STOPPING THE CORPORATE FRAUD EPIDEMIC

For all the talk by W. in the wake of the latest scandals, realistically the only way that any significant reform will get accomplished on this issue is for the Dems to be swept into control of both chambers in November. If the Dems can keep the focus of the electorate on this issue (and not get baited into fights over foreign policy, civil liberties and culture wars) they very well can accomplish this despite the pubic's approval for W.'s handling of the war on terror. Only an electoral disaster will convince W. that he can not let the regulated choose the regulators. Only an an electoral disaster will cause the more sensible elements in the GOP to wrest their economic platform away from market fundamentalists (maybe they'll go back to supporting fiscal conservatism?) There are basically two options this fall - vote for the Dems or vote for corporate corruption and cronyism. And if you still think W., Rummy, Condi and co. are doing a great job in 2004, and you're worried that the Dems choice (John Kerry, for example) might mess things up, you can always split your vote - I promise not to tell.

VOUCHERS: QUICK TAKE ON THE DIFFERENT OPINIONS

My full response to this decision, with detailed analysis of precedent, more nuanced, careful reads of the Justices' words, and a full explanation behind my theory of the religion clauses will require me to write the Note I should have written in law school. At the other extreme, here are my first impressions of the various opinions.

(I apologize to those who have waded through multiple revisions of this post - this is the final version!)

Rehnquist (Majority): As expected, a straight-forward application of "neutrality" theory. Start with neutral funding criteria (which at the plurality held was in and of itself sufficient even in the case of direct aid in Mitchell) add indirection through the voucher system (funds go to religious institutions through "genuine choice" of parents) and Presto...Constitutional - end of story.

O'Connor (Concurrence): O'Connor was the swing vote (surprise, surprise), which means her concurrence will be the most parsed section of the opinion. On the plus side, she provides a more fleshed out defense of why public alternatives need to be considered in determining whether a program provides "true private choice." On the minus side, even as she signs on to a holding that puts the last nail in the coffin of Lemon, she claims that the decision was not "a dramatic break from the past." Is it any wonder why students of constitutional law get cynical?

Thomas (Concurrence): Thomas effectively wrote a Critical Race Theory opinion. He invoked Frederick Douglass to advance the argument that the real, concrete educational needs of African-American children in the inner city must be given precedence over abstract understandings of the Establishment Clause. Thomas gets credit for co-opting the discourse of academic left in the service of a cultural right. He gets demerits, however, for implying that he's not fully reconciled to the incorporation doctrine, and wouldn't mind it if the First Amendment's religion clauses were never applied to the States.

Stevens (Dissent): All you need to know is his first line: "Is a law that authorizes the use of public funds to pay for the indocrination of thousands of grammar school children in particular religious faiths a law respecting an establishment of religion within the meaning of the First Amendment?" I've got to believe he toyed with the idea of leaving "respectively" off of this dissent.

Souter (Dissent, joined by Stevens, Ginsburg, & Breyer): While still clinging to separationism, its a much better opinion than what he wrote in Mitchell, by honestly confronting the shift in the Court's theory, rather than vainly grasping for support for seperationism in recent precedent. While his analysis of whether the voucher program presented "true choice" was purely for the sake of argument, it produces the most salient critique in his dissent - that the Court must "define choice in a way that can function as a criterion with a practical capacity to screen something out."

Breyer (Dissent, joined by Stevens & Souter) : This is the must-read part of the case. The reason is that Breyer flags the most critical issues that will have to be addressed in the cases that follow this. Namely, what safeguards must be in place to prevent formally neutral programs from favoring one religion over another? What strings, if any, can the government attach to public funding of religious institutions without violating religious liberty? And what are the possible dangers for American civic identity of shifting primary education away from integrating public schools to parochial education? In the end, Breyer throws up his hands, holding these issues to be insoluble, and retreats behind the safety of separationism. While I disagree with his conclusion, the future success of the Court's new religion jurisprudence will turn precisely on how it addresses the concerns raised in his dissent.

SCHOOL VOUCHERS ARE CONSTITUTIONAL: THERE MAY BE HOPE OF AN INTELLIGIBLE RELIGION JURISPRUDENCE IN OUR LIFETIMES

The Supreme Court upheld the constitutionality of school vouchers today in a 5-4 decision, as I expected. The decision is the logical conclusion of the line of cases in the 1980s and 1990s that backed away from the unworkable Lemon test on issues of government funding to religious institutions. That being said, I do believe there needs to be more nuance than the formal neutrality position as expressed by the plurality position in Mitchell v. Helms, which I'm guessing is quite similar to the majority's decision in this case. I expect the most interesting part of the decision will be Justice O'Connor's concurrence, which may provide a road-map to an establishment clause jurisprudence that is no longer seperationist, but not minimalist.

One quick non-legal thought: The strongest arguments against vouchers have always been the policy ones - will vouchers improve the overall quality of education, will they spur competitive forces in public schools, will they be constructed in a way that focuses on the most needy - or will they be simply a give-away to middle-class parents who are already sending their children to private schools. With this decision, these issues will be addressed where they should be addressed - through the democratic process.

HOW 'BOUT WE CHANGE IT TO "ONE NATION (AND SOME OF CALIFORNIA)..."

Just when we least needed it, the 9th Circuit has decided to stoke the glowing embers of the pointless Culture Wars by declaring the Pledge of Allegiance unconstitutional for containing the phrase "under God". A couple of quick thoughts on the decision.

1) The decision is NOT going to hold up: First, there is very little government activity involved here, which makes it an inapt fit for the anti-coercion line of case that run from Engel (school prayer) to Lee v. Weisman (school convocations). Second, while the anti-endorsement principle clearly comes into play, its been applied half-heartedly so far. If reindeer and a candy-cane can neutralize a creche, why can't "in liberty and justice for all" neutralize the far less divisive "under God." Third, even if First Amendment doctrine was clearly in favor of the phrase being unconstitutional, the Court can always fall back on the "historical practice" exception it carved out in Marsh v. Chambers , when it held that a state could open legislative sessions with prayers from state-funded chaplains.

2) If I have to read the phrase "Judeo-Christian" one more time in coverage of this issue, I'm going to scream. Islam believes in one God. Bahaii believe in one God. And while Hindu and Buddhist theology is different that the monotheistic faiths, they can easily intepret the phrase to correspond with their faith's conception of the Divine. So lets be honest with who is put out here - atheists. And while its understandable that they would worry about a slippery slope to second-class status if the establishment clause is watered down, its not even a question that their status as full citizens is more secure today than when Ike added the phrase to the Pledge.

3) The political scientist in me is curious to see what would happen if the Supreme Court actually upheld the Ninth Circuit's ruling. Would the popular sentiment against such a decision be sufficient and sustained enough to produce a countering amendment? I don't believe that even this most counter-majoritarian of courts, however, will challenge public opinion on this issue. The question of how counter-majoritarian the court has to be to provoke an effective popular response will continue to be an academic one.

WHY THE SPEECH BUSH GAVE IS BETTER THAN THE ONE THEY WANTED TO HEAR

The verdict is in, and the liberal establishment has given Bush a clear thumbs down on the speech. Here's a sampling:

The New York Times called the speech "a plan without a map," and that the absence of immediate Israeli concessions would result in Palestinian "hopelessness"

The Washington Post in almost identical language called the plan an "uncertain road map" whose main deficiency was that
"Palestinian officials who said they needed some incentive to pursue such reform and to control terrorism didn't get the encouragement they were looking for."

In other words, Bush erred by deviating from the sacred principle of Evenhandedness. It is an article of faith for the liberal establishment that both sides were equally to blame in the collapse of the Oslo Process, and both sides need to be pressured to end the current round of violence. While this squares nicely with journalistic convention, it has the problem of being entirely removed from reality.

Josh Marshall in Talking Points Memois upset that Bush didn't 1) commit to a Palestinian state, now, and 2) linked statehood with a responsible Palestinian leadership. He calls this "almost the definition of colonialism, the antithesis of what it means to have your own state"

Marshall is upset that Bush didn't hand the Palestinians a state on a silver platter as a reward for their strategic decision to respond to Camp David with a terror offensive. Somehow, he fails to craft an argument on how this would not be seen as a vindication for that decision. Even worse, he collapses into the standard left-wing bugaboo about colonialism - that we shouldn't impose our values of democracy, tolerance and human rights onto non-Western nations. It is time for this tired canard to be discarded. A Palestinian state with liberal democratic values is both a) capable of living in peace with Israel and b) worth creating. Why on earth should anyone except Israel-haters wish to create one more bellicose police state in the West Bank?

Tapped's take is that the speech was "half-assed -- something that Karl Rove came up with to try to thread the needle between various neoconservative, evangelical, and pro-Israel lobbies." Tapped then sent its readers over to Marshall's flawed analysis.

Translation: Tapped hasn't a clue about the Middle East, but it knows that Bush panders a lot on domestic policy, and Karl Rove is the master panderer. Tapped should stick to domestic policy. First off, there is no needle to thread between neocon, evangelical and pro-Israel lobbies - these are overlapping groups. Neocons are pro-Israel because it of the common values between the two countries, and evangelicals are pro-Israel, well because they take the Bible seriously (ranging from the admirable philosemtism of those that identify Jesus with his people to the frightening millenialism of those waiting for Jesus to lead the newly Christianized Israel into the final battle). Second, there were plenty of other pressures on the Bush Admnistration - domestic (big oil) and foreign (Europe, Saudis) that wanted Bush to deliver a speech that would have made liberals happy and Palestinian terrorists jubilant.

