BITTERLY DIVIDED

Let's say that John Boehner and Barack Obama decide to spend some social time together. So they agree to meet on Friday evening at 2Amys on Macomb Street in DC. They arrive at the restaurant and chat amiably. They settle on ordering pizza. Disagreement erupts at this point, as Obama wants mushrooms but no onions whereas Boehner wants onions but no mushrooms. Hours pass with neither side budging.

Would it be accurate to describe the two parties as polarized? Far apart? From one perspective they are. They are at a clear impasse and they refuse to give an inch. But look at the bigger picture. They've already agreed upon almost a dozen things. They agreed on Friday. Then they agreed that evenings are clearly better than during the day, and that their goal should be to spend some time getting to know each other better, i.e. going to dinner rather than going to a concert, because they want to be able to talk. They agree on a restaurant. They even agree that of all the things available on the menu, they should have pizza. And they agree about every aspect of the pizza except the toppings in question. They are stalemated, but it would be more accurate to describe them as intransigent than as polarized.

One of the strange aspects of our two-party system is that it is possible to argue quite persuasively that the parties are too far apart, yet it is possible to make an equally persuasive argument that they are too similar. Often people find themselves believing both, and making one argument today and the other tomorrow. The answer lies in the fact that in the current political context the parties excel at disagreeing; about what they disagree, however, is often quite narrow. Dining out versus cooking at home is a big disagreement. Bickering over the mushrooms after we've already agreed that we're going out for pizza is not.

As we watch Obama's Attorney General argue that drone strikes in the U.S. are legal and constitutional, or to look at the administration's record on terrorism/security issues in general, it's impossible to shake the feeling that this is basically a continuation of the Bush administration with cosmetic changes. We conclude that the parties are too similar. Yet we can also produce dozens of examples of ways in which the two are radically different, even without changing the issue dimension to something other than national security. Yet here we are with a government that has already agreed that we should put missiles on robot planes and give the president authority to kill people, including U.S. citizens, with them…haggling about where he can do it. I can see the argument that within the U.S. versus outside the U.S. is a significant distinction, legally. But look at how far down the rabbit hole we already are, and how many things have already been decided.

This is the real drawback of our political system and process. With only two parties and the end of the political-ideological conflict between socialism and capitalist democracy that defined most of the 20th Century we're left debating most – albeit not all – issues within a very narrow ideological range. We've all agreed upon the End of History and that free market capitalism is the final form of human social organization, and that America shall be a hegemonic military power, and that our politicians shall be beholden to the financial interests that back them, and that we will argue only in the margins (except on "social" issues, where legitimate disagreement is permitted because the titans of industry don't give a shit about them). So we have already settled on policing the world and are now arguing about how best to do it, just as we have decided that the financial industry will shape our society to its liking and we are now arguing about whether a handful of regulators should be tasked with watching them do it.

Oh, and if the pizza analogy at the beginning were real Congress would solve it by rejecting both mushrooms and onions in favor of green peppers, so nobody would be happy. Except David Brooks.

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37 Responses to “BITTERLY DIVIDED”

  1. Glen.h Says:

    " We've all agreed upon the End of History and that free market capitalism is the final form of human social organization, and that America shall be a hegemonic military power". Not out here in the rest of the world, Ed, not by a long way…I think both side of politics in your country are in for a few rude shocks on this, and not just from your official enemies. (I also understand you are criticising that particular mind set!)

  2. The Everlasting Dave Says:

    For my entire adult life I've felt that both parties have agreed the American people don't matter when compared to vast sums of money, and the only reason we still debate gay marriage/ abortion/ whatever is because there has to be some window dressing to keep us from noticing that it doesn't matter which team you're on, red or blue. Green's the only color that matters. And Glen.h, I look forward to it.

  3. Mo Says:

    The French Revolution fascinates me, as I wonder what its echo in our time would be like. We have a rich and condescending aristocracy right out of Let 'Em Eat Cake central casting, a rich and reactionary religious establishment…

    Who are the peasants? Who is the Paris mob? Who are the Jacobins? What is our equivalent of the guillotine?

