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Link to original content: https://web.archive.org/web/20120711111348/http://www.salon.com/writer/glenn_greenwald/
Glenn Greenwald - Salon.com
The Wayback Machine - https://web.archive.org/web/20120711123756/http://www.salon.com/writer/glenn_greenwald/

Glenn Greenwald

Bravery and drone pilots

The Pentagon considers awarding war medals to those who operate America's death-delivering video games

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Bravery and drone pilots (Credit: Reuters)

The effort to depict drone warfare as some sort of courageous and noble act is intensifying:

The Pentagon is considering awarding a Distinguished Warfare Medal to drone pilots who work on military bases often far removed from the battlefield. . . .

[Army Institute of Heraldry chief Charles] Mugno said most combat decorations require “boots on the ground” in a combat zone, but he noted that “emerging technologies” such as drones and cyber combat missions are now handled by troops far removed from combat.

The Pentagon has not formally endorsed the medal, but Mugno’s institute has completed six alternate designs for commission approval. . . .

The proposed medal would rank between the Distinguished Flying Cross and the Soldier’s Medal for exceptional conduct outside a combat zone.

So medals would be awarded for sitting safely ensconced in a bunker on U.S. soil and launching bombs with a video joystick at human beings thousands of miles away. Justifying drone warfare requires pretending that the act entails some sort of bravery, so the U.S. military is increasingly taking steps to create the facade of warrior courage for drone pilots:

The Air Force has been working to bridge the divide between these two groups of fliers. First off, drone operators are called pilots, and they wear the same green flight suits as fighter pilots, even though they never get in a plane. Their operating stations look like dashboards in a cockpit.

And drone pilots themselves are propagating boasts of their own bravery more and more:

Luther (Trey) Turner III, a retired colonel who flew combat missions during the gulf war before he switched to flying Predators in 2003, said that he doesn’t view his combat experience flying drones as “valorous.” “My understanding of the term is that you are faced with danger. And, when I am sitting in a ground-control station thousands of miles away from the battlefield, that’s just not the case.” But, he said, “I firmly believe it takes bravery to fly a U.A.V.” — unmanned aerial vehicle — “particularly when you’re called upon to take someone’s life. In some cases, you are watching it play out live and in color.” As more than one pilot at Holloman told me, a bit defensively, “We’re not just playing video games here.”

Whatever one thinks of the justifiability of drone attacks, it’s one of the least “brave” or courageous modes of warfare ever invented. It’s one thing to call it just, but to pretend it’s “brave” is Orwellian in the extreme. Indeed, the whole point of it is to allow large numbers of human beings to be killed without the slightest physical risk to those doing the killing. Killing while sheltering yourself from all risk is the definitional opposite of bravery.

This is why the rapid proliferation of drones, beyond their own ethical and legal quandaries, makes violence and aggression so much easier (and cheaper) to perpetrate and therefore so much more likely. In the New York Times today, Thomas Ricks, echoing Gen. Stanely McChrystal, calls for the re-instatement of real conscription because subjecting all of the nation to the risks of combat is the only way to finally restrain America’s posture of Endless War (“having a draft might, as General McChrystal said, make Americans think more carefully before going to war”); conversely, cost-free, risk-free drone warfare does the opposite. If the mere act of taking steps that will result in the death of others makes one “brave,” consider all the killers  who now merit that term: dictators who order protesters executed, tyrants who send others off to war, prison guards who activate electric chairs.

As for the claim that drone “pilots” are not engaged in the extinguishing of human life via video games, the military’s own term for its drone kills — “bug splat,” which happens to be the name of a children’s video game — and other evidence negates that. From Michael Hastings in Rolling Stone:

At first, many pilots resisted the advance of drones, viewing them as nothing but a robotic replacement for highly trained fighter jocks. . . . Now, given the high profile and future prospects of drones, pilots are lining up to operate them, volunteering for an intensive, one-year training course that includes simulated missions. “There is more enthusiasm for the job,” says Lt. Gen. David Deptula, a fighter pilot who ran the Air Force’s surveillance drone program until 2010. “Many pilots are excited about operating these things.”