The speech the liberals wanted - coupling Arafat with Sharon, aborting the Israeli offensive against Hamas, would have led to glowing editorial reviews, and a renewed wave of terror against Israel. Instead, Bush delivered a speech that spoke the truth, and leaves the next step to the Palestinians - to choose terror or a state.

SUICIDE BOMBINGS: MEANS TO ONLY ONE END

Winds of Change pointed me to this excellent analytical piece by Stratfor.com on how the tactic of suicide bombings plays into Palestinian long-term strategy. Here is the most central part of their analysis.

The suicide bombing campaign cannot be intended to achieve any significant short-term goal. First, it is not likely to generate a peace movement in Israel --quite the contrary. Second, it locks the United States into alignment with Israel, rather than driving a wedge between the two. Finally, it creates an extreme psychology within the Palestinian community that makes political flexibility all the more difficult. The fervor that creates suicide bombers also creates a class of martyrs whose sacrifices are difficult to negotiate away. The breadth and intensity of the suicide bombings force us to conclude that the Palestinian leadership is focusing on a long-term strategy of holding the Palestinians together in a sense of profound embattlement, transforming the dynamics of the Arab world and then striking at Israel from a position of strength. In short, the Palestinians think that time is on their side and that sacrifices for a generation or two will yield dividends later. If they wait, they will win.

Here Palestinian strategy, intentionally or unintentionally, intersects with that of al Qaeda, which also is committed to a radical transformation of the Islamic world. Its confrontation with the United States is designed to set the stage for this transformation, enabling the Islamic world to engage and defeat the enemies of Islam.

One of the critical mistakes that observers of the Israeli-Palestinian conflict make is to analyse the conflict outside of the wider context of the Middle East. Olso was only possible because of the nadir of anti-Western forces in the Arab-Islamic world after the Cold War and Gulf War. The rise of Islamism has changed that calculus - once more raising the hopes of a unified front (this time in pan-Islamic as opposed to pan-Arabic terms) capable of eliminating Western influence and Israel from the region.

Thus, the only way to peace in the Middle East is to create a truly "New Middle East." The United States can either act agressively to foster a liberal, democratic Islamic world, or it will find itself engaged in a long conflict with a militant Islamic world dreaming of recovering past glories and repaying past defeats.

BUSH TO PALESTINIANS: TERROR OR A STATE - CHOOSE ONE

In the end it was a speech worth waiting for. It delineated the correct goals of a lasting Arab-Israeli peace, and the true conditions for such a peace. For once, all of the Foggy Bottom equivocation was gone, and in a rarety of diplomatic parlance, honesty pervaded the message.

Bush on the relationship between Palestinian terror and Israeli occupation.

It is untenable for Israeli citizens to live in terror. It is untenable for Palestinians to live in squalor and occupation. And the current situation offers no prospect that life will improve. Israeli citizens will continue to be victimized by terrorists, and so Israel will continue to defend herself.

The message is clear - Palestinian terror is the cause of the Israeli re-occupation, not the other way around. The Palestinians, like all people, deserve to live without such occupation - if they are willing to live in peace with their neighbors.

Bush on the connection between a change in Palestinian leadership and a Palestinian state:

Peace requires a new and different Palestinian leadership, so that a Palestinian state can be born...And when the Palestinian people have new leaders, new institutions and new security arrangements with their neighbors, the United States of America will support the creation of a Palestinian state whose borders and certain aspects of its sovereignty will be provisional until resolved as part of a final settlement in the Middle East..... A Palestinian state will never be created by terror -- it will be built through reform. And reform must be more than cosmetic change, or veiled attempt to preserve the status quo. True reform will require entirely new political and economic institutions, based on democracy, market economics and action against terrorism.

According to the news reports Bush balanced his position conditioning Palestinian statehood upon reform by embracing the Arab position that Israel must fully withdrawal to the untenable '67 borders. Thus, according to the AP:

In his speech, Bush demanded Israel withdraw to positions it held on the West Bank two years ago and to stop building homes for Jews on the West Bank and in Gaza. Ultimately, he said, Israel should agree to pull all the way back to the lines it held before the 1967 Mideast war.

In his speech however, Bush merely reiterated the traditional U.S. position that while Israel should withdrawal from most of the West Bank, final status of the borders must take into account Israel's security interests.

This means that the Israeli occupation that began in 1967 will be ended through a settlement negotiated between the parties, based on U.N. Resolutions 242 and 338, with Israeli withdrawal to secure and recognize[d] borders.

Finally, in the most stirring language of the speech, Bush proclaimed a vision of freedom and democracy throughout the Islamic world.

I have a hope for the people of Muslim countries. Your commitments to morality, and learning, and tolerance led to great historical achievements. And those values are alive in the Islamic world today. You have a rich culture, and you share the aspirations of men and women in every culture. Prosperity and freedom and dignity are not just American hopes, or Western hopes. They are universal, human hopes. And even in the violence and turmoil of the Middle East, America believes those hopes have the power to transform lives and nations.

The hard part of course is to move from these hopeful words to a better reality. However, it is wrong to discount the importance of vision in foreign policy. For all the nuance and knowledge that Bush the Elder had, he squandered it for wont of a vision. This speech shows that at least with respect to the Israeli-Palestinian conflict, W. has the vision his father lacked, and may leave a far more positive legacy on the world stage.

BETWEEN 12/12 and 9/11

It's getting harder and harder to get a read on how the Bush Administration is actually fairing in the war on terror. On the one hand, you have a admnistration that is obsessed with secrecy and its own image. It would be perfectly within the nature of Karl Rove, Ari Fleisher and co. to focus on brushing any mistakes under the rug. There is the lingering suspicion that the Justice Department simply detained large numbers of Middle Eastern men with no connection to terror (which may have been understandable in the panic after 9/11), and has kept many of them in custody far longer than necessary to make the detention appear justifiable.

On the other hand, its not as if I can trust many of the admnistration's critics on the war on terror, either. Hard core liberal Dems remained convinced that the biggest blow to this country occurred not on 9/11, but on 12/12 the year before, with the travesty of the Supreme Court's decision in Bush v. Gore. Since Bush by all rights should not be president, everything his administration does is suspect, whether it is a response to the events of 9/11 or an attempt to push forward with his original agenda. I'm not a big fan of John Ashcroft, but I don't buy into the hysterical claims that he is a bigger threat to this country than Osama bin Laden or Saddam Hussein. And these claims make it harder for me to sort out the legitimate attacks on his policies of the past nine months. In order for this nation to be more secure and yet preserve our core liberties we need a vigiliant critique of our government's policies in the war on terror. As much as it pains me to say it, I think we need to get past 12/12 to do so.

THE MYTHICAL DEMOCRATIC PARTY AGENDA

This zinger comes from Michael Kinsley in his column on George Stephanopoulos becoming the new host of ABC's This Week.

Nothing in his past suggests that he would risk squandering this opportunity in order to advance the agenda of the Democratic Party, even if—unlike everyone else on earth—he knows what that agenda might be.

Count me among "everyone else on earth." I'd might even support that agenda, if it existed.

FOOL ME ONCE, SHAME ON YOU. FOOL ME TWENTY TIMES...

Arafat is in serious damage-control mode, trying to prevent his slippage into the state of irrelevance that Sharon has claimed for him over the past year. His latest effort is a hail-mary, stating in an interview with Ha'aretz that he now accepts the Clinton plan and that he believes he can reach an agreement with Sharon. Had Yasser held this position two years ago it may very well have led to a two-state solution (albeit a shaky one based on the lack of internal Palestinian reform). By coming out with such a statement now, after his military gambit failed to achieve Israeli concessions - he has no credibility. Arafat may have finally realized the futility of violence against Israel, but the people he purported to lead have not. Instead, he has led them into a pathological culture of martyrdom that is now the central obstacle to a lasting peace in the region.

LESSONS OF OPERATION DEFENSIVE SHIELD

What are we to make of the fact that just two months after Israel's major incursion into the West Bank it finds itself once more admist a wave of suicide bombings, and once more responded with a major incursion into Area A. Mickey Kaus is sure he knows: opponents of the Sharon policy (such as Robert Wright) were clearly right, and supporters (such as Charles Krauthammer) were prematurely triumphalist. Kaus' snarky critique however is just as wrong as Wright's analysis has always been, as just as premature as Krauthammers' punditry was last month.

The amount of Palestinian terror is a function of both the capacity (supply) of the Palestinians to commit terror and the desire (demand) of the Palestinians to do so. The Palestinian Terror Supply is roughly determined by the following factors: (1) organizational support and structure, (2) supply of explosives/weapons, (3) havens/bases of operation, (4) manpower, and (5) access to targets. The Palestinian Terror Demand is determined by (a) attitude/ideology towards Israel (b) potential costs and benefits of terror; and (c) cost/benefits of alternative approaches to terror.

Let's look then at the accomplishments of Operation Defensive Shield. First, it disrupted the terrorist organizational structure by arresting and killing militant leaders. Second, it was able to recover and destroy a vast cache of explosives and weapons. Third, while the operation was ongoing it eliminated terrorist access to West Bank cities as bases of operation and havens from Israeli attacks. Fourth, again during the operation it significantly reduced access to Israeli civilian targets. On the demand side, its unclear whether the costs of widespread destruction of PA infrastructure were seen as higher than the political gains of the PA in the diplomatic arena.

