Saturday, October 12

Bob Knight Must Be Having a Cow

The NCAA has named Myles Brand to be its new president, with his term beginning in January. Brand, currently the president of Indiana University, is best known for his running feud with former IU basketball coach Bob Knight, whom Brand fired two years ago. Knight is no doubt characteristically apoplectic at having his one-time nemesis once again in a position of authority over him.

Brand's departure leaves IU—and particularly the Indianapolis campus where I work—in an awkward position. Brand, I think it's safe to say, was not particularly popular in Indianapolis, especially in the early years of his presidency. Most folks, quite understandably, associate Indiana University with the main campus in Bloomington, a charming college town about 45 miles south of Indianapolis. Like many state universities, however, IU has multiple campuses, including one in the state's largest city. In Indiana's case, that would be Indianapolis, where IU shares a campus with Purdue, Indiana's land-grant college (the combination goes by the unfortunate name of IUPUI). And despite the considerable appeal of college towns like Bloomington, many students prefer attending college in cities. A state university president thus can face a delicate balancing act, trying to strengthen the urban campus without undermining the position of the main, non-urban campus.

When Brand first became president of IU, there was little question that, in his mind, the balance tilted heavily toward Bloomington. He strongly supported the IU School of Medicine, which is based on the IUPUI campus, but he seemed to view the other programs in Indianapolis (including the law school where I teach) as if they were simply part of a large community college. He wasn't particularly shy about expressing this opinion, either. At an annual meeting with young faculty, for example, he told one of my colleagues that, since we were located in the state capital, and the large majority of our students were from Indiana and planned to practice in Indiana, we on the faculty should focus our scholarship on state law and the state legislature. State law and state government are important, of course; nevertheless, this was received as an insult my colleague (who, at the time, already had publications in the Yale Law Journal, the Georgetown Law Review, the Duke Law Journal, and the Michigan Law Review, among other journals) and by many others on the faculty, who were hired after nationwide searches, who had significant research interests that extended beyond Indiana's boundaries, and who had credentials similar to those of our counterparts on the Bloomington faculty.

As time went on, Brand's views toward the Indianapolis campus seemed to soften somewhat, thanks in large part to the tireless efforts of IUPUI Chancellor Jerry Bepko. In the last couple of years, Brand has publicly stated his desire to see IUPUI develop as a significant research institution (development that is already well underway). But with Brand now departing, the possibility exists that we in Indianapolis will have to refight the battles of the 1990s—and will have to do so without the leadership of Bepko, who is himself stepping down at the end of the academic year. The challenge remains: how to boost the programs in Indianapolis while simultaneously maintaining and strengthening the programs in Bloomington? It's going to be an interesting (and in some ways nervous) few years.

Friday, October 11

Be Careful

Max Sawicky publishes an email from a SWAT sniper offering advice on steps folks in the D.C. area can take to maximize their safety. Tim Dunlop, meanwhile, continues to offer regular updates on the shootings taking place in and around the nation's capital.

Hold a Vote

Howard Bashman has been reporting all week about the decision to delay action on the nomination of Judge Dennis Shedd to a position on the United States Court of Appeals for the Fourth Circuit. The decision is said to be a rebuke to Sen. Strom Thurmond, on whose staff Judge Shedd once served.

I have no sympathy whatsoever for Sen. Thurmond, who played an important role in blocking President Clinton's nominees to the Fourth Circuit, nominees who were not given the courtesy of a vote. I do, however, sympathize with Judge Shedd, despite our ideological differences. There is simply no good reason for holding nominations in abeyance for more than a year. That was true when the Republicans controlled the Senate, and it remains true while Democrats control the Senate. If the Democratic members of the committee want to oppose the nomination of Dennis Shedd, they are free to vote no. But they should vote.