For a new generation of young guns, the experience of piloting a drone is not unlike the video games they grew up on. Unlike traditional pilots, who physically fly their payloads to a target, drone operators kill at the touch of a button, without ever leaving their base – a remove that only serves to further desensitize the taking of human life. (The military slang for a man killed by a drone strike is “bug splat,” since viewing the body through a grainy-green video image gives the sense of an insect being crushed.)

As drone pilot Lt. Col. Matt Martin recounts in his book Predator, operating a drone is “almost like playing the computer game Civilization – something straight out of “a sci-fi novel.” After one mission, in which he navigated a drone to target a technical college being occupied by insurgents in Iraq, Martin felt “electrified” and “adrenalized,” exulting that “we had shot the technical college full of holes, destroying large portions of it and killing only God knew how many people.“ Only later did the reality of what he had done sink in. “I had yet to realize the horror,” Martin recalls.

Human rights lawyer Jennifer Robinson recently recounted numerous cases of horrifying civilian deaths involving Pakistani teenagers whose lives were ended by drones, and she observed that “this PlayStation warfare is only risk-free for operators of these remote-controlled killers.” She added that the use of the term “bug splat” for drone victims “is deliberately employed as a psychological tactic to dehumanise targets so operatives overcome their inhibition to kill; and so the public remains apathetic and unmoved to act,” and that “the phrase has far more sinister origins and historical use: In dehumanising their Pakistani targets, the US resorts to Nazi semantics. Their targets are not just computer game-like targets, but pesky or harmful bugs that must be killed.”

I don’t doubt that some drone attackers experience some psychological stress from knowing that they are eradicating human beings with their joysticks and red buttons (though if it’s only “bugs” who are being splattered, why would the stress be particularly burdensome?). But that stress is nothing compared to the terror routinely imposed on the populations in numerous Muslim countries who are being targeted with these attacks. And whatever else is true, drone warfare is already so exceedingly cheap and easy that the temptation to use it regularly is virtually irresistible. Collectively venerating it as an act of “bravery” (of all things), deserving of war medals, is only likely to shield it even further from critical scrutiny and challenge.

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Harold Ford, Jr.: smirking sociopath

Harold Ford Jr., sleazy corporatist and nepotist, offers up a particularly grotesque defense of U.S. aggression

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Harold Ford, Jr.: smirking sociopathHarold Ford Jr. (Credit: Reuters/Jessica Rinaldi)

(updated below)

Harold Ford, Jr. is the walking, breathing embodiment of virtually everything rotted and corrupt about the American political class. He entered Congress at the age of 26 only by virtue of nepotistic benefits: while in law school, he ran for the seat long held by his father of the same name (he then promptly failed the test for admission to the Tennessee bar). In Congress, he voted for de-regulation of Wall Street (which helped precipitate the 2008 financial crisis); to authorize the Iraq War (and then harshly criticized Democrats who opposed it and refused to admit its error even as late as 2007); in favor of a Constitutional amendment to ban same-sex marriages (The Advocate branded him “anti-gay”); and was one of the few Democrats to support the credit-card-industry-demanded bankruptcy “reform” bill that made it harder for impoverished consumers to discharge consumer debt.

After Tennessee voters drove him from Congress by rejecting his 2006 Senate bid, Ford immediately cashed in on his servitude to Wall Street and peddled his D.C. influence by becoming Vice Chairman and Senior Policy Adviser of Merrill Lynch. During Ford’s tenure, “Merrill Lynch nearly collapsed, was bailed out by US taxpayers, and went through a troubled merger with Bank of America,” yet he nonetheless received $2 million a year in guaranteed salary plus what were almost certainly substantial annual bonuses. He left what had become Bank of America Merrill to become a Senior Managing Director at Morgan Stanley, at which time he bought a $3 million co-op in Manhattan. Upon leaving Congress, Ford also cashed in by becoming the last Chairman of the corporatist Democratic Leadership Council (“last” because, typifying his career, the DLC ceased to exist under his leadership). He cashed in further by becoming a Fox News contributor, until he left for MSNBC.