It's obvious from this analysis why the gains of the mission were only temporary. Once the IDF had pulled back - Palestinian terrorists regained access to PA territory as bases of operation and once more had access to Israeli targets through the porous West Bank-Israel border. Once they recovered sufficiently in terms of organization and supplies they were able to launch another wave of attacks. Similarly, the negative consequnces of terror for Palestinians were clearly bounded - the reoccupation was temporary, and Arafat was guarenteed protection from exile.

This analysis is widely different from that of Robert Wright, who (1) discounts any attempts to limit the supply of terror (by bizarrely positing manpower as the limiting factor) and (2) limits his demand analysis to the Palestinian attitude towards Israel. His conclusion, inevitably, is that Israel should respond to Palestinian terror with restraint and concessions - because this will somehow radically change Palestinian attitudes towards Israel and not be interpreted as validating the pro-terror policy. Krauthammer on the other hand focuses on the Palestinians capacity for terror, along with the cost/benefit analysis of the terror policy. Krauthammer's mistake in trumpeting the Sharon policy was his premature conclusion that a two week operation significantly impacted that capacity and the calculus of the Palestinian leadership.

Which brings us back to the current policy adopted by Sharon after the latest wave of bombings. Unlike the April incursion, this reoccupation is designed to be of indefinite length. This will both increase the IDF's ability to reduce terror capacity - and more importantly, change the cost-benefit analysis for the Palestinian pragmatists. If the reaction of Palestinian leaders (most notably the petition against suicide bombing signed by Sari Nusseibeh and Hanan Ashwari) is any indication, already this new policy has already had a positive impact. Only when the Palestinians have given up on getting land for nothing will they finally consent to land for peace.

HOW THE SOUTHERN BAPTISTS MISUNDERSTAND ISLAM

Well, its that time of year again - time for the annual convention of the Southern Baptists, and the annual controversy triggered by releasing their standard messages of intolerance and religious triumphalism into the general public discourse. This year's winner is a speech by the Rev. Jerry Vines, who called Islam a religion founded by "a demon-possessed pedophile" and claimed that Muslims do not worship the same G-d as Christians.

In years past, the Southern Baptists have used this platform to attack dual-covenant theology (the idea that Jews do not have to accept Jesus, but can gain salvation through observing Jewish commandments), promote conversion of Jews during the High Holidays, and other landmarks to religious pluralism. So it is no surprise to see the SBC launched a full-on assault against the mainstreaming of Islam in America.

The more serious issue is the content of the attack. Vines' source for his pedophilia claim is a well-known hadith about Muhammed's relationship with his youngest wife, Aisha that states that she was 6 when betrothed and 9 when the marriage was consummated. On its face such a passage seems crystal clear, and the claim by the notoriously unreliable CAIR that many Muslim scholars have interpreted Aisha's age to be in fact 16 and 19 seems dubious. This skepticism however, reveals an ignorance not only of the origin and role of the hadith in Islam, but of religious hermeneutics in general.

Unlike the Qu'ran, which Islam considers G-d's word, the hadith's origin is the oral tradition that passed down from the companions of Muhammed. A formal canonization of the hadith did not occur until centuries after the life of Muhammed. Both the Qu'ran and hadith have been since interpreted by Islamic jurists in their creation of a comprehensive Islamic law. Thus, one can not simply quote a passage from the hadith, out of context and be confident that they truly understand Islam's view on a certain matter. It is critical that one remembers that the hadith are an oral tradition. They can not be seperated from the world of their origin - which in many ways was shaped more by pre-Islamic Arab customs than by the values of Islam. And although this is a major debate within Islamic law, there are important strains of Islamic legal thinking that recognize the imperfection in the transmission process, and discount hadiths that are in conflict with the core principles of Islam.

This is not to say that there are not offensive passages in the core texts of Islam - simply that what is critical is how these texts are interpreted. The reason that our conflict is with Islamic fundamentalism and not Islam is that the fundamentalists refuse to see Islam as organic and rational, and hold strictly to archaic aspects of their faith that set them at war with the rest of the world. It is no surpise that Christian fundamentalists would join in articulating such a dim view of Islam. It is unacceptable for opponents of fundamentalism to not see that the same mediating and rationalizing hermeutics they use on their own faith's texts can be applied to Islamic texts. This is a powerful tool for Muslims striving to create a progressive Islam, an Islam of peace.

FUNDAMENTALISTS OF THE WORLD, UNITE - YOU HAVE NOTHING TO LOSE BUT YOUR SOULS

One of the most fascinating aspects of the recent culture wars in America has been the rise of ecumenism among the religious right. Thus, we get the rather odd scenes of fire-breathing Southern Baptist preachers cavorting with Hasidic Rabbis as they take on the "opponents of family values." It was inevitable that anti-modernist Muslims would be the next to be invited into the coalition. Whatever the problems of this odd alliance on the domestic front (which may actually do more good than harm by increasing interfaith tolerance among the cultural right), it is far more problematic on the international scene - where the Religious Right is working furiously to align American positions on the rights of homosexuals, women and children with those of the worst tyrannies of the Islamic world. The Bull Moose crafts a dead-on analogy in condeming the religious right's move.

Just as liberals weakened their case when they joined hands with the Communists, the religious right's moral standing is severely weakened by working with states that enslave women, promote extreme anti-Semitism and support terror against America and the West.

While I'm more sympathetic to the problems that motivate religious conservatives (the search for meaning and community in an atomizing, uber-materialistic modern world), their dogmatic worldview and warped alliance with the economic right drives them to counter-productive solutions (who else would blame gays for teenage pregnancies? or ignore the possibilities of flex-time as means of increasing quality time for parents and children). The revelation of cooperation with this country's enemies should be a wake-up call to the rank-and-file of thse communities that something has gone dreadfully wrong with their organizations' priorities.

This issue also gives Dems a golden opportunity to wrest the monopoly on flag-waving currently enjoyed by the GOP. There are a large number of liberal/libertarian hawks who disdain religious fundamentalism but see the Dems as soft on foreign policy. The Dems need to become the party of exporting liberal values (first and foremost gender equality) abroad. The question is whether they will be able to shed their own culture warriors' instinctive relativism to do so.

LABOR'S CRITICAL ROLE: DEVELOPING AN EXIT STRATEGY

One of the most twisted elements of the international campaign against Israel was its decrying of an occupation that didn't exist. Before Arafat's War, as part of their obligations under Oslo, Israel had withdrawn from all of the major Palestinian population centers. For the most part, what the IDF was occupying in October 1999 was the sparsely inhabited parts of the West Bank. In the twenty months of the Palestinian terror campaign, Israel has attempted every military option short of re-occupation - establishing check-points between Palestinian towns, surgical strikes against terror leaders, short incursions into towns and cities, and finally Operation Defensive Shield - a three week rolling incursion into Area A. While these activities have wrecked havoc on the Palestinian economy, none of these techniques have been effective at stemming the terror assaults.

In responding with this phased escalation, Israel made a drastic miscalculation about how the Palestinian leadership would respond - assuming that Arafat and his cronies would respond to their people's economic misery and respond by cutting off their offensive. It is now clear (as it should have been two years ago) that the only thing that mattered for the Palestinian leadership is amount of land under their control. Thus, the only the retaliatory response Israel could make that would have a true impact would be reoccupation of Area A. Finally, after exhausting the rest of their policy options, the Sharon government has adopted this strategy, directly pricing Palestinian terror with a loss of Palestinian sovreignity.

Considering the howls of protest over Israeli occupation when they weren't even occupying the Palestinian populated areas, there is no doubt that this policy will meet with storms of protests from the usual suspects - the Arab regimes, Europe and the State Department. Just as dangerous for Israel will be the attempt from their hard right to enlist the reoccupation in the cause of Greater Israel and the settlement movement, delinking it from its core counter-terror purpose. There is a critical need, therefore, for Israel to develop a clear exit strategy - one that gives encouragement to any Palestinian initiatives to abandon the terror campaign, and uses the reoccupation to redraw the map in a way that makes an eventual seperation feasible.

This task naturally falls to the Labor party. So far, Labor has wandered through its post-Barak phase rudderless, divided between unreconstructed champions of Oslo (Yossi Beillin and to some extent Peres), supporters of unilateral withdrawal (such as Haim Ramon), and those that support moderated versions of Sharon's policies (nominal party leader Ben-Eliezer and to some extent Peres). It is inevitable that at some point Labor will leave the government in an effort to develop an opposing party platform and regain power. This is not mere partisan politics - Labor and Likud's positions on the isolated settlements are unbridgeable. The temptation for Labor's would-be leaders (such as Beillin & Ramon) will be to use re-occupation as an exit issue. This however, will severely undercut Israel's ability to employ the tactic as a deterrent against Palestinian terror. Rather, what Labor needs to do now is provide a loyal opposition within the government - supporting the re-occupation, but affirming its interim status. They can do that by supporting an expedited time-table for building the security fence, and by clearly laying which settlements are to be evacuated upon the fence's completion. If Labor can develop such a policy, not only will it have a real chance to recover its status as Israel's leading party, it will be leading Israel in the right direction.

ANOTHER MASS MURDER IN JERUSALEM

The courageous freedom fighters of Hamas have struck again - this time blowing up schoolchildren and commuters on a Jerusalem bus. Israel has only one option that has a realistic chance of stemming the violence - reoccupying the West Bank until the fence gets built. I'd apologize for sounding like a broken record on this issue, except that I'm right.

