Author Archives: Michael Froomkin

Political Stalemate in the Iraq Endgame

George Bush yesterday:

The safety of America depends on the outcome of the battle in the streets of Baghdad

Does anyone really believe this stuff anymore? Except, of course, in the sense that the sooner we pull out, the sooner we can rebuild the Army, and the fewer nationalist Arabs we will drive into fanatical hatred of the USA…

As far as I can tell, there is no longer any plan for ‘victory’ however defined in Iraq, not even of the Potemkin village variety. The military itself has begun to admit that the US has suffered a political defeat, even if it remains undefeated militarily:

The chief of intelligence for the Marine Corps in Iraq recently filed an unusual secret report concluding that the prospects for securing that country’s western Anbar province are dim and that there is almost nothing the U.S. military can do to improve the political and social situation there, said several military officers and intelligence officials familiar with its contents.

If there is not in fact any credible strategy for victory (and there are basically no more troops to send), then staying the course is reduced to the Mr. Micawber strategy of trusting that ‘something will turn up’ — or of holding on in a death grip so that the next administration must make the hard choices.

“It’s hard to be optimistic right now,” said one Army general who has served in Iraq. “There’s a sort of critical mass of tough news,” he said, with intensifying violence from the insurgency and between Sunnis and Shiites, a lack of effective Iraqi government and a growing concern that Iraq may be falling apart.

Insanity has been defined as doing the same thing over and over and expecting different results. The US involvement in Iraq has now taken on the look of that kind of insanity.

“In the analytical world, there is a real pall of gloom descending,” said Jeffrey White, a former analyst of Middle Eastern militaries for the Defense Intelligence Agency, who also had been told about the pessimistic Marine report.

Certainly the public has lost patience. And the media, smelling blood, show signs of waking from their torpor. I suspect that the political elites in DC who have not lost their minds now believe that retreat from Iraq is inevitable, but they are afraid to say so before an election. There are scenarios in which this retreat is accomplished with more or less loss of life, more or less loss of face. But if there is a realistic victory strategy, its proponents are being unusually modest. Do not mistake: this is the key. Even when the public comes to believe, as it seems to be doing, that the invasion of Iraq was both a fraud on the US public and a strategic error of historic proportions, most people will find it hard to support withdrawal so long as they can persuade themselves that victory is attainable. The problem for the war party is that any such claims look increasingly threadbare. And once it decides we are spending lives for nothing, the sleeping giant of US public opinion will lash out.

The Iraq debacle has harmed and will harm the United States (and let’s not forget it’s not so great for all those dead Iraqis either). Retreat seals the deal; at that point it is no longer possible to pretend that things will get better. For the people responsible, that means they must either shoulder the blame or find someone to pass it to — and the most obvious candidate is those who call for withdrawal. The tendency to run with the ‘stabbed in the back’ line feeds in to a common confusion in which the withdrawal itself is blamed for the entire war’s damage to the national interest. But in fact, if the situation is really hopeless, then withdrawal only staunches the self-inflicted wound caused by an unnecessary invasion, poorly planned, under-resourced, badly executed, and characterized by war profiteering and outright theft on a scale unimagined in either the Vietnam or Korean conflicts.

Indeed, we are less safe because of the battle in the streets in Baghdad — and in Ambar province. If there truly is no plan for victory more subtle than continuing to lose ground bit by bit, then it’s high time to bring our men and women home.

And yet, I don’t expect it to happen soon. One of the truer maxims in politics is that you cannot beat something with nothing. Sadly, both sides in the largely subterranean debate over Iraq offer what amounts to nothing: the war party offers the daily dose of casualties, the retreat to Baghdad, the bunker strategy amidst civil war. The light at the end of the tunnel is going out, but inertia remains the policy.

The other side, however, has little concrete to propose. Like the war party, it knows the end-state it desires, but not how to achieve it. There is not at present any serious plan for withdrawal on the table; partly that is because the most competent planners in the military cannot (if they are even allowed to contemplate it) discuss it. And partly, I suspect, it is because any plan for withdrawal, even a slow one, would leave chaos in its wake, a poor departure gift indeed. If leaving would create a vacuum filled by disaster, and thus seem to cause it, it may seem the better part of political valor to wait for the disaster to mature fully before leaving.