Reflecting the interests he typically serves so eagerly, Ford recently attacked Democratic criticisms of Mitt Romney’s career at Bain Capital on the ground that “private equity is a good thing in many, many instances.” So that’s Harold Ford, Jr.: opportunistic, craven, sleazy nepotistic corporatist who has made a career out of converting his unearned political influence and loyalty to the banking industry into large wads of cash.

This morning, Ford, as he often is, was on Morning Joe (independently significant is that fact that one of the most prolific NBC/MSNBC political commentators — a Democrat — is also a senior Wall Street executive). The show devoted a six-minute segment to Esquire‘s Tom Junod, who — as I noted earlier today — has just published a worthwhile and heartfelt article entitled “The Lethal Presidency of Barack Obama,” which examines in depth the multiple ways the President has seized the power to kill; in one section, Junod reports on the U.S. killing of 16-year-old Abdulrahman Awlaki in Yemen, and Esquire has published that section separately under this headline: “Obama’s Administration Killed a 16-Year-Old American and Didn’t Say Anything About It. This Is Justice?” In the Morning Joe segment, Junod repeatedly documented the numerous innocent Muslims — including children — that are continuously killed by Obama’s attacks, such as the 16-year-old Denver-born son of the Islamic preacher, a mere two weeks after his father was killed.

You just have to watch the reaction of Ford, neocon Dan Senor, and Mike Barnacle to appreciate the soulless rot that leads people so cavalierly to defend and dismiss the continuous killing of innocent Muslims by the U.S. But it’s Ford’s smirking, self-satisfied, effete ignorance — from a warmonger whose delicately manicured hands have never been and will never be near any of the carnage he reflexively defends — that is particularly nauseating. Like most mindless defenders of U.S. violence, Ford just repeatedly utters the word “Terrorist” over and over like a hypnotic mantra.

Even after Junod describes the heinous death of the indisputably innocent American teeanger, Ford just smirks and pronounces that it’s better to Kill The Terrorists than to capture them. There’s nothing unique about Harold Ford, Jr. — as I said, he’s just the personification of the standard Beltway sicknesses, and the vacant “arguments” he makes to justify drones (“THE TERRORISTS!”) are the typical ones offered up — but there’s something about the way Harold Ford, Jr. speaks here, and who he is, that really vividly conveys what motivates this mindset:

 

UPDATE: The commenter ThomasPaine adeptly summarizes the Morning Joe discussion this way:

So here’s the discussion in a nutshell:

Junod: Our government killed a 16 year old boy and it won’t even say why.

Ford: Yeah, killing terrorists is cheaper than capturing them.

Senor: No, we need to tortur– interrogate them first.

Junod: But we’re talking about a 16 year old boy who wasn’t a terrorist.

Ford: Like I said, kill them.

Senor: Hey, war is messy.

That’s depressingly accurate. Meanwhile, several commenters have asked about the photograph of Ford at the top of this column: it comes from an infamous incident when Ford was running for the Senate in Tennessee in 2006 and deliberately posed, wearing a camouflage hat, in front of a Confederate flag, sparking serious (understandable) fury in a number of precincts. Here is a local Nashville columnist, A.C. Kleinheider, writing about this event, under the headline “The political nihilism of Harold Ford Jr.,” and here are two representative African-American commentators — here and here (Baratunde Thurston at JackandJill Politics) – discussing Ford’s conduct.