SYMPATHY FOR THE PURITAN: THE OTHER SIDE OF THE CHILD ONLINE PROTECTION ACT

There may be no consensus on obscenity, but there certaintly seems to be a consensus among legal pundits that efforts to regulate porn on the internet are 1) patently unconstitutional; 2) motivated by intolerant puritans; and 3) doomed to fail anyway.

A classic example of this is Professor Jeffrey's Rosen's recent TNR article on the Supreme Court's decision to send Ashcroft v. ACLU back to a lower court for further study. In it Rosen mocks the Supreme Court's approach on obscenity law - saying that it was 30 years behind the times. Hard-core porn may have been outside the scope of decency in the 1950s, but in the year 2002 it is a thriving consumer industry.

I'll agree with Rosen that there is not a national consensus on which sexually explicit materials are appropriate for teenagers as well as adults. What I question is why that should be the critical issue on which the constitutionality of regulating porn turns. For while there is no consensus whether hard-core porn is harmful or harmless, it is ridiculous to assert that it is political. Thus, there is no reason for the dispute over what is obscene and how it should be regulated in this area to be removed from ordinary democratic discourse. In other words, this is a clear example of where constitutional doctrine has veered far from the core principles of the document. The Constitution checks the ability of democratic institutions to limit speech, because free speech is essential to keep democratic institutions accountable and democratic discourse alive. We have wandered from the logical proposition that other forms of expression have the same function to privileging anything anyone wants to claim as "self-expression."

Second, Rosen portrays the issue as what to do about 16 year olds looking for the Playboy previews (as opposed to looking at the SI Swimsuit issue on line). This is NOT the issue at the heart of COPA. Instead, the reality is that the Internet is full of 8-year olds who occassionally mispell words as they look for their favorite edutainment sites or who curiously like to type random phrases as weblinks. As anyone who has spent anytime on the web knows, the porn industry has cannibalized a ridiculous number of domain names so that misspellers, or those who confuse their .com with .org get bounced into an ever-repeating web off pop-up porn teasers. It's perfectly reasonable for parents, who do not want to have to look over their child's shoulder for hours on end, to want to be assurred that their cyberly gifted children not encounter the dark underworld of the net. (It's not as if we have adult bookstands on the next shelf over from Barnes & Noble, Jr.).

Finally, while COPA may not be the best way to achieve the aims of regulating the internet, the choices are not as stark as Rosen presents them. The real problem with requiring people to use age verification to view adult sites is not they are unduly restrictive, but that our privacy laws are so woefully behind the technological curve that people are rightly afraid of the consequences of what will be done with their verification information. Strenghening privacy laws can help in building a functioning rating system. Another idea that could at least address the problem of unwanted porn is the idea of cyber-zoning. Why can't their be domain ranges for adult sites? This would greatly ease the problems faced by filtering software, and unwanted pop-up ads that punish cyber-errors. There are sensible solutions here - the right combination of laws and technology can make the internet both free for adults and safe for children.

THAT DARNED FENCE

The much ballyhooed security fence designed to seperate Palestinians from Israel is finally under construction at the northern edge of the West Bank. The first section seems to adhere mostly to the Green Line, with slight deviations. This has led to a storm of criticism, ranging from the insightful to the laughable about how, where, and why the fence is being erected.

According to Yassir Arafat, the fence is an exercise in fascism. He appears to be upset that Israel is not being more accomodating to the suicide bombers he has been sending out his controlled territory into Israel proper. I'm trying to contort my mind to discover the twisted reasoning that could support such a contention. Forget all the nonsense about "non-political security" fence, what Israel is building is a de facto border. It is not fascist for a nation to have borders and protect them. Sure, the fence is the final nail in the coffin for the "New Middle East" of open borders and economic cooperation, but Arafat pretty much buried the idea with his own embrace of terror and indoctrination against peace.

According to Yossi Sarid, the fence is invalid, because it does not adhere strictly to the 1967 borders. One would have to agree that with political leaders such as this, Israel does not need external enemies. Its one thing for foreign diplomats, far removed from the topography of the West Bank to fetishize the Green Line, but its completely another for anyone who will have to live with the final borders. The Green Line is simply an untenable border, and an invitation to constant conflict. At times it appears that the Israeli Left is most concerned with the reception of their policies in European op-ed pieces than in actually crafting a lasting peace.

According to the settlers, the fence will inevitably lead to a border and evacuation of the settlements on the wrong side of the fence. Well, they're right - but for the most part that's a good thing.

Finally, the Jerusalem Post has the most trenchant criticism in comparing the building of the fence to the withdrawal from Lebanon.

The "wait and hurry up" syndrome is rearing its head again concerning the building of a separation fence. Like the withdrawal from Lebanon, there is a wide consensus that it should be done. But like that withdrawal, the rushed implementation could cause serious and lasting damage.

The Post has it right - the fence needs to be placed east of the Green Line, encompasing the settlement blocs necessary for a more secure border. At the same time, Israel can state its clear intention to transfer the lands east of the fence to a future Palestinian state. In effect, the current government plan, placing the fence close to the Green Line and trying to diminish its political aspects, sends precisely the wrong message. To Palestinian radicals it sends the message that violence can drive Israel to a unilateral retreat to the '67 borders without any significant Palestinian concessions. To Palestinian moderates and the wider world, it sends the message that Israel is not committed to evacuating isolated settlements necessary for a workable long-term solution. A fence east of the Green Line, with a clear political message sends the right message. Palestinian violence has a cost - the lands between the fence and the Green Line have gone off the table - but Palestinian cooperation can have a clear reward - a viable Palestinian State.

SUPPORT THE INTERNATIONAL ZIONIST CONSPIRACY - BUY A LATTE

It appears that Starbucks has become Enemy Number One in a new Arab effort to boycott American goods, because of its chief executive's "pro-Zionist sentiments." Surprisingly, the Arab activists made no mention of the connection between Starbucks and the nefarious Dr. Evil. Other goods to be shunned by haters of America and Jews: Nestle, Coca-Cola, Johnson & Johnson and Burger King. So, go ahead - get an Iced Moccachino - and feel proud about it. Or for you coffee-haters out there, try my favorite, the Venti Soy Iced Chai !!!

LESSONS FROM THE OSLO CATASTROPHE

Last week, Charles Krauthammer gave a brilliant speech, condemning the secular messianism that led to the Oslo agreement. From Krauthammer's perspective, Oslo was doomed from the start - and in retrospect the selection of Arafat as peace partner seems to have been fatal. But, as Saul Singer points out in this incisive column, whatever chance Oslo had of succeeding was doomed by the Peace Camp's messianic attitude towards its implementation.

If the Labor Party not just Oslo's critics had cried foul when Yasser Arafat started smuggling terrorists and weaponry in his car, when he failed to curb incitement, and when he failed to lift a finger against Hamas, the situation could be different. It was Oslo's defenders who howled that Binyamin Netanyahu was killing the agreement by demanding "reciprocity" also known as implementation. Those who really doomed Oslo were not its opponents but its champions. Like those who let Germany violate the Versailles Treaty out of laziness or misplaced magnanimity, Oslo's defenders invited war, not peace.

This is a lesson we will need for the future, whenever we end up attempting further peace agreements. The underlying fallacy that beguiled those behind Oslo was that peace is produced by fulfilling perceived Arab grievances. Oslo's proponents believed fervently that the Arab desire to destroy Israel either was no longer meaningful or could be slaked. The peace processors are fond of saying, in response to Arab intransigence, that peace is made with enemies, not with friends. But in the case of other sworn enemies, such as France and Germany, peace was made possible by the utter defeat and transformation of the aggressive party. The insanity of Oslo was not so much that it attempted to make peace without such a transformation, but that there was not any vigilance to make sure such a transformation was taking place.

The best hope for peace with the Muslim world is a transformation of its most radical states, Iran and Iraq, into pro-Western democracies. Now that the United States has realized that such a transformation may be required for its security, it is hardly unthinkable. Israel need not wait until then to pursue peace, but cannot repeat the mistake of assuming that Israeli concessions can take the place of making Arab regimes accountable to their own people.

While most Israelis have been cured of this mistake, the view that Israeli concessions are the critical element to an Arab-Israeli peace maintains a stubborn hold over the mindset of Europeans, the State Department and the liberal elite. Until they change their position, they will continue to be obstruct rather than aid the achievement of a real peace in the Middle East.

A MANDATE, NOT A STATE

The latest nonsense passing for diplomatic initiative in the Middle East is Powell's call for a "provisional" Palestinian state. The plan would be to create a Palestinan state on what the Palestinians currently have jurisdiction over, and later work out the messy issues of borders and refugees. Not surprisingly, the plan has received a warm backing from Shimon Peres.

The only positive thing I can say for the plan is that it 1) provides the Arabs with a fig leaf so they can pretend to support the U.S. invasion of Iraq; and 2) it provides Israel with political cover to begin withdrawing the most isolated settlements (especially in Gaza).

The cons are obvious. First, there has not been real reform of the Palestinian Authority - meaning that the "state" will do just as poor a job of delivering social welfare as the dysfunctional PA. Second, the plan is completely unrealistic on the issue of security. Sending George Tenet over for a couple of days is not going to transform Arafat's mulitple terrorist bands into a reliable anti-terrorist police force. The third is that even a "provisional" statehood could be seen as a validation of the 2nd Intifada. There is no reason whatsoever to think that the Palestinians would not turn back to violence as a negotiating tool over the critical issues.