    And most of all, what is the tipping point where shit starts to get real?

  4. wetcasements Says:

    "Who are the peasants? Who is the Paris mob? Who are the Jacobins? "

    They've got cool tumblrs.

  5. Middle Seaman Says:

    As an old lefty, the world for me is right to left. We do have two Republican parties. Obama is positioned solidly in between the two. He is right of Nixon and Eisenhower. Obviously, there is a wide agreement within a single party. The American left is fully in support of Obama, which makes them right wingers.

    It's a hall of mirrors, the fat look thin and the thin look fat. The tall are short and the midgets control us all.

  6. Seth Says:

    The David Brooks crack at the end made me laugh out loud, before 6 am. Brooks' father, who I rather like, recently retired from teaching in the same department I do. I've always felt bad for him that his kid is such a twit.

  7. c u n d gulag Says:

    I just turned 55, and when I was younger, the Democrats and Republicans used to battle between the 30 yard lines.

    But over the last 30+ years, the Conservatives have moved the goal posts so far, that now, on this new field, the two parties are battling with the Republicans on the attack, and the Democrats defending their own goal line from inside the 10 yard line.
    Today's Democrats are more Conservative than than many 60's and 70's Republicans, and today's Republicans are about as Conservative as, well, let's just say, certain Fascist European leaders and nations in the 1930's.

    And sure, the Republicans have lost the last two Presidential races pretty badly.
    And a lot of Senate races.
    But if President Obama makes any concessions on Social Security and/or Medicare, even what he considers minor ones, he will allow the Republicans an opportunity to score – and maybe win.

    Remember how the Republicans took the bullsh*t about there being "Death Panels" in Obamacare in 2010, and screamed about it hither, thither, and yon, and won the House in a landslide? And then gerrymandered themselves into secure districts?

    Let Obama agree to "Chained CPI" for SS, and/or raising the age eligibility for SS and/or Medicare, and the Republicans will take those changes and beat the Democrats over the head with them, like they were rented red-headed step-mules.

    And never mind that the Republicans have wanted to kill SS for almost 80 years, and Medicare and Medicaid for almost 50 – somehow, the public seemed to forget all about that in 2010.

    Think they can't, or won't, forget again?

    Is there a difference between the two parties?
    Yes, but it's a matter of degrees.
    The Republicans of today would prefer it if we all died as quickly as possible, and with as much pain as possible, so that their rich and soul-less benefactors can keep as much money to pass on to their next generations as possible.
    And today's Democrats aren't fighting to improve people's lot, like they did from the 1930's to the 1970's (with the obvious exception of Southern Democrats, who were all FOR programs, as long as it didn't affect their Apartheid States by helping African-Americans) are trying to hold off quick and painful deaths, to make it possible that we suffocate and starve slowly.

    And don't get me started on our worthless corporate MSM, and how much damage they've done in the last 30+ years, giving cover to the Consevatives, with their, "But, both sides do it," mantra meme.

    Both sides are NOT doing it.

    There's a difference between a party that wants to inflict as much pain as possible as quickly as possible, and one that's at least trying to hold on tooth and nail, to programs that help people try to hold off that quick and painful death.

    Look, rich MSM morons, you festering postules on the anus of humanity, we're all going to die. We all know that.
    But some of us would prefer to go as slowly and as painlessly as possible, the Democratic way, and not have our lives quickly and painfully snuffed out so that the rich can keep more of their ill-gotten gains, to pass on their their worthless children, and grandchildren, and great-grandchildren, etc.

    Pretty depressing, ain't it?

  8. deep Says:

    There is no tipping point Mo because Teevee is still the opiate of the masses. Just go to MSN dot com and see what they're calling "news" there these days.