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Rules of American justice

An American banker is shocked to be held accountable in Britain

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Rules of American justice (Credit: AP/Tim Hales)

Gretchen Morgenson, the New York Times business reporter, yesterday wrote about aggressive action taken by British financial authorities against top Barclays executives in connection with illegal manipulation of LIBOR interest rates, including the bank’s Chairman, Marcus Agius, and its CEO, Robert E. Diamond Jr., both of whom were forced out of their jobs. In doing so, Morgenson bluntly summarizes the general, governing rules of American justice for financial elites:

One of the most revealing exchanges in the Barclays documents came when a bank official tried to describe why Barclays’s improper postings were not as problematic as those of other banks. “We’re clean but we’re dirty-clean, rather than clean-clean,” an executive said in a phone conversation. Talk about defining deviancy down.

“Dirty clean” versus “clean clean” pretty much sums up Wall Street’s view of cheating. If everybody does it, nobody should be held accountable if caught. Alas, many United States regulators and prosecutors seem to have bought into this argument. . . .

MR. DIAMOND seemed shocked to be pushed out. An American by birth, he probably thought he’d be subject to American rules of engagement when confronted with evidence of wrongdoing at his bank. You know how it works on this side of the Atlantic: faced with a scandal, most chief executives jettison low-level employees, maybe give up a bonus or two — and then ride out the storm. Regulators, if they act, just extract fines from the shareholders.

These, of course, are exactly the same rules that apply to America’s political elites as well. It’s why none of the perpetrators of America’s worldwide torture regime or its systematic warrantless eavesdropping on Americans or the deliberate destruction of incriminating evidence has faced an iota of legal accountability. It’s why the 2008 Congress passed a law that had no purpose other than to retroactively shield the nation’s telecom giants from all liability for their role in the illegal spying. It’s why a bipartisan cast of prominent political officials feels free to openly receive money from and to offer material support to a designated Terror group (MEK) without the slightest fear of punishment, even though ordinary, powerless Muslim Americans have been severely punished for giving far less support to designated Terror groups. The single most remarkable (and revealing) fact of the Obama presidency may very well be the lack of a single prosecution of Wall Street executives for the massive fraud that precipitated the 2008 financial crisis.

As long as we maintain the impunity Morgenson describes, no rational person should expect anything other than pervasive elite corruption and lawbreaking. If you remove the fear of criminal punishment for the nation’s political and financial elites — as we have done — what possible constraint on their behavior does anyone think will remain? As Morgenson says, the Barclays CEO seemed shocked that he was being subjected to any form of accountability in Britain because, as an American, he’s accustomed to knowing there will be none for those in his class; in other words, he engaged in this behavior so cavalierly because he was incentivized to do so by the knowledge that he would face no consequences.

The next time an American political official is tempted to torture people or spy on Americans in violation of the law or destroy court-ordered evidence of wrongdoing — or the next time Wall Street executives are tempted to commit institutional fraud for personal enrichment — what incentives does anyone think will exist for them to refrain? During the debate over whether the Obama administration should criminally prosecute Bush officials for War on Terror crimes, American media figures, voicing the consensus of the political and media class, insisted that it was more important to ensure that such crimes did not happen in the future than it was to punish past transgressions. That was the ultimate expression of vapid illogic: if the signal is sent that the politically powerful will not suffer criminal punishment for these crimes, then, by definition, it’s impossible to ensure that the crimes will not be committed again in the future. The opposite is achieved: one will ensure that they are repeated because the incentive has now been created to do so.

This principle — that shielding elites from punishment for their crimes ensures future rampant criminality — is as basic as it gets to the rule of law. As Alexander Hamilton put it in Federalist 15:

It is essential to the idea of a law, that it be attended with a sanction; or, in other words, a penalty or punishment for disobedience. If there be no penalty annexed to disobedience, the resolutions or commands which pretend to be laws will, in fact, amount to nothing more than advice or recommendation. 

In addition to the British action against Barclays, a Spanish court recently announced what appears to be a serious criminal investigation of the head of that country’s largest mortgage bank (also a former IMF Chairman) for mortgage fraud and price-fixing. As one of the leaders of Spain’s version of the Occupy movement (the May 15 movement), filmmaker Stéphane Gruesotold Democracy Now‘s Amy Goodman last week:

Well, you know, what happens is that, finally, finally it happens that, maybe, eventually, one of his kind maybe is going to pay. Because, you know, we citizens, we have this impression that, you know, no one of these big guys have any problem, never. They do what they want. They steal. They lie. And never happens anything. Well, now, today, maybe it’s starting to happen, something. So I’m very, very happy.