The idea that the Palestinians are ready and able to rule themselves and act as a responsible member of the international community at the current time is simply delusional. What's need is not a provisional Palestinian state, but a provisional mandate in which the Palestinian territories are policed and administered by reliable parties (Jordan is still the best bet here) while the necessary infrastructure for a functional Palestinian state can be constructed. The Palestinians quite simply are not ready to accept this, despite the long-term benefits that await them. Its still unclear what short of an Israeli reoccupation will convince of the need to make the necesary compromises for a lasting peace.

LESSONS FROM THE NBA FINALS

Sorry, everybody, there simply weren't many to be found. The series was as anti-climactic as expected.
1) Shaq is pretty much unstoppable, but when the refs refuse to call him for an offensive foul he's completely unstoppable. Unfortunately for the Nets, none of their centers had sufficient credibility to garner any calls against the Diesel.
2) The Kings are not given enough credit for their defense. They held the Lakers to 42% from the field. The Nets were torched for 51% shooting from the field.
3) The Nets, despite being overmatched by the Lakers, were not a fluke. Look to see more from Kenyon Martin and Richard Jefferson next year.
4) The following are the #2 picks for the years before and after Van Horn: Antonio McDyess, Marcus Camby, Mike Bibby and Steve Francis. Keith doesn't quite fit with this group, does he?

WELL MAYBE THE DEMS HAVE A BACKBONE AFTER ALL

The Dems cave-in on the Bush tax-giveaway has got to be one of the lowest points in recent party history. The repeal of the estate tax was completely irresponsible from a fiscal perspective, completely immoral from a fairness perspective, and completely unjustified from an economic perspective. If the Dems can't make the argument that such funds are better spent on updating federal law enforcement technology, supporting education reform, or simply preserving needed funds for the future entitlement crunch than they should simply fold up their tents and go the way of the Whigs.

Yesterday, the Dems showed that somewhere in that confused mess of a party lies a backbone by killing off the permanent repeal of the estate tax. This will undoubtably make us a safer country in the coming decade.

Here's a breakdown of how the swing senators voted:

Dems That Found Their Spine: Breaux(D-LA), Feinstein(D-CA), Kohl(D-WI), Torricelli(D-NJ), Johnson (D-SD), Carnahan (D-MO)

Republican Patriots:McCain (R-AZ), Chafee (R-RI)

Psuedo-Dems: Baucus (D-MT), Landrieu (D-LA), Cleland (D-GA), Bayh (D-IN), Lincoln (D-AR), Miller (D-GA), Nelson (D-FL), Nelson (D-NE), Wyden (D-OR)

HOW EUROPE FUELS THE DEMAND FOR PALESTINIAN TERROR

In the long run, the demand for Palestinian terror can only be eliminated through a change in Palestinian ideology. This will require a
thorough restructuring of Palestinian society, ending hate-education, competent, representative governance and economic development. In the short term, therefore, the only workable approach is to reduce the supply of Palestinian terror, through disruption of supplies, removal of leaders, etc..

There is however, one other factor in the demand for Palestinian terror - its efficacy in advancing the Palestinian cause - militarily and diplomatically. Well, militarily, its been a failure. The Israelis have not responded to Arafat's War by running for the hills. Diplomatically is another story. The fact is that the suicide bombing campaign and Israel's response, while causing the Palestinians to lose groud in the U.S., has actually led to major diplomatic gains in Europe. Why, should a rational Palestinian who is indifferent to the tactics of terror as opposed to negotiation cease supporting a terror offensive when it has led to a Norweigan union boycott of Israeli products, a Danish boycott of Israeli oranges, and a Beligian boycott of Israeli music?

You would think that if the Europeans really oppose terror, they might want to change the messages they are currently sending the Palestinians. Say, by doubling their consumption of Jaffa oranges after each attack. Unfortunately, it doesn't appear that the Europeans oppose terror against Jews.

BACK TO BACK TO (NOT THE 20th HIJACKER)'S COMPUTER

OK, Hauser caught me being sloppy on my last post on FISA. The best guess of the FBI is that Moussaoui was NOT "the 20th Hijacker", but was instead an al Qaeda operative on another mission. I'll be honest with you, I hate spelling the guy's name, and I got lazy.

I would love to respond to the rest of his email (which as you can guess was none too positive about the Stuart Taylor piece) but to be honest there are a number of critical facts we both don't know. For example, is there any legal support for the contention that this case was not a slam dunk? How often had the FISC turned down warrant requests prior to 9/11? What's the whole story behind the wiretapping affidavit scandal? Without knowing more, I can't really add anything productive to the issue of FISA reform.

ISLAMIC ANTI-SEMITISM THRIVING IN OHIO

One of the tell-tale signs of an anti-Semetic opposition to Israel, as opposed to one based on policy disagreements, is the dehumanization of Israelis and Jews. A friend of mine has recently been working for an Israeli professor, who has had the "honor" of being on the listserve of The Muslim Students Association of Ohio State University. She recently emailed me a sampling of the emails she's been sifting through.

Here's a post from "Drive the Zionists Into the Sea" (by the way, in case you want to join, the organization has a clublisting on Yahoo), on the Versailles banquet hall collapse of May 2001.

[T]he would-be "master race" of "Eretz Israel" has taken a HIT directly from the Lord of the Worlds, Allah (S.W.T.). If all the zionists were consumed by fire or an earthquake or a loathsome disease, every person who believes in justice should DANCE ON THE ROOFTOPS - something that suddenly became a LOT EASIER today in Jerusalem ...

Celebrate joyously and thankfully with gratitude to Allah (S.W.T.) the destruction of the wedding party and make du'a that it is only the beginning.

Remember, they weren't even supposed to *BE* there. They are living in someone else's homeland without their permission, and actually daring to celebrate as if they had some right to be there.

Some people wonder why a just God does not swallow up such evil as that of the zionist celebration in the midst of a Palestinian homeland. Well, HE JUST DID! Take heed, zionazis!

And here a snippet from a "Free Arab Voice" submission on why Muslims should support Holocaust Denial.

Revisionist historians do NOT deny that Jews died in the Second World War. They say, however, that hundreds of thousands of Jews died along with the forty five million who perished in that war. The revisionist historians used hard sciences like physics and chemistry in proving that the so-called gas chambers were not used to exterminate Jews systematically. Crematoria, on the other hand, were used to dispose of the corpses of people from different nationalities (after their deaths) to circumvent plagues. Of course, a crematorium is something completely different from a gas chamber. Scientific evidence indicates that the latter never existed. They proved, for example, that Anne Frank died of Typhus, like many others who supposedly died in a systematic campaign by the Nazis. The revisionist historians then dispute: a) the number of Jews who died in WWII, b) how they died, and c) the alleged uniqueness of the death of the Jews in human history. The revisionist historians dispute scientifically the received version of the ?Holocaust?, not that Jews died in WWII.

Wait...before you think that our valient Jew-haters accept what the Holocaust Deniers say uncritically, check out this beauty of a paragraph.

Historical revisionism has obtained some useful results, but it remains lacking in many points. For example, upon reading the literature of many revisionist historians, I noticed that they do not give enough attention to the role and interest of Western governments in forcibly maintaining the myths of the ?Holocaust?. The dilemma can be paraphrased like this: if we agree that the death of the Jews in WWII is neither unique nor unparalleled, and if we agree the numbers were highly over exaggerated and that gas chambers were not used to exterminate Jews but to fight diseases emanating from corpses, we are left with a big question which
is WHY DID THE JEWS COME TO PALESTINE THEN?

There are a number of explanations as to how these Hillul Hashems (yes Muslims can desecrate G-d's name as well, and these "believers" are doing precisely that) have become acceptable dialogue for Muslims at American Univeristies. It's possible, despite all the claims to contrary, Islamic anti-Semitism is just a virulent in America as it is abroad. On the other hand, and this is what I think is really happening, Muslim student organizations are currently dominated by foreign students and radical activists and the majority of American Muslims, who are NOT anti-Semitic don't feel any need to speak out against such rhetoric being passed in their name.

Well, its time for the silent majority to stop being silent. Its time for courageous American Muslims to stand for the Islam that they believe at the expense of communal solidarity. Because if they don't, they risk becoming a silent minority.

NOW YOU'VE CROSSED THE LINE INTO BAD TASTE

Left-wing anti-Israel Yahoos in London disrupted a Noa (Achinoam Nini) concert, storming the stage to keep Britain safe from equisitely sung Middle-Eastern-inflected jazz-pop (from a committed dove no less). This is not just a crime against Jews - it's a crime against music. The only proper punishment for these wack-jobs is to stick them in Hyde Park for a week straight with a boombox blaring non-stop boyband pap.

BACK TO THE 20th HIJACKER'S COMPUTER

My first thoughts after reflecting upon the story of the National FBI's failure to request a warrant to search Moussaoui's computer was that (1) it demonstrated that the National FBI had a b-cratic, risk-adverse culture; (2) some misplaced incentives had to have gotten into the system for risk-adversion to lead to quashing requests for warrants; and (3) the law might have to be changed to avoid an overprotection of civil liberties.

