I recommend a full read. I also think it leaves out something quite important: if the ideologies he identifies — the pathologies, actually — are the sum total of the media, what would Jay Rosen, if he were running the world, have us do? Is there a distinction between journalism and ideological argument? Is it methodological? Are there times when, given the difficulty of discovering a truth, journalists can and should adopt a disinterested or disembodied stance?  His criticism applies largely to political journalism, and so  I anticipate his answer.

Mori Dinauer at Tapped:

This Jay Rosen piece on the ideology of the American press is worth a read. “It’s complicated,” he writes, and indeed his multi-dimensional analysis — in which I cannot find anything to disagree with — does not lead to a pithy conclusion. I’ve said before that regardless of their political orientation, the press is biased toward authority, but that is a different matter than their ideological beliefs.

Jonathan Holmes at ABC The Drum:

You could have read any number of ‘he said, she said’ articles about the Resource Super Profits Tax, at any time in the past six weeks. You could have heard even more of them on ABC radio or television. Particularly if they work for media outfits that aim for ‘objective, balanced’ journalism – as most of the mainstream media claims to do, and the ABC’s Charter legally demands that it do – it’s easy for journalists and editors to feel that so long as they’ve accurately reported what one side has said on any particular day, and how the other side has countered the first side’s claims, they’ve done the job.

It’s simple, it can be done quickly and on deadline, and no-one can accuse you of bias.

But supposing that one side in a dispute – any dispute – could be, with a bit of digging, shown to be objectively wrong, and the other right? Suppose one side is making claims that can be shown, without departing from the most rigorous standards of objective journalism, to be grossly exaggerated? Suppose, for that matter, that both sides are? Isn’t it the ‘objective’ journalist’s job to tell us so?

Oooh, but now you’re getting into deep water. For starters, you’re talking about a lot more work. Secondly, you’re bound to be accused of ‘bias’ by the side that you decide is making claims that are untruthful or distorted, and by those who generally support its arguments. Thirdly, if that side happens to represent the people on whom you depend for information, and interviews, and background briefings – suppose, for example, you’re a journalist who specialises in reporting on the resources industry, and you write a piece debunking the mining industry’s claims – there could be serious consequences for your future reporting.

Much safer, much easier, to stick to ‘he said, she said’. Jay Rosen quotes a distinguished former Washington Post reporter, Paul Taylor, writing about his own tendency to avoid making a call either way: “Yes, I am seeking truth. But I’m also seeking refuge. I’m taking a pass on the toughest calls I face.”

But, Rosen points out, the web has changed the game in two important ways. First, it’s such a wonderful research tool that it’s far easier for reporters, even on a tight deadline, to make some attempt to discover whether someone’s talking nonsense or not. And second, it should mean that media organisations can offer their readers instant background, if they want it.

For example, some time in the last six weeks, every serious media organisation should have written a simple, easy-to-follow guide to the Super Profits tax: what’s proposed; how it’s supposed to work; what’s meant by terms such as ‘resource rent tax’, ‘uplift factors’, ‘discount rates’; what the main differences are between the new tax and the existing Petroleum Resources Rent Tax, and how the Government justifies them. It should neither espouse nor attack the proposal – although if that proposal contains obvious flaws, they should be highlighted.

As it happens, The Drum commissioned exactly such a piece on the Resource Super Profits Tax just a couple of weeks ago from ABC business and economics correspondent Stephen Long. I found it illuminating. (But look at the comments, and you’ll see that it’s fanciful to suppose that ‘analysis’ like that will be perceived as unbiased by everyone.)

For that matter, surely somebody could write a sort of idiot’s guide to the mining industry’s and the Government’s advertising campaigns. How do they arrive at the figures they’ve used? Are they controversial? If so, what alternative figures have been put forward? Are any of their claims unjustifiable? If so, which, and why?

If the claims change, so can the piece. If industry or Government convinces the writer that he’s wrong, the analysis can be tweaked, and so on. But the reader is being helped through the fog of dispute.

A link to these analytic pieces should be added to every article written about the dispute, so that online readers, at least, can click through whenever they want.

But usually, in the real world, that doesn’t happen. Consumers of news are largely left to fog it out for themselves. Of course, those who have the time and inclination can do so. But as the news story develops, the assumption is made by daily journalists that everyone knows what happened yesterday, and a week ago. It’s far harder than it should be to find the background analysis.

The addiction to ‘he said, she said’ journalism is not, in my view, because reporters are lazy, but because they’ve been schooled to believe (by news consumers, as well as by editors and, dare I say it, Chairmen of the Board) that the appearance of ‘balance’ is more important than the quest for truth. But maybe, as Jay Rosen suggests, it’s time for journalists, and their readers or listeners or viewers, to demand more: ‘he said, she said – and I think’.

UPDATE: Jay Rosen and Julian Sanchez at Bloggingheads

UPDATE #2: Rosen responds to Ambinder

Ambinder responds to Rosen

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