    "10 reasons why we quit watching 'Glee' "
    "5 tough questions to ask before changing careers How to boost a résumé with limited experience"
    "Celebs: Taylor's house, Alvin Lee & Townsend"
    "Scene-stealing shoes of the silver screen "
    "Get the scoop on daylight savings time"

    Only one headline mentions the filibuster and I bet that one hardly gets any clicks.

  9. Arslan Says:

    Yahoo News is the same way. You have top stories which appear in the center with pictures, then you have the headlines below. So what you often get are stories like "Can your dog think?" on top, and below in the little headlines you might see a story like "President shoots wife."

    But I don't blame TV and high living standards too much(aside from political programs which distract people's anger toward scapegoats). I think part of the problem is America's poor understanding of class.

  10. Andy Brown Says:

    I'd rather have had the lamb curry, but if it's going to be pizza, screw Boehner and his damned onions.

  11. Brian Says:

    Perfect ending, because I fuckin' HATE green peppers.

  12. John Says:

    I will never understand how apparently full-grown adults can argue, with a straight face, over whether or not the particular patch of dirt a person happens to be standing on or was born on affects whether it is moral and legal to blow them up with a missile fired from a robot plane.

    I know I'm a weird person for holding this belief, but I believe that you either support justice and due process, or you don't. Supporting it for *some* (read: non-brown) people but not for others makes you just as evil as someone who doesn't support it at all.

  13. c u n d gulag Says:

    Andy Brown,
    Try the lamb vindaloo, instead!
    YUM!!!
    But have a fire-extinguisher handy, or a glass of mile nearby, just in case.

  14. Well, mostly Says:

    Good point! The stadium scene in Life of Brian comes to mind, arguments over various liberation groups. Gotta look at this with some humor or the mind curls in on itself at the absurdity: what passes for debate, journalism, etc. MP where are you now!
    Allow me an addition: the kitchen can't make these two gents a pizza anyway as they are filling a delivery order for 50,000 pies for a lobbyists party down the street where that issue is resolved by ordering 1,000 onion, 1,000 mushroom and every other imaginable combination to keep the big boys happy. They really don't care if these two guys eat at all or ever resolve their little "toppings" argument. Maybe after a couple of pitchers it won't all seem so fg important. So we wait in line trying to get a table.

  15. Jon Says:

    Everyone likes pepperoni, but no one will even suggest it because it looks like giving in.

  16. Mo Says:

    I wonder if the latest French Revolution iteration might have been the Cultural Revolution in China.

    The question remains, how to wrest power from the oligarchy without a massive shitstorm? Starvation seems to be a perpetual trigger – is it going to take the droughts and weather disruptions of Global Warming to make people desperate enough to attack their elites and re-distribute the wealth?

    And does it really take the equivalent of the guillotine to put elite tails into the wringer? The Terror beheaded Lavoisier.

  17. Tveb Says:

    Well, according to Tom Ferguson ("The Golden Rule: Investment Theory of Party Competition and the Logic of Money-Driven Political Systems") this has been generally going on for a while now; I think that the rise of Finance has just exacerbated it.

  18. Rosalux Says:

    Right on, as usual.

    Can any one spell out for me, however, why drone strikes per se are unconstitutional or illegal under international law? I can understand that in certain instances they would be, but in Holder's now-famous "drone" memo he actually makes some very compelling arguments why drone strikes may be perfectly acceptable under international law. I've heard a lot of soft-focus hand-waving about the evils of drone strikes, but have seen no rigorous analysis of why THIS is the civil liberties issue we should be worried about when there are plenty of other civil liberties being threatened.

  19. zach Says:

    I have nothing to add other than that 2Amys is fucking awesome.

  20. Both Sides Do It Says:

    I might point people to this post next time I get in a "there are huge differences between the parties" discussion. The succinct way it breaks things down at different levels of abstraction is really great.