Thursday, October 10

Just Wrong

In last night's NHL opener, Mark Messier began what is likely his last season by scoring two goals, helping new Rangers coach Bryan Trottier to his first victory. But happy as I am to see the Rangers win—an occurrence that's been all too rare for the last couple of years—something about the win seemed profoundly wrong. Quite simply, Bryan Trottier should not have anything to do with the Rangers. Trottier, a Hall-of-Fame player, was a central figure in the New York Islanders' four consecutive Stanley Cups during the early 1980s. Rangers fans hate the Islanders; Islanders fans hate the Rangers. Much as I admired Trottier's skill as a player, he's the enemy.

In the last year of his long and successful career, second-baseman Willie Randolph, a mainstay with the great Yankees teams of the late '70s, played for the Mets. That seemed wrong, just as it will seem strange if Randolph is hired as Mets manager this off-season. Tom Seaver wouldn't have been right as a Yankees announcer even if he had broadcasting skills to match his fastball. And, from a fan's perspective, Bryan Trottier shouldn't be a Ranger.

A Few Links on a Busy Day

* Kevin Drum brilliantly demonstrates the intellectual emptiness of "fisking," a method of rebuttal favored by warbloggers, by fisking the Gettysburg Address.

There are certain types of arguments that lend themselves to point-by-point rebuttal. I think back to Ron Borges' absurd argument, at the tail end of this year's Tour de France, that Lance Armstrong was not an athlete, let alone a great athlete. In his essay, Borges stated the various qualifications that he believed a great athlete had to have, and I responded by arguing (effectively, I thought) that Armstrong possessed each of the listed qualities in spades. My response could, I suppose, be described as a fisking, although it didn't follow the form in its purest incarnation. But given the format in which Borges presented his description of an athlete's qualifications, it seemed an appropriate way to respond.

That doesn't mean, however, that it's always appropriate, in responding to an argument, to treat each sentence or two as if it were a bullet point, and to try to take it apart as if it stood alone. As Kevin writes: "Folks, there's a reason you don't see "real" pundits do this kind of thing in the New York Times, and it's not because of liberal media bias. It's because it's stupid. Knock it off."

* On the subject of patriotism and opposition to the president, Demosthenes writes:

I'd like to come out and say that, yes, I'm against Bush. Many people are, both inside and outside the United States. We don't want his agenda passed, we want his policy initiatives checked, we think that his (s)election was a sad mistake, we want the Democrats to take Congress so they can frustrate his attempts to remake America in the image of his neo-conservative handlers, and we think his foreign policy is deadly dangerous. We don't want him to be president a minute longer than he is constitutionally entitled to, and will bend our every effort that we legally can to ensure that he follows his father's legacy of a single-term presidency.

We are not, however, against the United States. If we were, we wouldn't work against him, and the harm he would do to the United States. We'd let him do it, and reap the rewards of the chaos, inequity, economic ruin and lowered standard of living that he could leave the United States in. Those inside the country could take power by taking the reins themselves and taking credit for the rebuilding, and those outside it could exploit America's weakness to become more powerful themselves.

We could, but we won't.

We won't because we like the United States, like Americans, and want both the country and its citizens to prosper and succeed. We think it has an important role to play in the world and a unique perspective on that world and on those who live within it. It is not necessarily a commanding role, but it is a key one, as the realities of the American experiment make almost inevitable.

It's appalling that the difference between political opposition and anti-Americanism still has to be explained, but given the example Demosthenes cites, it clearly does, and Demosthenes makes the point well.

* Max Sawicky generated a fair bit of heat by suggesting last week that warbloggers, as a group, regard Oliver North as "an American hero." Challenged to provide evidence, Max listed more than twenty blogs that, he said, had made positive references to North. Challenged once again by assertions that the listed posts did not reflect hero worship, Max recognized the other day that he had been drawn away from his essential point, and wrote:

My subject was the reception by the Right, including bloggers, to the trip by three Democratic members of Congress to Iraq. As a point of contrast, I used the example of a right-winger who had gone much further than merely traveling to the country of an enemy of the U.S., Ollie North. As some readers have pointed out, North had associates who were pardoned by Bush pere, and today some enjoy influential positions in the Bush Junior Administration. The hypocrisy underlying the warm or neutral reception to the latter by the Right, in light of the faux outrage accorded the former, ought to be obvious. That's why I only devoted a sentence to it originally.