This kind of accountability is virtually inconceivable in the U.S. Many people love to hail President Obama for ending torture and CIA black sites; aside from the reasons that’s untrue in its own right, the reality is the opposite: by so aggressively shielding the torturers from all forms of legal accountability (criminal, civil and international), the incentive has been created to do it again. The same is true of illegal spying, and systemic financial fraud, and all of the other elite crimes over the last decade that wreaked such destruction. That a New York Times reporter can so bluntly set forth the rules of American justice for elites in this manner with so little notice or objection is an indicator of how normalized this has all become.

* * * * *

As always with any discussion of elite immunity, it’s crucial to note that what makes this development such a particularly warped travesty is that the very same elites who enjoy this immunity have created the world’s largest, and the Western world’s most oppressive and merciless, penal state for ordinary citizens. Because we have removed the fear of punishment for elites which the rule of law was designed to impose, something else needs to replace that fear as a constraint on elite behavior; the only viable candidate that I can see is the sort of mass citizen disruptions that have been seen in many Western cities and for which the Occupy movement provided a preliminary template. Fear of sparking that type of citizen unrest — through limitless elite corruption — can be a meaningful constraint on its continuation.

On a different note, Mehdi Hasan, the former New Statesman columnist now at Huffington Post UK, has an excellent Op-Ed today on the pervasive, intense Islamaphobic hatred which most Muslims routinely encounter.

Related to that, Esquire‘s Tom Junod has a worthwhile (albeit rather flawed) article entitled “The Lethal Presidency of Barack Obama” which examines in depth the multiple ways the President has seized the power to kill; in one section, he reports on the U.S. killing of 16-year-old Abdulrahman Awlaki in Yemen, and Esquire has published that section separately under this headline: “Obama’s Administration Killed a 16-Year-Old American and Didn’t Say Anything About It. This Is Justice?” Why does Junod have to be so gauche as to examine such unpleasantries in an Election Year? He must want Romney to win.

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Various matters

Peter Bergen's drone propaganda; State Department admission on human rights; unpopularity of NATO's Libya war

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(1) Peter Bergen of the New America Foundation think tank and CNN has become one of the most vocal cheerleaders for President Obama’s Terrorism policies, and has also been the recipient of highly lucrative, exclusive access to classified information granted by Obama’s administration. On July 4, Bergen, along with NAF’s Jennifer Rowland, published a CNN column lauding Obama’s escalated drone attacks, claiming they have “become more precise and discriminating” (even while acknowledging that the “strikes may also be fueling terrorism“). The top of the column features a colorful chart, assembled by the NAF, depicting civilians as a tiny portion of the deaths caused by those strikes; it actually claims that for 2012, 153 “militants” (whatever that means) have been killed by drones in Pakistan versus zero civilians.

In The Atlantic, Conor Friedersdorf does an excellent job of documenting how unreliable and propagandistic are Bergen’s claims. Bergen, the think tank “Terrorism expert,” knows nothing about the identity of the victims other than what media reports, based on anonymous U.S. and Pakistani “officials,” claim. But as I’ve repeatedly documented, and as Friedersdorf notes, these claims are unproven and inherently unreliable for numerous reasons, including the warped Obama re-definition of “militant” to include “all military-age males in a strike zone as combatants . . . . unless there is explicit intelligence posthumously proving them innocent.” There is abundant evidence that the number of civilian deaths are vastly higher than official claims, but Bergen’s pretty chart acknowledges none of that. That’s because most D.C. think tanks — and especially “experts” enriched by their access provided by government sources — exist to sanctify and propagate official claims. That’s their function.

