The World's Newest Country

Independent journalist Michael Totten has a fascinating piece on the Wall Street Journal website about Kosovo, the pro-American, pro-Israel, Muslim-majority nation on the Balkan peninsula.

Gitmo Recidivists

Campaign rhetoric and the facts on the ground can be entirely different, as reported by the Associated Press and other news outlets:

Terror suspects who have been held but released from Guantanamo Bay are increasingly returning to the fight against the United States and its allies, the Pentagon said Tuesday. Sixty-one detainees released from the U.S. Navy base prison in Cuba are believed to have rejoined the fight, said Pentagon spokesman Geoff Morrell, citing data from December. That's up from 37 as of March 2008, he said. The new figures come as President-elect Barack Obama prepares to issue an executive order during his first week in office to close the controversial prison. It's unlikely, however, that the Guantanamo detention facility will be closed anytime soon as Obama weighs what to do with the estimated 250 al-Qaida, Taliban or other foreign fighter suspects still there.

The Outgoing Administration's Terrorism Prevention Record

Although this narrative won't be found in most mainstream media accounts, Peter Brooks, a Heritage Foundation colleague of Niles Gardiner, offers up a similar assessment of the the soon-to-be ex-president's national security accomplishments:

It's not just by chance that there hasn't been another terrorist strike here at home since the 9/11 attacks at the World Trade Center, the Pentagon and in the skies over Pennsylvania - more than seven years ago now. While far from perfect in execution, the Bush administration pulled out the stops in fighting terror at home and abroad, which, prior to 9/11, had been considered by many to be little more than a law enforcement problem.

Since 2001, the government has thwarted a number of plots, including conspiracies to blow up airplanes and fuel farms, assault an army base, and attack Los Angeles and Chicago skyscrapers - and surely others.

Obama Talks Homeland Security

Some interesting nuggets in relation to homeland security during Obama's ABC News interview yesterday. According to the president-elect, homeland security occupies the top slot in the administration's priority list:

When I set up the hierarchy of things that I've got to do, my number one priority every single day that I wake up is how do I make sure that the American people are safe. We've got an outstanding person in Janet Napolitano who's going to be heading up our homeland security department. She is already in deep consultation with the other members of my national security team and we are going to have to stay vigilant and that's something that doesn't change from administration to administration.

In what must be a major disappointment to his most devoted followers, Obama indicated that his Justice Department appointees probably won't be prosecuting Bush administration officials for so-called "crimes" such as torture and warrantless wiretapping:

We have not made final decisions, but my instinct is for us to focus on how do we make sure that moving forward we are doing the right thing. That doesn't mean that if somebody has blatantly broken the law, that they are above the law. But my orientation's going to be to move forward.

In conceding that Guantanamo prison won't be closed in the first 100 days of the administration, the president-elect has also apparently discovered that the issue is a lot more complicated than it appeared on the campaign trail:

It is more difficult than I think a lot of people realize and we are going to get it done but part of the challenge that you have is that you have a bunch of folks that have been detained, many of whom who may be very dangerous who have not been put on trial or have not gone through some adjudication....I think it's going to take some time and our legal teams are working in consultation with our national security apparatus as we speak to help design exactly what we need to do.

Separately, according to GovernmentExecutive.com, the incoming administration's top counterterrorism official said the new team would in some ways "be more aggressive" in fighting international terrorism than the Bush administration. "Counterterrorism coordinator Dell Dailey said he did not mean the Obama administration would do more to try to kill terrorists, but would be more aggressive in building partnerships with other nations."

The Law's Moral Void

In law, procedure is king. In other words, successfully prosecuting a lawsuit means meeting the required deadlines, filing the proper papers in order in accordance with the official practice book, alleging the appropriate boilerplate facts with the proper citations, and so on.

Failing to follow these technicalities can be fatal to any legal action regardless of the actual substance of the complaint. Fordham University Law Professor Thane Rosenbaum argues in his book The Myth of Moral Justice that our system of justice is too caught up in these proprietary rituals and formalities: "It exists within a vast labyrinthine maze of bureaucratic an technical procedures, fed by an inexhaustible supply of lifeless statutes and precedent-affirming cases, choked by all those court records, docket numbers, and written forms."

Because of the DMV-like bureaucracy, he maintains among other things in his book that the legal system lacks a moral core because it is far too removed from satisfying basic human emotions and needs. The law is at least (sometimes) effective at protecting the body, but the human spirit receives no legal protection, he says.

We don't buy everything in the book by any means, but he does argue persuasively that the law is emotionally indifferent to the actual grievances of the parties to a legal dispute, and that money damages and imprisonment, the "bread and butter of the law," are by themselves insufficient redress. With so many cases resolved out of court or after a pre-trial conference (and it was our experience that judges tend to pressure the lawyers to settle), or through a procedure-based written summary judgment motion, the litigants simply never receive an opportunity to vent in a public setting. Since many if not all lawsuits contain a strong emotional component, even the winner doesn't "believe the case is all over and the issues are all settled."

While it is impractical or inappropriate to remake the courthouse into a group-hug therapy center or a daytime talk show, it is fair to say that many litigants often find themselves figuratively (or sometimes literally) gavelled out of order before they get a full chance to express themselves. Rosenbaum writes that the law has "no tolerance for the emotional complexity of those who muster the courage to enter the courtroom, with all of their consolidated ambitions and repressed rage, wounded egos, petty jealousies and perennial rivalries, competitive fires and thwarted dreams."