And thus our current gridlock: the public now wants us out of Iraq by an almost two to one majority. Yet the large majority of both our pro and anti war political leaders agree to temporize, wasting blood and treasure.

Like Vietnam, the most critical questions in Iraq are political, not military. Arguably the political war in Vietnam may have been lost in Dien Bien Phu, but it was undoubtedly over by the end of the Tet offensive in 1969 — a political disaster despite a military defeat for the North. The costly endgame lasted four years and ended ignominiously.

Are we condemned to repeat it?

Posted in Iraq | 3 Comments

Meanwhile, Back in Reality

Reactions to P2911 from Bill Clinton (well, his spokesmen):

Having now seen the first night of this fiction, it is clear that the edits made to the film did not address the factual errors that we brought to your attention. “The Path to 9/11” flagrantly ignored the facts as reported by the 9/11 Commission and invented its own version of history. The result, in our judgment, is irreparable damage to the Commission’s work. More importantly, it is a disservice to the American people.

That the film directly contradicts the findings of the 9/11 Commission is troubling. That it defames dedicated public officials is tragic. But the fact that it misleads millions of people about the most tragic and consequential event in recent history is disgraceful.

and from Richard Clarke:

As someone who was directly involved in almost every event depicted in the fictionalized docudrama, “The Path to 9-11,” I believe it is an egregious distortion that does a deep disservice both to history and to those in both the Clinton and Bush administrations who are depicted….

Although I am not one to easily believe in conspiracy theories and have spent a great deal of time debunking them, it is hard to escape the conclusion that the errors in this screen play are more than the result of dramatization and time compression. There is throughout the screenplay a consistent bias and distortion seeking to portray senior Clinton Administration officials as holding back the hard charging CIA, FBI, and military officers who would otherwise have prevented 9-11.

The exact opposite is true. From the President, to all of his White House team, and NSC Principals (Lake, Berger, Albright, Tenet, Reno) there was a common fixation with terrorism, al qaeda, and bin Ladin. The President approved every counter-terrorism operation presented to him, including many that CIA proved unable or unwilling to implement. He increased counter-terrorism spending by 400% and initiated the first homeland security program in forty years. Even though the US had taken relatively few casualties from al qaeda at the time, the President repeatedly authorized the use of lethal force against bin Ladin and his deputies and personally requested the US military to develop plans for “commando operations” against
them. Even though he knew the timing of an attack aimed at killing bin Ladin would be labeled by critics as a political diversion, Clinton decided to follow the advice of his national security team and pay the price politically.

Keith Olbermann’s Special Comment on Bush: Who has left this hole in the ground? We have not forgotten, Mr. President. You have. May this country forgive you.

Posted in 9/11 & Aftermath | 3 Comments

RIAA’s Latest is Not Quite as Bad As It Sounds

RIAA sues a guy claiming he’s downloading copyrighted songs without permission. Guy moves for summary judgment saying they got his name wrong, he never downloaded nuthin, doesn’t even have file sharing programs on his computer. RIAA doesn’t actually dispute any of his factual assertions via affidavit, which would be the normal response if they had a case (but can lead to sanctions if they knowingly lie). Instead, RIAA moves for expedited discovery.

Is this just a ‘shopping expedition’? You might expect me to say so. And indeed, news reports would make you think so. But I’ve had a look at the affidavit supporting RIAA’s motion, and it’s not baseless at all. Rather, RIAA says that they have third-party info that a certain IP number was used to do downloads it alleges copied material without a license. And it further has information from an ISP linking that IP number to a person it says is the defendant (he contests that).

Seems to me that the court might reasonably first order discovery on the identity issue before going whole hog. But if the defendant is in fact shown to be the person fingered by the ISP, then I think RIAA’s request for further discovery is not ridiculous. None of which means RIAA will win, or deserves to win (or lose) on the merits about which I am of course ignorant.