    Rosalux,

    Searching for drones on balkin.blogspot.com, lawfareblog.com or opiniojuris.org will give a good overview of the arguments on both sides. But here are two common ones against the legality of drone strikes under both international law and the constitution:

    International Law – because the US is engaged in hostilities with a non-domestic state-less actor, the body of international law which is applicable calls the state of affairs a Non-International Armed Conflict, or NIAC. There are fairly objective and established rules for who can be attacked in an NIAC (developed during the whole Serbia mess). One of them is that targeted groups must belong to the same organizational structure that first engaged in an attack. That structure can change, be called different names, etc. but there has to be some throughline from the original organization to current groups.

    There's a pretty large consensus that the groups the US is targeting with drones don't meet that criteria. A group calling itself "Al Qaeda in Burbank" or whatever doesn't cut it. And the US itself classifies targets according to three tiers, ranging from "original members of the al qaeda organization that did 9/11" to "members of groups that share rough ideological goals with al qaeda". The latter doesn't meet the criteria, and there's a lot of bombing of the former and almost none of the latter.

    Constitutional law – due process is being violated because the mechanism for determining targets doesn't follow constitutional guidelines. There's a three-part balancing test outlined in a case called Mathews v. Eldridge that applies in cases where the government is taking people's lives, and the part that protects the people being targeted – the risk of false accusations, bad decisions, etc. – isn't addressed at all by current practices. This argument definitely applies to killing citizens, but there's disagreement over whether the Constitution guarantees due process to non-citizens. (In the sense that John Yoo says no and lots of other scholars say yes.)

    These arguments aren't about drones specifically but the increased set of targets they make available means that the use of drones will bite these arguments more often than other forms of dropping death from the sky.

    As far as "why this civil liberties issue as opposed to others", drone use is one area in which civil liberties law is looking for a framework that will determine how future actions and laws are judged. If a lax or fuzzy set of rules or oversight gets put into place now governing the use of drones, in twenty years they will be effectively unrestricted on both foreign and domestic soil. Everyone can come up with their own parade of horribles for that scenario. There are a lot worse violations of civil liberties currently happening, but drones have the capability to become very bad very quickly if the proper framework isn't in place.

  21. Both Sides Do It Says:

    whoops I messed up the former/latter construction

  22. 한국의 친구 Says:

    This is basically what Chomsky has been saying for the past 40 years or so.

  23. Rosalux Says:

    Both Sides Do It,

    Your answer is not entirely satisfying, though I'll surely look at the links you suggest.

    I'm somewhat familiar with the body of international law governing non-international armed conflict, and I know of no principle stating that you can only target an organization if they're the same organization that first attacked you. Yes, the AUMF authorized the executive to prosecute Al-Qaeda and all the offshoots of al-Qaeda (in North Africa, Yemen, etc.) are clearly distinct entities, but you don't need to wait for a hostile force to attack you under international law before you attack them. Nations retain the right to self-defense under both customary international law and the UN Charter, and if we have intelligence that a group in Yemen is planning attacks on the United States (as they have attempted in the Detroit shoe-bombing), then of course we can pre-emptively strike. In my view, the classic law-of-war principle (necessity, distinction, proportionality, unnecessary suffering) are met in many drone strike situations (not all, obviously, we shouldn't be blowing up villages where we don't have clear intelligence that there's an imminent security threat), but the point is that it's a nuanced issue.

    As for the issue of constitutionality under the Mathews v. Eldridge test, I have to disagree here. What the DOJ said is that the test would only be satisfied in a very limited situation, where (i) a high level official had information that an individual posed an imminent threat of violent attack against the US, (ii) where a capture option is infeasible, and (iii) where the operation is consistent with law of war principles (see above).

    I understand that drones are scary, and often result in unjustifiable civilian deaths, so I think we do need to clarify the circumstances in which they're used, and who can sign off on it, but I think the DOJ actually has a pretty justifiable legal framework for dealing with what is otherwise a very intractable problem: non-state actors in very inaccessible regions of the globe plotting attacks against the US, where capture or legal process is often completely unrealistic.

  24. Eric Michel Says:

    ???

    Mathews v. Eldridge is about social security benefits.