This led Hauser to fire away with the following argument: (1) Rowley thought she had probable cause for an intelligence warrant; (2) we all agree she's an honest agent; (3) therefore it's clear that the problem was solely one of FBI incompetence, not legal stringency. Thus, since "everyone agreed that the current laws standards had been met" in this case, it doesn't support a reevaluation of the law at all.

It was a strong argument, and it swayed me towards a reevaluation of my support for Ashcroft's reforms. However, in this National Journal piece, Stuart Taylor raises all the nagging questions left unanswered by the incident. Were the FBI agents who denied the warrant request radically incompetent, or reacting rationally to the real hurdles needed to get a foreign intelligence warrant, and the real consequences of failure?

Take the Moussaoui case. The main reason his computer was not searched was the stringency of the Foreign Intelligence Surveillance Act of 1978. It imposed, and still imposes, so substantial a burden of proof to obtain a warrant for a search or wiretap that all the clues the FBI had before September 11 may well have fallen short.

Moussaoui had been arrested in mid-August 2001 for overstaying his visa, after his odd behavior at a Minnesota flight school raised suspicions of possible terrorist intent. He had paid at least $6,800 in cash for lessons on how to fly Boeing 747 jetliners despite meager flying experience and had been unusually curious about whether doors could be opened during a flight. French intelligence had said he was a fundamentalist with extremist political beliefs who had attended a radical mosque in London, had been to Pakistan and perhaps Afghanistan, and had recruited young men to fight in Chechnya....

The most relevant portion of FISA authorizes a search (or a wiretap) of a suspected foreign terrorist only if there is "probable cause" to believe that he or she is an "agent of a foreign power," defined to include a foreign national who is "a member" of "a group engaged in international terrorism or activities in preparation therefor." Evidence of terrorist intent alone is not enough; "membership" in some particular international terrorist "group" must be shown.

The now-famous Rowley argued passionately in her 13-page, May 21 letter to FBI Director Robert S. Mueller III that the Moussaoui evidence had "certainly established" all this. Officials at FBI headquarters disagree. And they, unlike Rowley, have the perspective that comes from regular dealings with the secret court that handles applications for FISA warrants. (Rowley also accuses headquarters officials of being unhelpful and obstructionist. Perhaps they were. But that doesn't make her right on the legal issue.) Some FISA experts outside government say that probable cause was lacking. Another, Washington lawyer Lawrence Robbins, says that if the above-listed evidence was all the FBI had, "it's not a slam dunk for either side."

To submit a warrant application, the attorney general would have had to certify personally that the FBI had probable cause. The conventional wisdom that the FBI's refusal to ask the attorney general to do that reflects a dysfunctional, risk-averse culture should lead us to wonder how the culture got that way.

Among the reasons: The FBI had recently (and unfairly) been savaged for supposed racial profiling in its Wen Ho Lee investigation, including its unsuccessful efforts to persuade the Justice Department to seek a FISA warrant. In addition, a well-regarded FBI supervisor (Michael Resnick) had seen his career blighted in the fall of 2000 when the FISA court had barred him from submitting any more warrant applications and had read the riot act to then-Attorney General Janet Reno about perceived improprieties in Resnick's past submissions. The details are murky. But whatever Resnick did was apparently motivated only by a desire to thwart terrorism. Had you been his successor at FBI headquarters, how eager would you have been to go forward less than a year later with a legally shaky warrant application? And to risk getting trashed in the media and Congress as a racial profiler?

The bottom line is that if you think that Moussaoui's computer should have been searched before September 11 -- and want to be sure that the next Moussaoui's computer is searched -- fixing the FBI won't do the trick. We will also need to fix the law.

For hard-core civil libertarians the idea that the FBI would take the requirements of probable cause stringently, or be cautious to avoid media criticism for overreaching in a perceived area of racial profiling is hard to swallow. But, it may very well turn out to be the case - law enforcement is not permitted to abuse the law in this country with impunity. I'm going to back to my original instincts on this issue - that some legal reform is required to make sure a case like Moussaoui's computer is a slam-dunk. While this doesn't justify sweeping reforms on other matters, it may make sense to replace the "agent of a foreign power" language of FISA with something that more appropriate in a era where the primary threats are from loose, trans-national networks rather than foreign nations.

EVERYTHING I NEED TO KNOW ABOUT FOREIGN POLICY I DIDN'T LEARN IN COLLEGE

I'll be upfront - my categorization of foreign policy - dividing its primarily between Wilsonian idealists and anti-Wilsonians (most important among them being the Realists) differs greatly from what I learned from soon-to-be Assistant National Security Advisor Jospeh Nye in his popular introductory course on international relations. For Nye, the essential debate among foreign policy theorists was the relevance of the nation-state. On the one hand, those who believed that the prime actors in international relations were nation-states, and that their prime motivation was to promote their national interest were termed "Realists". On the other side were those who argued that mulitnational, transnational and subnational actors had emerged as more relevant than nation-states, and thus foreign policy thinkers should instead rely on transnational mechanisms of promoting global stability. These were termed the Global Interdepence school. The take home message from Nye in each lecture was "the answer probably lies somewhere in the middle." In other words, the "Realists" downplayed the impact of globalization and the decline of the nation-state, while the Global Interpendence camp overplayed these factors.

The debate over American foreign policy was for the past decade framed in these terms. The Globalists advocated American involvement in multilateral ventures - pursuing global stability through an expansion of international political and economic institutions. The "Realists" on the other hand, fought a rear-guard action against these initiatives, arguing instead for a more unilateralist American approach. In U.S. politics, Clinton and the Dems leaned more towards the Globalists, and the Republican Congress leaned towards the "Realists". In fact, both sides were Realists in the sense that they agreed that American foreign policy goals should be limited, nonideological, and privilege global stability. Their disagreement boiled down to a debate over means - with the Globalist Realists having more confidence in multilateral strategies and international institutions, and the Nation-State Realists having more confidence in unilateral strategies.

What the foreign policy establishment's debate failed to offer was a positive vision of international affairs. Were the levels of tryranny and misery in the world a given fact or responsive to a more ambitious agenda? What were the trade-offs in centering American foreign policy on short-term stability and diplomatic consensus as opposed to long-term political freedom and economic development? These questions hovered at the periphery of American foreign policy - and the foreign policy establishment would prefer it that they remained there. However, one of the critical lessons of 9/11 is that we cannot leave foreign policy to the Realist establishment. We desperately need an international analysis that takes into account the ideological conflicts that exist off the Realist road-map. There is a role for the foreign policy establishment, especially when it comes to analyzing the efficacy of various means (Nye is quite accurate in his descriptive view of the world - we are in a transitory phase where effective foreign policy must rely both on unilateral and multilateral initiatives). However, we can no longer continue to privilege the means of diplomacy over their ends.

DEFINING THE ENEMY IN THE WAR ON TERROR

Nine months after the "War on Terror" began, we are still in the midst of a fierce debate as to its content. Is it a war against the tactic of terrorism, or the ideology of Islamism (advocating the establishment of a polity based on Islamic fundamentalism). Recently, Lou Dobbs' re-started the debate by dissenting from the media party line and identifying our enemies as Islamists.

As Matthew Yglesias' correctly points out, this is not just a matter of semantics or political correctness, but an issue that determines the scope of the war. No one takes seriously the idea that we intend to eradicate the tactic of terrorism - that would be a warped form of neo-Kellogg-Briandism. Instead, this is a debate over the breadth of the current war. Iis our enemy solely Al Qaeda and similar global Islamist organizations enaged in terrorism, or the wider world of Islamism that bred them - with its roots in Iranian and Saudi theocracy and its allies in the Middle East and South Asia.

This divide has led to odd splits between the standard designations of left/right. Yglesias, responding to InstaPundit's quip that Bush was now officially to the left of TAP on the war, rightly points out the odd assortment of liberals (TAP), libertarians (Sullivan, InstaPundit), and neocons that support a broad definition, and the leftists, realists, and theocons who support a narrow definition.

The war has created a whole new alignment on foreign policy, divided along lines I'll roughly classify Wilsonian and anti-Wilsonian.

The Wilsonians see the current battle as one more struggle in the battle between liberal democracy and tyranny, and that victory will be achieved not merely by the defeat of al Qaeda, but with the defeat of Islamism and the expansion American values of liberty and democracy into the Islamic World. The Wilsonian unite on two key principles: (1) the superiority of American values and democracy to those of our enemies; and (2) the exportability and universality of these values. Thus, we have neolibs, neocons and libertarians, who while disagreeing on the fine-tuning needed in America's balance of rights agree that flaws and all, our system of liberties is vastly superior to that the rest of the world enjoys.

The anti-Wilsonians, on the other hand, have qualms about one or both the Wilsonian propositions. The core of the anti-Wilsonians are the Realists, who doubt the desirability and efficacy of exporting American democracy. Far more important for the Realists is the neutralization of threats to American interests. Thus, there is a tactical advantage to not waging war against Islamism. First, it allows us the flexibility in our relations with states such as Saudi Arabia and Pakistan who have cut deals with their own Islamists to maintain power. From the perspective of Wilsonians, the Saudis and the Pakistani military regime are hostile elements to be removed in order to bring liberty and democracy to Arabia and Pakistan. For the Realists, such regimes can be tolerated to the extent they cooperate and/or support American economic interests (read: oil). The Realists are joined by a strand of the Theocons that have embraced ecumenism in their ongoing culture war with cultural left. These theocons are sympathetic to much of the Islamist agenda - its desire to resist the egalitarian, libertarian forces of sinful, secular, Western culture. Politically-active fundamentalism isn't bad - just radical, violent, anti-American politcal fundamentalism. The last thing they want the United States to be doing is going off on a crusade for the right of women to wear a miniskirt in peace. Finally, those cultural liberals who angstfully support the war have questions over the superiority of American values. For them, tolerance is better than intolerance, but the notion of imposing tolerance on the intolerant makes them squeamish. As a result, its better to limit the scope of the conflict.