Rosenbaum also explains that facts, as we know them in the real world, have a wholly different definition inside the courtroom: "Facts don't have to be true. The need just need to be found and applied to the law. Facts are artifacts of the justice system, while truths are trademarks of the moral universe. Fact is a legal term; truth is a moral one." He goes on to say that,

Indeed what passes for justice in America is often immoral justice--a resolution that make sense legally and can be explained and justified by judges, lawyers, and law professors simply by conforming, in a very narrow formalistic sense, to precedent and procedure, but ultimately feels emotionally and morally work to everyone else. Justice that doesn't feel just, but instead feels like a colossal misnomer.

We would all agree that the court system requires some rules framework by which to achieve peaceful conflict resolution. That notwithstanding, Rosenbaum has clearly articulated the problem, although the system might not be as entirely bleak as he makes out. His solution? A new (and somewhat vague) paradigm in which in which the court system provides "a forum in which to express our stories of hurts and grievances--uninterrupted, unredacted, indulging whatever emotional releases and excesses accompany our words."

That magnitude of reform is unlikely--and impractical--for a variety of reasons, but again, Rosenbaum's general critique of the legal system is well founded.

Border Security Goes South

The deteriorating situation at the southern border is one of the items in the new president's crowded inbox. As the Washington Times reports,

Add another pressing challenge to President-elect Barack Obama's growing to-do list - tamping down a dramatic rise in violence and corruption that has overwhelmed the U.S.-Mexico border and spread an escalating turf fight between warring drug cartels into the United States. Near-daily shootouts and ambushes along the southwestern border pose a serious threat, according to separate government reports, which predict a rise in "deadly force" against law enforcement officers, first responders and U.S. border residents. Even President Bush...warned that Mr. Obama faced a looming war with drug cartels where "the front line of the fight will be Mexico." He said the new president will need to deal "with these drug cartels in our own neighborhoods." Homeland Security Secretary Michael Chertoff said the agency has begun to make progress against "the criminals and thugs" operating along the U.S.-Mexico border, but "we are beginning to see more violence in some border communities and against our Border Patrol agents as these traffickers ... seek to protect their turf."

New Year's--And Eve

Over New Year's, we had a chance to watch for the first time All About Eve, the 1950 melodrama written and directed by Joseph L. Mankiewicz that many critics and film buffs regard as one of the finest movies of all time. It won six Oscars, including Best Picture. The film revolves around a wannabe actress (today we might call her a groupie or perhaps a stalker!) played by Anne Baxter who schemes and manipulates her way to theatrical fame and fortune. The film is also acknowledged as rescuing the then-fading career of Bette Davis who plays an aging actress--another example of art imitating life, or vice versa. (A young Marilyn Monroe even shows up in a couple of scenes playing another wannabe.) A contemporary movie with a similar plot would be far more (if not excessively) more explicit, but the film holds up because of its movie's most compelling feature--the sharp, powerful dialogue. As IMDB notes, "Davis' line 'Fasten your seatbelts, it's going to be a bumpy night' is legendary, but, in fact, all of the film's dialog sparkles with equal brilliance."

What does this have to do with homeland security? Well, on the DVD commentary track, the director's son reveals that Mankiewicz vigorously opposed the blacklist while the head of the Director's Guild of America and particularly disgreed with a mandatory loyalty oath for guild members that Cecil B. DeMille and others sought to impose. According to his son, Mankiewicz fought the blacklist as a matter of principle because he felt that every American had the right to believe what they wanted to believe. But ironically, after things settled down and the battle against the loyalty oath was won, Mankiewicz suggested that his fellow directors voluntarily sign a loyalty oath to show their good faith. His colleagues were outraged, and the proposal never went anywhere. But in his son's words, Mankiewicz was a "super patriot." Today, we would perhaps consider him a strong advocate of unfettered free speech.

[As an aside, this reminds us to a lesser extent of a situation when we worked in management for a corporation that found itself in the middle of a union organizing drive. We got a lot of static from the executive suite for refusing to try to talk employees out of voting yes to the union. Privately, we opposed the union effort for several reasons, but felt strongly that the employees should make up their own minds either way, and let majority rule.]

Hollywood has produced a number of movies in the past couples of years critical of both the Iraq war and the war on terror, all of which failed miserably at the box office. A production company with the necessary resources can make any movie it wants, of course, regardless of how ill advised. That's the magic of the marketplace. We're not talking about making a "pro war" movie as a counterpoint. The term "pro war" is very unsettling if not distasteful, especially for those serving in uniform. That is to say, no reasonable person is pro war, but for the sake of balance (and perhaps even making money), wouldn't it be advisable for the so-called dream factory to slip in a few, non-preachy, pro-victory--for want of a better term--movies every so often? Many people who opposed the Iraq war on the merits still want the U.S. to win there (and in the overall struggle against terror), and fortunately it appears post-surge Iraq on its way to that goal. To take it a step further, since the Hollywood community has at least rhetorically (and with their checkbooks) signed what amounts to a loyalty oath to the incoming administration, will movies that are more supportive of U.S. counter-terrorism initiatives suddenly get the green light? Are there any super patriots in Hollywood?