 

(2) Associated Press’ Matt Lee is one of those rare reporters who frequently challenges U.S. foreign policy hypocrisy, both in general and, even more rarely, as it pertains to the nation’s support for Israel. Here is a remarkably revealing exchange he had on Tuesday with State Department spokesperson Victoria Nuland:

VICTORIA NULAND, spokesperson for State Department:

Listen, before we leave Syria, I just want to take the opportunity, if you didn’t see it, to draw your attention to the Human Rights Watch report that was released today that identifies some 27 detention centers that Human Rights Watch says Syrian Government intelligence agencies have been using since the Assad crackdown on pro-democracy protestors. The report found that tens of thousands of Syrians are in detention by regime security and intelligence agencies and that the regime is carrying out inexplicable, horrific acts of torture, including – well, I’m not going to repeat them here, but I’ll leave it to you to read the report. And in many cases, the Human Rights Watch asserts that even children have been subject to torture by the Assad regime.

MATT LEE: Do you see that report as credible and solid, and you’re putting – you’re endorsing it? I mean, you’re saying –

MS. NULAND: We have no reason to believe that it is not credible. It’s based on eyewitness accounts, and they’re reporting from a broad cross-section of human rights figures inside Syria.

LEE: So the next time Human Rights Watch comes out with a report that’s critical of Israel for its treatment of the Palestinians, I’ll assume that you’re going to be saying the same thing, correct; that you think that the report is credible, it’s based on eyewitness accounts?

MS. NULAND: As –

LEE: And you’re not going to say that it’s politically motivated and should be dismissed?

MS. NULAND: Matt, as you have made clear again and again in this room, we are not always consistent.

Goyal.

LEE: So, in other words, anything that Human Rights Watch says that is critical of someone you don’t like, that’s okay; but once they criticize someone that you do like, then it’s not worth the paper it’s printed on?

MS. NULAND: Matt, I’m not going to get into colloquy on this one.

Goyal.

RAGHUBIR GOYAL (India Globe): India.

MS. NULAND: Yeah.

Purported human rights concerns from the U.S. Government are virtually always weapons used to undermine governments which the U.S. dislikes for completely unrelated reasons (usually because those nation’s governments defy U.S. decrees), and instantly disappear whenever it comes to governments which comply with those decrees (“I really consider President and Mrs. Mubarak to be friends of my family” – Secretary of State Hillary Clinton, March 2, 2009; “the President and the [Saudi] King reaffirmed the strong partnership between the United States and Saudi Arabia” — White House Readout of the President’s Call with King Abdullah of Saudi Arabia, October 12, 2011; “US resumes arms sales to Bahrain. Activists feel abandoned” — Christian Science Monitor, May 14, 2012; “Israeli settlements: US vetoes UNSC resolution” — BBC, February 19, 2011). Kudos to Nuland for acknowledging this, even if it was forced and sarcastic.

 

(3) Although most Americans prefer not to acknowledge the fact documented in the prior item, most people in the Muslim world are all too familiar with it. Many advocates of the NATO intervention in Libya claimed that it would improve perceptions of the U.S. in that region, but a recent Gallup poll unsurprisingly demonstrates the opposite:

There are well-intentioned advocates of these interventions who genuinely believe that they will result in humanitarian outcomes by removing horrible tyrants — that was true for the war in Iraq as well as for Libya — but such advocates refuse to recognize that this is not the American objective and therefore not the likely outcome. By contrast, that disparity — between stated goals and actual goals — is well-recognized among those who have seen the results of American intervention up close.

 

(4) The LGBT magazine, The Advocate, endorsed President Obama this week, the first time it has endorsed a presidential candidate in many years, and this was the nausea-inducing cover trumpeting its endorsement:

I’ve praised Obama’s record on same-sex equality as enthusiastically as anyone: it’s one area where his record has been impressive. I understand, and have expressed, the emotional importance for LGBT Americans of his marriage announcement as well as its political significance. But beyond the gross amorality of being narcissistically fixated on one self-interested issue to the exclusion of all others, hailing Barack Obama as a holy mixture of Abraham Lincoln and God is nothing short of demented. That this deeply unhealthy leader-reverence gushes forward all due to a non-binding, base-pleasing Election-Year statement makes it even more embarrassing.