Hey, right-wingers! All of you! Your president, vice-president, and a motley gaggle of associates caved to terrorism, tried to buy off terrorists, gave arms to terrorists, committed bushels of felonies, bungled the investigation of wrong-doing, and pardoned themselves! They should have been roasted on a spit but they got off scot-free! These are your guys! Your heroes! They're still in power, and your slavish devotion to them has never ebbed! Fact-check that!

To which Ted Barlow responded:

J.C. on a pogo stick, I'm glad somebody said it. If you want to see a left-winger lose his shit, try to explain to us why "the flag was falling" during Zippergate, but Iran-Contra was no biggie. Explain why the Marc Rich pardon is a subversion of democracy while the Bush I pardons of key Iran-Contra figures were not worthy of comment. I cannot tell you what a joke Rich-rage looks like to people like me who were vaguely paying attention in the early 90's.

Oliver North is a traitor and a felon. After being convicted of selling arms for hostages, obstructing justice, and illegally accepting a $16,000 home security system from a defense contractors (oh yeah, I remember), Oliver North should have faded away. (What did he think happens when you give terrorists access to prizes for kidnapping Americans? Didn't he understand incentives?)

Instead, Oliver North is a famous millionaire. He won the Republican nomination in an unsuccessful run for Virginia's Senator. (Kind of puts Torricelli into perspective, doesn't it?) And he was able to raise $21 million along the way. He had a best-selling book and a series of columns, radio shows, and speaking tours. You can read his latest column at

Ted went on to quote a number of prominent Republican senators and representatives voicing their praise of North. Disgusted as I was to be reminded of Republican support for North, I'm glad that both Max and Ted reminded us of yet another significant instance of Republican hypocrisy.

* Finally, Charles Kuffner reprints an email from a friend that ably states the case for Ron Kirk, Democratic candidate for the open US Senate seat in Texas. Contributions to Kirk's campaign can be made here.

Update: Alex Frantz has further observations about North's continued popularity, including a number of links to sites repeating as fact the absurd myth that, during his 1987 Iran-Contra testimony, North presciently identified Osama bin Laden as "the most evil person alive."

Sober Men and True

Congratulations to Jason Rylander for the fine notices he's received for his portrayal of Ralph Rackstraw in a D.C.-area production of H.M.S. Pinafore. I'd viewed his lack of posts with growing dismay, but it's now evident that his time has been well spent. And it's good to see him back today.

Wednesday, October 9

Good Man!

Josh Lyman is revealed as a Mets fan. No wonder the poor guy suffers so much.

It's not the economy

At last, the real reason why law school applications are way up stands revealed.

Off the Beat

After this post, I'm off the Iraq beat, at least for awhile. I've said most of what I have to say on the subject, and we've now seemingly reached a point where what I think, or just about anyone else thinks, matters not a whit—Congress appears ready to pass the use-of-force resolution, and the only dispute that will then matter will be the battle within the administration between Secretary Powell on the one hand and Secretary Rumsfeld and the vice president on the other.

Before I leave the subject, though, I want to clarify a point in my earlier posts on the subject. I have previously described the choice the administration faces as a choice between unilateral action and multilateral action. As several readers have pointed out, that description mischaracterizes the choice, since even if the US acts without Security Council approval it would act with the support of Great Britain, Australia, a few eastern European countries, and a couple of tiny Gulf states. My fault. The choice, more accurately, is one between pursuit of disarmament (which, depending on how Iraq responded, might require regime change) and pursuit of regime change as an end in itself (with disarmament as a side benefit). Secretary Powell seems committed to the former, Secretary Rumsfeld and the vice president to the latter. The president's own position seems to shift back and forth. In the meantime, one of the problems the US faces in attempting to persuade the Security Council to pass a tough new resolution on weapons inspections in Iraq is the perception by other members of the Security Council that the administration is not sincere about inspections or disarmament, and that it is simply seeking cover for its pursuit of regime change.