  25. Jak the Yak Says:

    I don't accept the End of History. Just sayin'. I think that it's a stupid idea, wishful thinking on the part of those who most benefit from the status quo, and that things will inevitably change, and that it's too bad I won't be alive to see the look on the faces of those who now smugly assure themselves that "the times they aren't a changin'" ever again. I have no idea what form the changes will take, or what the world will be afterward, but nothing lasts forever.

  26. Both Sides Do It Says:

    Rosalux,

    The organizational requirement for a NIAC to exist was established in the prosecution of Dusko Tadic by the International Criminal Tribunal for the Former Yugoslavia (ICTY) and is a bedrock principle in international armed conflict law. It was re-affirmed and clarified in the Haradinaj and Boškoski trial chambers, and adopted by the ICC in the Lubanga prosecution.

    The US needs a NIAC to exist between itself and whoever it bombs because if there isn't the laws governing lethal force are too restrictive. Under an NIAC, international humanitarian law (IHL) governs the use of lethal force; if there's not an NIAC, then international human rights law (IHRL) does. There's not enough space to go list all the implications, but I'll list two: collateral damage and the burden of intelligence.

    Collateral damage is allowed under IHL but not under IHRL. If there's not an NIAC, then it's a crime for a person to be killed that is not specifically targeted. It's also illegal, under IHRL, to kill someone who is not engaged in the active planning, preparation, or execution of an attack on human life. Just being in a gen-u-wine Al Qaeda training camp, or being in the presence of a gen-u-wine Al Qaeda leader, is not enough.

    What this means is that if there's not an NIAC, IHRL applies and intelligence has to be so certain and attacks so precise as to make illegal the vast majority of drone strikes. Most (around 92%) are "signature strikes": attacks that target “groups of men who bear certain signatures, or defining characteristics associated with terrorist activity, but whose identities aren’t known.” If the intelligence can't nail down the identify of a person, it can't determine if that person is in fact preparing, planning or executing an attack, or running a terrorist training compound; the former are legal targets, the latter is not. Additionally, any person who is killed that is not a specified legal target is collateral damage, and everyone knows the extremely high incidence of collateral damage in these strikes. Note that these IHRL restrictions apply even when other classic laws of war conditions are met.

    If there is an NIAC, then IHL governs the conflict and things get a lot easier. Collateral damage is acceptable, and anything on a compound or training camp is fair game.

    You're right that an NIAC is not the only international law framework that can legalize violence, but it's the only one that covers the vast majority of drone use, and reliance on the classic law of war principles you cite would make the vast majority of drone strikes illegal.

    As far as the due process analysis, read that DOJ white paper (PDF) more carefully. The Department itself considers the Mathews v. Eldridge test that balances three factors important, and agree that should they fail that test drone strikes would not be legal (pages 5 and 6). (Again, against a US citizen; non-citizens are trickier.) They note that the test was used by the Supreme Court in Hamdi, and that it's also applicable for determining the constitutionality of drone strikes.

    But then, in their analysis, they only consider two factors of the balancing test. They don't even mention the third factor, the risk of false positives and poor governmental decision-making, which is the factor that keeps the test from being a foregone conclusion. And, to make that oversight even more egregious, the Supreme Court in Hamdi based most of their due process analysis from the Mathews v. Eldridge test on that factor.

    So the DOJ agrees a common due process test that balances three factors is important, references a recent Supreme Court war on terror case that used that test, and proceeds to completely ignore the factor that keeps the test from being a foregone conclusion and which the Supreme Court based their decision on in the referenced case.

    That is nowhere near competent legal analysis, and the framework it builds isn't justifiable on its own terms.

    And these are just two legal problems. There are others: the concept of "imminence", judicial review . . .

  27. Both Sides Do It Says:

    Eric Michel,

    As so often happens, the Court established an important Constitutional test (determining whether or not someone received due process) that has been applied in areas far afield from the one in the original case. Hamdi v. Rumsfeld is a prominent case in the war on terror that uses the Mathews test.