 

(5) A large Canadian bank, TD Bank, has begun closing the accounts of its Iranian-Canadian customers out of fear that use of their accounts to send money to relatives in Iran would violate sanctions imposed on that country. As usual, these sanctions regimes end up imposing severe harm on ordinary citizens while doing little to achieve their stated objective.

 

(6) Last week, I posted the video of the speech I gave on Friday night on Challenging the American Surveillance State, delivered at the 2012 Socialism Conference in Chicago. For those interested, AlterNet has now published a transcript of that speech.

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Kagan’s Medicaid vote

The Obama Court appointee once again sides with the right-wing faction in an important ruling

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(updated below)

During the debate over Elena Kagan’s Supreme Court nomination, those of us who opposed her selection argued that there was a substantial risk that she would join with the Court’s four right-wing Justices more often than her predecessor, John Paul Stevens, did, and more often than other potential nominees (such as Diane Wood) would, and thus have the effect of actually moving the Court to the right (using “left” and “right” here in its conventional sense). The argument was not that she would be a Scalia clone; it was that her deliberate lack of a public record on judicial philosophy, combined with the isolated glimpses into her worldview that were available, made this an unnecessarily risky choice to replace Stevens, who had become the leader of the “liberal” bloc.

Particularly since she has so often recused herself on key cases, the record is still too incomplete to permit either side of this debate to claim vindication. There have, however, been several cases in which Kagan has joined with the Court’s Scalia/Thomas/Alito/Roberts bloc in important areas, including her support for the narrowing of Miranda rights (the stalwart protection of which has long been a crown jewel of liberal jurisprudence) as well as her denial of review of disturbing death penalty sentences and an oppressive free speech ruling. In each of those cases, President Obama’s other Court appointee, Sonia Sotomayor (whose nomination I enthusiastically defended), as well as Ruth Bader Ginsburg, were on the opposite side from Kagan.

The Supreme Court’s health care ruling two weeks ago provides perhaps the most potent example yet justifying these concerns about Kagan. Although it was John Roberts’ ideological apostasy that has received the most attention, Kagan joined with the Court’s five right-wing Justices (as well as Stephen Breyer) to strike down one of the most important provisions of the bill — its Medicaid expansion program — on the ground that it was unconstitutionally coercive of the states (by threatening states with a loss of benefits for non-participation); on that issue, it was Sotomayor and Ginsburg in dissent. Politico‘s Josh Gerstein examines how little attention Kagan’s vote has received from liberals:

In the landmark health care decision last Thursday, a Supreme Court justice broke with that justice’s political roots, snubbed the justice’s ideological fellow travelers on the court and confounded critics who had predicted the opposite outcome.

I refer, of course, to Justice Elena Kagan.

Kagan voted for portions of Chief Justice John Roberts’s controlling opinion declaring unconstitutional a major provision in President Barack Obama’s health care law, namely the Medicaid expansion.

While Roberts has been denounced by conservatives as an ideological heretic and turncoat for siding with liberals to uphold the individual mandate in the law, Kagan’s conclusion that the law’s Medicaid expansion was unconstitutionally coercive toward the states has triggered no similar wave of condemnation of her by liberals.

The absence of public outrage toward Kagan is particularly notable since she wasn’t parting company just with her liberal ideological counterparts, but with the president who appointed her to the court and with the administration she served as Solicitor General immediately prior to taking the bench.

“Who knew that the Solicitor General thought the Medicaid expansion was unconstitutional?” said Kevin Outterson, a law professor at Boston University who filed an amicus brief urging the court to preserve the Medicaid provisions as written.

Asked how likely he thought it was prior to Thursday’s ruling that Kagan would wind up taking such a stance, Outterson said: “Never in my wildest nightmares.”