There's no real question that something needs to be done about Iraq, and in the relatively near future. Questions remain, however, about precisely what, when, and how. Those questions are heightened by a CIA assessment, reported today, that Saddam Hussein is unlikely to use weapons of mass destruction against American targets unless he feels backed to the wall by an imminent or already-initiated American attack on Iraq. If the avoidance of Iraqi attacks on American targets is one of the guiding aims of the administration's approach to Iraq, as the president suggested Monday night, this CIA assessment raises serious questions about whether an invasion of Iraq with the declared purpose of regime change is an appropriate way to achieve the desired ends.

Beyond that, there are both small-picture and big-picture reasons to question what the administration intends. The small-picture reason focuses on the administration's shifting and sometimes dishonest rationales for action against Iraq, a subject I've written about previously and one that gives pause to even the hawkish editors at The New Republic (link requires registration). They write:

As each of these assertions of a Saddam-Al Qaeda connection is challenged, Bush officials respond that we simply have to trust them. Revealing their best evidence, they say, would compromise vital sources. Still, not even those who have seen the evidence seem to agree that it's not very credible. Members of Congress with access to classified briefings, including Senators Joe Biden and Chuck Hagel, say the secret evidence they've seen is no more persuasive than a Rumsfeld press conference. And the cascade of leaks from "senior spooks" countering the White House line shows how strongly CIA officials feel their intelligence is being mischaracterized. The Bush administration's unconvincing arguments about an Iraq-Al Qaeda tie only convince skeptics that this White House will offer any rationale for war.

The big-picture reason for questioning where the administration is going relates to how action against Iraq might tie into the administration's larger foreign policy vision, one that seems to see America bestriding the globe as a supreme, beneficent colossus. That vision, benign as it may seem on its face, presents some troubling questions, and indeed is truly puzzling for an administration that presents itself as the champion of conservative values. As Hendrik Herzberg writes in this week's New Yorker, in language that strikes me as only slightly overblown:

The vision laid out in the Bush document is a vision of what used to be called, when we believed it to be the Soviet ambition, world domination. It's a vision of a world in which it is American policy to prevent the emergence of any rival power, whatever it stands for—a world policed and controlled by American military might. This goes much further than the notion of America as the policeman of the world. It's the notion of America as both the policeman and the legislator of the world, and it's where the Bush vision goes seriously, even chillingly, wrong. A police force had better be embedded in and guided by a structure of law and consent. There's a name for the kind of regime in which the cops rule, answering only to themselves. It's called a police state.

The Bush doctrine's answer to this objection is essentially this: Hey, we're the good guys. People—especially people who share our values, like the citizens of democratic Europe, but everybody else, too—should embrace American hegemony, because surely they know that we would use our great power only for good things, like advancing democracy, keeping powerful weapons out of the hands of terrorists, and facilitating peaceful commerce. And so we have done, most of the time; and so no doubt we would do, most of the time. But what a naïve view of power and human nature! What ever became of the conservative suspicion of untrammelled power, the conservative insight that good intentions are not, are never, enough? Where is the conservative belief in limited government, in checks and balances? Burke spins in his grave. Madison and Hamilton torque it up, too. Are we now to assume that Americans are exempt from fallen human nature? That we stand outside history? It's as if the Bush authors' brains had been softened by an overdose of anti-"moral equivalency" vaccine. Conservatives used to fault liberals (often unfairly, but never mind) for thinking that there was no such thing as evil, that the Soviets (and the criminals, and the terrorists) were just put upon and misunderstood. Conservatives spend a lot of time congratulating themselves on their "moral clarity." The Soviet Union was an evil empire; Osama is evil; the axis of evil is evil. Nothing more need be said, nothing more need be understood. And if the other side is absolutely evil then we must be absolutely good, so it's fine for us to be absolutely powerful. We should be neither surprised nor indignant if our friends in Europe and elsewhere don't see things in quite the same way.

That's it for now on Iraq—I'm tired of banging my head against that particular wall. But I'm sure that I'll return to the topic at some point. Here's hoping that when I do, the news is good.

(Link to the Hertzberg essay via Electrolite).