[corrected]

Posted in Law: Copyright and DMCA | 4 Comments

More on Class Cancellations

Yesterday’s post on class cancellation got interesting responses here and elsewhere; like Dr. Steven Taylor, I think the best was by former guest blogger Jon Weinberg, who wrote

I don’t think that the conflict is between teaching classes (doing my job) and attending conferences (self-centeredly blowing off my job). Attending conferences (either to present papers, or just to learn stuff that feeds into my teaching or writing) is my job, just as teaching is. Being a member of a scholarly community — including the part of that community that isn’t in Detroit — is a big part of what the university pays me to do.

I do think I need to add one clarification to what I wrote: when I ‘cancel’ a class, whether for Yom Kippur or a conference, I almost always reschedule it (one rare exception was last year, when we lost so much time due to having two hurricanes — but even there we clawed back to within 30 minutes or so), so we’re really talking about rescheduling rather than canceling classes.

I didn’t make this clear because it never occurred to me that there was another serious option. From some of the discussion that I’ve seen elsewhere, however, I gather that in some places ‘canceled’ means ‘canceled for good’. I think that’s much more problematic. And at some point, very quickly, you might even fall below the number of class hours required by the ABA.

Posted in Law School | Comments Off on More on Class Cancellations

‘The Best War Ever’ Publicity Video

The publicity video for ‘The Best War Ever’



Much more accurate than P2911.

Posted in Iraq | 1 Comment

On Canceling Classes

Prof. Bobby Chesney asks if it’s ok to cancel a class for a conference. Will Baude, Yale Law student, channels Felix Frankfurter and says that it would be something akin to a violation of a ‘sacred trust’:

So I think a very strong presumption against sacrificing class even further to one’s other professional ambitions is at the very least an ideal. I would like to hope that is not too much to ask for.

It’s probably close to what I would have said when I was a student there.

Where you stand depends on where you sit. It’s easy to say that stuff when you are at a school which is on the East Coast corridor, and where most people will come to you, and where the school’s name will get faculty invited to things, published, and noticed even they don’t show up. Out here in the provinces, if we want to attract top faculty and have them participate actively at a national and international level, we have to assure them they will not become unpersons for eight months of the year.

We think, perhaps self-servingly, that it’s in the students’ interest to be taught and supervised by people who are involved in new and important things things in an active way. But when it’s a long way to that meeting, it’s not a day trip (and ever more so in these days of uncertain and encumbered air travel). So we have to compromise the ideal or pay an unacceptable price. Note also that most of us teach more hours per year than they do at Yale, so we have fewer days of the week free. Plus if you are lucky enough to be in demand, conferences sometimes book you a year in advance — well before you know your teaching schedule…

I do everything I can to avoid canceling classes, but I would guess I average about one to two days canceled a semester to give a paper at a conference or to participate in state, national, or international law reform activities. Should I have said no to the Chief Justice of the Florida Supreme Court when he asked me to serve on a committee on privacy and court records? Even though, modesty aside, I was probably the legal academic in the state who knew the most about the computer and privacy issues? I’d have loved to avoid that chore, but it seemed like something I ought to do. Even if it meant rescheduling a class or two. Was it just “professional ambition” to accept invitations to give papers at big conferences in my field at Yale or Harvard or Stanford? No doubt in part; but I also learned a lot by going and met some great people, some of whom are still my teachers. Part of that, I hope, filters into the classroom.

I agree that too much of a good thing would be bad; and I think the event has to be pretty important before I’d cancel a class. But if Miami didn’t have a policy that gave me some flexibility, my work would be a lot poorer for it, and so too would some of my teaching.

Makeups are unpopular with students, and rightly so; and what’s acceptable could easily grow into what’s oppressive or unfair. We do have a makeup time in our schedule when no one has classes, which should make it theoretically easier. In practice there’s always someone with an internship or something, so it’s never perfect. But I think the tradeoff is far more complex than Mr. Baude suggests — especially outside New Haven, Cambridge, and at most a handful of other schools. On balance, I think I and my students benefit from the number of things that my colleagues and I do — much of which, given our geography, would not be possible if we had a more rigid rule on rescheduling classes.

I have to add that almost invariably our students are unbelievably gracious about it (at least to my face) when I explain to them what is going on and why I’m rescheduling a class. And I appreciate it.

Posted in Law School | 4 Comments