Gerstein includes a number of caveats, including the speculative theory that Kagan’s vote on this provision might have been a strategic concession to induce Roberts to uphold the law in general. That, like anything else, is possible, though there’s no evidence that this happened notwithstanding the avalanche of leaks that have come out of the Court regarding Roberts’ vote. It was the Medicaid expansion provision that was the primary argument against liberal opposition to the law — it’s reckless to oppose a law that will give health insurance to 30 million people who cannot now afford it – and this part of the Court’s ruling, joined by Kagan, could jeopardize at least some of that expanded coverage.

This is more than an isolated instance. In Kagan’s short time on the Court, it’s beginning to look like a trend. She’s issued some impressive (dissenting) opinions and has, more often than not, been a reliable vote with the “liberal” wing of the Court (neither of which is at all surprising). But her propensity to join with the Scalia-led bloc in criminal justice cases, along with this latest ruling, seems a harbinger of things to come. That’s particularly true since one of the areas of greatest concern raised by her appointment — her views on broad theories of executive power in the national security and Terrorism context — has yet to be tested because she has recused herself from the bulk of cases in that area due to her advocacy for Obama’s expansive theories when she served as his Solicitor General (recusals which resulted in several right-wing, pro-government rulings being upheld). Once she starts issuing opinions in that area, it will be much easier to assess the validity of the pre-confirmation concerns that were raised, but these preliminary signs — while admittedly far from dispositive and sometimes even mixed — suggest a willingness to join with the Court’s conservatives in areas where Stevens (as well as the other candidates who competed with Kagan) would not have.

 

UPDATE: Elizabeth Warren, asked about the Medicaid ruling last week, said “she found it ‘pretty shocking’ that seven justices would create a “new limitation on congressional power to condition spending” and ”roll[ed] her eyes when it is mentioned that her former colleague Elena Kagan was one of those seven.” Slate‘s Dahlia Lithwick asserts that “liberals have been strangely silent” about Kagan’s vote because liberals generally expect more betrayals from Supreme Court Justices than conservatives do and have a less clear idea of what to expect from Justices, but she argues that liberals are perhaps too indifferent to Court appointees (“instead of smugly chuckling at the ways conservatives have turned on their chief justice this week, liberals might also want to take a page from their playbook. The courts matter. How we talk about the courts matters. And who is on the courts matters as well”).

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Two-tiered justice

Events surrounding the release of the paperback version of With Liberty and Justice for Some

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(updated below [Thurs.])

The paperback version of my last book, With Liberty and Justice for Some, was released yesterday. Those who wish to do so can obtain it here or here (an excerpt can be read by clicking on the book cover on the Amazon page).

The themes and arguments in it continue to be central to much of what I write. In fact, so many of the new stories on which I’ve focused since the book’s publication are pure expressions of the two-tiered justice system which the book examines (as an added benefit: the red, white and blue cover makes it particularly moving on this most special of all days).

Writing will return to normal in a couple of days. In the meantime, here are several interviews and appearances I’ve done in the past several days concerning the book as well as other topics.

(1) Here is a 10 minute interview I did last night with Alyona Minkovski, who is really a superb interviewer, on the American Surveillance State:

 

(2) I was also interviewed last night by Eliot Spitzer for his CurrentTV program, in two segments, about the two-tiered justice system examined by the book:

 

(3) The event I did on Monday night at the Powerhouse Arena with Jamie Kilstein was really excellent. It was a full house of more than 400 people; numerous people traveled long distances to attend; and the discussion afterward was excellent. The audio to the event is here (the audio for the beginning part, with Kilstein’s opening, has poor quality, but everything else after that is very clear).

 

(4) Last night, I was on Lawrence O’Donnell’s MSNBC Last Word show, along with Paul Campos, talking about some of the issues surrounding the Supreme Court’s health care decision and the reports that Chief Justice Roberts switched his vote. That can be viewed here:

 

UPDATE [Thurs.]: I was on Democracy Now this morning, with Juan Gonzalez, discussing a variety of topics, including the Obama administration’s failure to prosecute Wall Street executives; the two segments can be seen below:

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