There remains outside of these two groups the small anti-war minority, which for the most part is the hard-core Left, those that disdain American consumerism and power to such a degree that they believe the expansion of American influence in the world is a bad thing. It is highly doubtful that these people will ever form a majority outside of Berkely and Union Square.

The standard conclusion is that the Wilsonians are right on principle, but the Realists should be trusted in practiced. This is an argument of false symmetry. Our current mess is a direct result of the failure of Realist policy. Alliances with "lesser evil" corrupt regimes has neither promoted stability nor improved American security. Realism only works when other actors are themselves acting as rational power-maximizers. It utterly fails to account for ideology and human individuality. This is not a war on terror - but a war on theocratic tyranny. The choice between liberating the Islamic world from Islamism and preserving America's safety is not merely false, but wholly misleading. There is no other way to a safe America but through expanding freedom into the Islamic world.

DEMS & FOREIGN POLICY: STILL IN DENIAL

Continuing down the road of partisan denial, TAPped advocates Dems look to Clinton as a model for their foreign policy.

But the highly underrated foreign policy that the Clinton Administration had constructed -- somewhat by accident -- by the end of Clinton's second term is the proper basis for a credible Democratic foreign policy: Unafraid to export democratic values; careful but not timid about the use of force abroad; sensible about military spending; pro-nation-building in the best post-WWII sense; and willing to work through international institutions where feasible.

Its not that TAPped is advocating bad foreign policy principles - simply that it takes a severely selective memory of the Clinton Administration to claim that such policies were ever consistently pursued. Heres the gap between the idealized Clinton foreign policy of TAP and the actual results.

1) Exporting Democatic Values. To where, exactly? Not to China, where trade policy trumped all, certaintly not to the Middle East, where we turned a blind eye to the internal affairs of our "allies" and pushed forwards a peace process creating a Palestinian dictatorship. Not to South Asia either, where we shrugged our shoulders at the collapse of Pakistani democracy. The Clinton Adminstration's was far more concerned about exporting American products than American values.

2) Use of Military Force. Kosovo was handled well - in fact it's a good model. Otherwise, the Clintonians blinked at critical moments when military force was required - Bosnia, Iraq, and the famously lobbed cruise missile into Afghanistan.

3) Nation-Building. Clinton talked the talk, but he sure didn't walk the walk. The fact is that we didn't nation-build in the "best post-WWII sense" at all during the Clinton years. I hate to go to the Oslo well again, but its exhibit A for the Clinton team's support of "process" and photo-ops over substantive political development.

4) International Institutions. It's good that the Clinton Admnistration worked through international institutions where feasible. This was most apparent in its greatest foreign policy success - effective management of the global economy. Unfortunately, the Clintonians also tried to work through international institutions where it was infeasible. Quite simply, the professional diplomats who dominate international institutions are risk-adverse and status quo oriented. This means that they will underpriortize democratization, and shy away from the use of military force. Failure to recognize when these problems require the U.S. to circumvent these institutions and take decisive, unilateral U.S. action remains the Dems most patent weakness on foreign affairs

In no certain terms should the Dems give Bush a blank check on foreign policy. But they'd be much better served looking to Joe Lieberman rather than Bill Clinton for an appropriate opposing vision.

SHUFFLING THE FEDERAL DECK

The proposed Department of Homeland Security fills a pressing need. As of right now, if you wanted to convene a meeting on border security, you would have to bring in representatives from the Transportation (Coast Guard,Transportation Security Admnistration), Justice (INS), Treasury (Customs) and Agriculture (Animal and Plant Health Inspection Service). Simply scheduling such a meeting is a logisitical nightmare, let alone establishing a sustained, coordinated policy. This is a major improvement over the joke that has been the Office of Homeland Security. However, there are two pressing questions that remained to be answered.

Intelligence Sharing: The new proposed department has a ambitious agenda for intelligence analysis - it is designed to synthesize the various shards of information gained by the various intelligence agencies, and match them to a deep understanding of vulnerabilities in national infrastructure to be able to ascertain potential terror threats. The department, however, has no authority over the intelligence-gathering agencies. Rather, they will be "customers" of the CIA, FBI and NSA. Thus, as it stands right now, the proposed plan does nothing to address the maligncy of intelligence hoarding.

Enforcement: Similarly, the Department will have to rely on other agencies for enforcement purposes. These agencies will not always see eye-to-eye with Homeland Security's assessments. What if for example, the FBI drags its feet on investigating a Homeland Security lead? As it stands right now, there's nothing that Homeland Security can do about it.

Until these two issues get addressed, the new Department will be at best a partial solution.

OPERATION POINTLESS RETALIATION

I'm trying to imagine the thinking that led to the retaliatory strike against Arafat's HQ in response to the Megiddo massacre. Something along the lines of : (1) Its going to upset the Americans if we actually kick Arafat out this time; (2) We really don't want to go all the way back in, because we just did that; (3) but we have to do something. I know - let's send a message to Arafat on who's boss by blowing up some of his compound's buildings.

Ma Pitom? Its been pretty well documented that blowing up PA buildings does not do much to prevent terror attacks. All this latest exercise does is fuel the insipid "it's all a petty fight between Sharon & Arafat" school of brain-dead Mid-East journalism. If Sharon wants to send Arafat an anti-valentine, send out Ra'anan Gissim (who after all scares small children). When your ready to actually make the country safer - then send in the IDF.

DEPARTMENT OF HOMELAND SECURITY

For those of you who thought that this past week's media-enhanced furor over pre 9/11 intelligence lapses was without merit, its time to reevaulate. The rising furor has motivated the Bush Admnistration to do what it should have over six months ago - create a true Department of Homeland Security, with Cabinet-level authority and accountability.

The key unanswered question - will the new agency have the authority to do the critical task that has not been done yet, what Josh Marshall calls the "trench warfare of the DC beauracracy." Here are some questions to ask President Bush after he delivers his prime-time address tonight. Will the new Director be able to appoint and fire the head of the INS or its successor? What steps can the Director take to punish CIA and FBI agents who hoard information? Will the Director have the final word on what information MUST be shared between the State Department, FBI, CIA, INS and FAA? Will the Director have the final word on when and how visas are issued? Without clear answers to these questions, Bush will just be expanding the b-cracy, not streamlining it. Creating such a position will either be the biggest step forward in the domestic war against terror, or simply the largest diversion from its failure.

THAT'S WHY THE COLUMN IS CALLED TUESDAY MORNING QUARTERBACK

Gregg Easterbrook uses his TMQ column (picked up by ESPN from Slate for a number one draft pick and a columnist to be named later) to complain that offensive play in the NBA has hit a new low in this year's playoffs. My advice to him is to get out an old tape of the Rockets-Knicks Finals - then watch a typical quarter of the Nets or Kings from this year. Yes, at times the Kings and Nets lapse into the standard NBA stand-around and hope that somebody saves us mode (which explains the periods where they simply could not score on the Lakers or Celtics), but for sustained stretches they provided some of the best team offense in years - whether it was Kidd leading a perfect break with Martin and Kittles on the wings, or Webber and Divac demonstrating how to pick apart a defense with pin-point passes from the post. OTP thinks Easterbrook should apply his constant refrain against environmental doomsayers to the NBA - pro basketball is improving, and the league (thanks to the rule changes) deserves much of the credit.

NBA FINALS REVIEW AND "FINALS" PREVIEW

The UnCrowned Kings: This time, the better team did not win the series. Sacramento outplayed the Lakers, only to fall prey to a lucky bounce, questionable officiating, and their own poor free-throw shooting. They did all this with an extremely limited Peja, who contributed quite little throughout the series. As for the meteoric rise of Mike Bibby, well its not the Kurt Warner story - he was consdiered the best prospect of 1998 draft (going No.2 only because the eternal dream of finding of a legit center) and had led his college team to a national title. Was his play spectacular - yes, surprising - no. Which brings us to the critical question of how long the Kings window for contending is. With Webber in his prime, and Peja, Bibby and Turkoglu still on their way up, they have the makings of a top-tier team for majority of the decade. However, only with a healthy Vlade Divac, who turns 35 next season, are they a championship-caliber team. That gives them one-two years max to win it as currently constructed.

Celtic Pride: Basketball is all about match-ups, and the same Celtic squad that ran and shot rings around the Sixers and Pistons was soundly outplayed by a fast, deep Nets squad. New Jersey used a zone to shut down Pierce and Walker and dared the rest of the C's to beat them. They couldn't come close.

The Cinderella Nets: They play basketball the way it was meant to be played; they run the fastbreak in textbook fashion, and so many players contribute in so many different ways. My heart is with them all the way. My head says - they're at best the league's fourth best team.