  28. Eric Michel Says:

    Oh wow, the plurality did cite it in Hamdi. That's … surprising. I've only seen Mathews v. Eldridge used as a constitutional test for when government revokes statutory benefits.

    I owe you a coke.

  29. JazzBumpa Says:

    In terms of foreign policy we really are in W's 4th administration. Or Eisenhower's 15th. It's American exceptionalist imperialism all the way down, and political party matters not one whit.

    Domestic policy is a different story, Though the Dems are bad, the Rethugs are worse. Immeasurably worse. About 50 years ago my father told me that once in a while, if a crumb falls of the plate, the Dems might let you keep it. The Rethugs won't even do that.

    One party once to destroy SS, Medicare and Medicare. [Don't kid yourself for a moment – this is exactly what the Rethugs are after.] The other is merely willing to see these programs gutted.

    Though either outcome is shitty, the choice is still pretty clear.

    But, who knows, maybe my grandsons really will die on the barricade.

    WASF!
    JzB

  30. JazzBumpa Says:

    "once" for "wants"

    Even this time of night I can't figure our how that happened.

    JZB

  31. Bernard Says:

    all this legalese for drone killing, while the Constitution and the Bill of Right have been completely gutted.

    boy talking about misdirected BS. i can't think of a better example here. i can't even begin to find words to show or say how easy it is for the "Powers that Be" have us where they want us.

    thanks for showing how easily we have lost the American freedoms and rights we really did take for granted. and they are LONG GONE!!

    so enjoy your FIGHT over teh "legality" of drone use. What a conversation. We deserve all the drones we will get, as it will merely be a short period of time before they come after us Americans.
    20 years? lol what a fantasy land some people live in.

  32. Bernard Says:

    another good description would be the "frog in the pot" with the heat slowly increased so as to not get the "frog's" attention. lol we are dead frogs. cooked like the proverbial goose. lol
    Americans are sure some easy prey.

  33. Rosalux Says:

    @ Bernard – In terms of our collective fate, I'm much more worried about, oh, global warming than drone strikes (though I do grant that it's an issue where we need more clarity and more oversight)

    @BSDI – I don't have time for a full rebuttal but, briefly, I think you overstate the importance of Tadic in international law and I still think that the administration's legal arguments pass the laugh test (which could not be said for some of Bush admin's legal arguments). Ultimately, I think I'd just return to the initial impetus for my post here, which is to suggest that the public outrage over drones is highly misplaced, because most people assume that the problem is that we're using drones at all and that there's no legal (and ethical) framework where collateral damage or mistakes could happen. That's just not true – we do need a more rigorous legal framework, and more accountability for the use of drone strikes, but that's doesn't make for an easy, black and white issue to get outraged about.

  34. Both Sides Do It Says:

    Rosalux,

    Completely agree that a lot of outrage on drones is misplaced unease and based in a lot of ignorance.

    Whatever Tadic's general importance (which I didn't think many people questioned . . .) it's pretty on-point to whether a group can be a party to a particular NIAC and at least has to be dealt with.

    And that's one of the big problems with the Administration's public legal justifications: there are huge omissions that don't deal with the most superficial readings of the relevant texts.

    But yeah a lot better than the giant shits Yoo, Addington and Bybee regularly took.

  35. Jim Says:

    Fabulous final sentence…needed the chuckle.

  36. Frankly Says:

    you have the argument over toppings a bit wrong. Obama wants mushrooms and no onions but Boner wants hubcaps and anthrax. Bobo insists that all the really serious people want to meet in the middle on the pizza. He is not sure where that middle is but he is sure its the Dems fault for not being more flexible in giving up on mushrooms and embracing hibcaps and anthrax

  37. Bonnie Belle Says:

    "Same" and "different" are political issues, which you don't seem to recognize. You must answer three questions before you say two things are " the same." (1). " The same to whom?" (2). For what reasons? (3). For how long?