Those Darn Lakers: Dynasties aren't loveable. Especially not this one, where you take the league's two best players, stick them on a team coached by the guy that one six title's with the last dynasty, and it just doesn't seem fair. Still, let's give them their props - this years' group has to have the thinnest bench in the history of NBA champions (Samaki Walker and Devean George are not exactly Michael Cooper and Mychal Thompson). In addition, Shaq and Kobe played the whole Kings series nicked up, but shrugged off pain and food poisoning to deliver game after game. The key to the Laker's higher gear in the postseason - Robert Horry. Even since he got his rings with the Rockets, he sleepwalks through the regular season, then reminds us of why he's now racked up four rings so far (which leads one to ask whether or not Horry should even get payed until the playoffs). Oh, I suppose I should predict the results of the "finals." Lakers in 5

OPERATION DEFENSIVE SHIELD, THE SEQUEL

In light of yet another bloody Palestinian sucide attack, the clock is ticking down to Operation Defensive Shield, the sequel. This time, however, there is evidence that Israel is planning to stay long enough to provide for more than a ephemeral decline in terror.

Avi Dichter, the head of the Shin Bet, Israel's Security Agency, has been lobbying for the last week for Israel to move deeper into the Palestinians areas and remain there until a buffer zone to include a fence and other physical and technological obstacles is set up along the Green Line to make terrorist incursions more difficult. Sharon and Ben-Eliezer have favored pinpointed incursions based on intelligence information. But Dichter's opinion gained some ground yesterday among ministers. Education Minister Limor Livnat told reporters that "there is a need to be present in Area A in a more significant manner, as was the case during operation Defensive Shield."

Meanwhile, disconnected as ever from actual reality, diplomatic activity buzzes about. Muburak pushes for imminent Palestinian Statehood (is this before or after Arafat's faux-reforms), the Europeans are shuttling around, excited by the prospect of a conference, and the U.S. has sent CIA Director George Tenet to the region to discuss security reform with Arafat. Well, I guess this gives him a good excuse to miss the Congressional hearings on why the CIA fouled-up royally before 9/11. Memo to W. - you may want to have your CIA director concentrating a bit more, on...I don't know...stopping the next planned Al Qaeda attack against the U.S.

Welcome Ladies and Gentlemen to the theater of Middle East Diplomacy - please turnoff all cell-phones, beepers and logical facilities. We hope you enjoy the show and remember our motto "both sides are equally to blame."

THE RIGHT KIND OF PROFILING

The New York Times reports that the Bush Administration is finally acting to plug some of the leaks in the sieve that is our immigration system.

The Justice Department will propose new regulations this week requiring tens of thousands of Muslim and Middle Eastern visa holders to register with the government and be fingerprinted, administration officials said today.

The initiative, the subject of intense debate within the administration, is designed for "individuals from countries who pose the highest risk to our security," including most visa holders from Saudi Arabia, Pakistan and many other Muslim nations, officials said. More than 100,000 foreigners, including students, workers, researchers and tourists, all foreigners from designated countries who do not hold green cards, would probably be covered by the plan, an official said.

This will lead to howls of protests from three groups: immigration advocates, civil libertarians and minority rights activists. None of these protests justify watering down or junking this needed reform.

The immigration lawyers have the weakest case. Quite simply, they oppose any policy to actually enforce our immigration laws. There has been widespread abuse of student and tourist visas. As 9/11 showed, the costs of ignoring this abuse has grown dramatically. The fact that the concept that visa-holders should obey the terms of the visa or face the consequences has become a matter of controversy demonstrates the insanity of our current discourse on immigration.

The civil libertarians have a point with emotional resonance, but little rational sway. Yes, it just doesn't "feel" right for the American government to be systematically fingerprinting, registering and tracing people. It does have the smell of a police state. However, the civil libertarians once more miss the central point - these people are not Americans. They do not have the presumptive right to be in this country whenever they want, for however long they want. It is not xenophobia for the United States to trust American citizens more than foreigners - its common sense.

Finally, the most salient argument comes from Arab & Muslim community activists. These regulations are clearly imposing a burden on Arabs and other Muslims that is not being imposed on European, East Asian or Latin American visitors. This is profiling, and it does have a cost. However, lets be totally clear - this is not ethnic profiling, but national profiling which is quite different. These regulations do not apply to Arab & Muslim Americans, nor do they apply to Arabs & Muslims on the path to American citizenship. More than anything else, these regulations reflect which nations 1) are sources of anti-American militancy, and 2) are taking insufficient steps to combat such militancy. This policy sends a clear message to the host countries - the freedom of your citizens when visiting America is dependent on your efforts to combat anti-American terror.

The 9/11 hijackers were not Mexicans, or Chinese, or Indians, or Haitians, or Senagalese or any other group of would-be immigrants that flout our immigration laws to join us. They came from a select group of nations, with a specific ideology and a far more sinister reason for evading our immigration laws - to kill us. This threat calls for an altogether different, smarter and tougher response.

LOSING OUR MIND, RISKING OUR SOUL: CRAFTING AN ANTI-JEWISH RESPONSE TO TERROR

I came upon this piece in Shma (by way of Matthew Yglesias' blog) that demonstrates that a certain segment of the American Jewish Community has lost its mind in response to the Palestinian terror offensive. Renowned civil rights lawyer Nathan Lewin proposes the following as a response to suicide terror attacks:

What if Israel and the United States announced that henceforth the perpetrators of all suicide attacks would be treated as if they had brought their parents and brothers and sisters with them to the site of the explosion? Suicide killers should know that they will take the lives of not only themselves and the many people they don't know (but nonetheless hate) in the crowd that surrounds them when they squeeze the button that detonates their bomb, but also the lives of their parents, brothers, and sisters. The nation whose civilians are killed or maimed should, by "targeted assassinations" or other means, be free promptly to execute the immediate relatives of the suicide bombers. This consequence would, I believe, deter most suicide killers - many of whom now anticipate that not only will they be rewarded in a world-to-come, but that their immediate families will be honored and granted lavish benefits on this earth.

The frightening aspect of this column is that Lewin is not some wild-eyed fanatic, but a learned, observant Jew. He is fully aware of the Jewish religion's attitude towards capital punishment, he knows quite well of the ethical obligations that the Torah places upon the Jewish people, and yet he advocates such barbarism (coming pretty close to labeling the Palestinians as Amalek).

My first thought is that he's lost his mind. Yes, the terror bomings are sickening, evil, and frightening, but they are not the second Holocaust - the Arabs are no closer to the eradication of the Jewish State than they were before they began this latest slaughter of innocents. Second, in his panicked state, he overlooks the wide gulf between the pinprick and partial measures Israel has taken so far and the potential legitimate military responses it can take. The far more sensible radical reponse is reoccupation and complete dismantling of the Palestinian Authority. The Palestinian leadership has decided to use terror as a negotiating technique - as a result it needs to be punished and eradicated, not the members of the Palestinian civilian population.

My second thought is that we continue to allow such ideas to kick around in mainstream Jewish discourse, we risk losing our soul. I am in no way affirming the nonsense of the uber-pure or self-hating Jewish Left - who cringe at the idea that Jews have a right to self-defense. Nor do I pander to the "enlightened" anti-Semites who hammer at Israel with impossibly high double-standards. At its covenental core, Jewish ethical behavior is essential for its own sake. Israel, as the Jewish State, is bound up in the commitments of the Jewish people. And all the blather of the Israel haters to the contrary, Israeli self-defense has met these commitments.

The Middle East has for its history been a blood-soaked region, where a code of vengeance prevailed. One of the greatest gifts that Judaism gave to a world was a blueprint on how to move pass a culture of vengeance-seeking to create a culture of justice-seeking. If Jews cease to seek justice and instead seek vengeance, they will cease to be Jews. The Jewish body may remain, with Jewish trappings, muttering Jewish ritual, but at its core the Jewish soul will have perished.

ATTACK OF THE ENVIROSKEPTICS: ZERO-SUM NONSENSE

Andrew Sullivan agrees
with me that the coverage of the "Bush U-Turn" on Global Warming is much ado about nothing. The difference is that he's quite
sanguine about the fact.

It seems to me that the Bush administration has long held the sensible skeptical position (which does not preclude taking human impact on global warming seriously). The difference between them and Al Gore is that they don't take this as a certainty or buy the notion you have to throw the economy into reverse to prevent it.

Ah yes, the grim options of the enviroskeptic - we can either a) do nothing to reduce emmissions or b) "throw the economy into reverse." That's zero-sum nonsense. While its true that at some future point we may have to decide between economic growth and emissions reduction, we are far from that place now. It is quite possible for the United States to dramatically reduce the critical ratio of emmissions/per GDP, which would allow for reduced emmissions and increased productivity. The reason is the U.S.'s woeful energy efficiency, which lags far behind the rest of the industrialized world. The solution is painfully obvious, but economically painless - raise energy taxes, and drop other taxes(something else regressive, like payroll) a corresponding amount. The wonders of the free market will take care of the rest - punishing those who continue to waste energy, and rewarding those who make the neccessary improvements in energy efficiency (and even more so those who develop new techniques and products). Contrary to the lies of the energy lobby, we can take signficant steps
now to reduce our emmissions without cutting into our economic growth. The benefits of national security from our reduced energy consumption alone justify such policies. The fact that they can also help slow down the Great Climate Experiment we are currently performing makes it a no-brainer.


A quick look at the stats shows that there is plenty of room for emission cuts and our current standard of living:

Country	Emmissions(tons CO2)/GDP	Energy Efficiency (BTU/GDP)
United States	0.8	10,918
Canada	0.8	18,547
France	0.3	5,904
Germany	0.4	5,317
Japan	0.3	4,075
United Kingdom	0.5	7,632