Tuesday, October 8

Bud at the Metrodome

Apologies to Angels fans Matt Welch and the folks at In Arguendo, but I'm rooting hard for the Minnesota Twins in the American League Championship Series. Why? Because Bud Selig, who watched tonight's series-opening game from the safety of Twins' owner Carl Pohlad's luxury suite, says that if the Twins advance to the World Series he'll watch a game from a seat near the field, in full public view. The thought of the evil Selig submitting himself to the righteous wrath of Twins fans is too delicious to resist.


Stuart Buck, with whom I disagree on almost all matters political and legal, but who is a sharp and thought-provoking commentator, has an interesting post on the brilliance of J.S. Bach's Goldberg Variations, in which he aptly describes the remarkable combination of technical brilliance and aesthetic beauty that Bach created.

I have just enough musical talent, formal musical training, and mathematical ability to feel, when I listen to Bach, like I am catching a faint, reflected glimpse of the infinite. That a human composer could accomplish what Bach did is mind-boggling.

The Shootings

Tim Dunlop, an Australian living in Montgomery County, Maryland, is carefully tracking news of the shootings that have occurred in the D.C. area over the last several days. The five shootings last Thursday were all within three miles of his home. And while Avedon Carol currently resides in the UK, the shootings hit close to home for her as well.

Etiquette Advice

A suggestion to any law students who may read this: if you encounter one of your professors at a social gathering hosted by another professor, the proper response is not: "Prof. Cooper, what are you doing here?"

I was actually highly amused. But I think I may also have found a potential victim for tomorrow's discussion of Pennoyer v. Neff.

Monday, October 7

Wine of the Week
d'Arenberg The Custodian Grenache 1994

D'Arenberg is a family owned winery that dates back to the early decades of last century; the wines carry quaint, antiquated names like The Footbolt (a shiraz), the High Trellis (a cabernet sauvignon), The Dead Arm (another shiraz, this one very expensive), and the Ironstone Pressings (a Rhone-style blend). The Custodian is d'Arenberg's grenache, made from ancient vines—some of them nearly 120 years old. Although d'Arenberg's vineyards have included grenache vines since before the Osborn family bought the property in 1913, 1994 marked the first bottling of The Custodian.

For a first effort, this is very strong indeed. Brilliant ruby in color, the wine has characteristic grenache aromas of black pepper, provencal herbs, smoked meat, and red fruits, along with a note that I can only describe as playdough. Plum and black cherry fruit dominate the flavors, which also feature some of the herbal notes found in the aroma. Tannin emerges on the midpalate, but it is well balanced by the concentrated fruit. The wine has great mouthfeel, a long finish, and sufficient acidity to pair well with tomato-based dishes. It's delicious now, but I'm confident that it would keep and improve for several more years. D'Arenberg is a fairly small producer, but for some reason its wines are readily available in my local wineshop. I'll be looking to restock as soon as I can.


Devra M. has written the definitive political blog post. There's nothing left to be said, really.

First Monday Update

Dahlia Lithwick has the important statistics from today's opening Supreme Court session:

  • First question of the term was asked by Justice John Paul Stevens;
  • The second question of the term was also asked by Justice John Paul Stevens;
  • The amount of time elapsed before Justice Antonin Scalia started to verbally thump the hell out of appellate counsel in a case: 16 minutes;
  • The amount of time elapsed before Justices Stephen Breyer and Clarence Thomas started whispering between themselves: 18 minutes;
  • Supreme Court justice who appears most changed since last term: Justice Breyer—with new eyeglasses that make him look like a rock star;
  • Supreme Court justice least changed since last term: That would be a tie among all the eight other justices who look exactly as they did last April, with the exception of Justice Ruth Bader Ginsburg, who might be wearing a new hair ribbon.

Ms. Lithwick also summarizes the oral argument in Ford Motor Co. v. McCauley, which, as many expected, focused more on the question of whether the Ninth Circuit (and therefore also the Supreme Court) lacked appellate jurisdiction than on the more interesting (really, it is!) question of how to calculate the amount in controversy in class actions where injunctive relief is sought.

Happy First Monday

The first Monday in October marks the beginning of the Supreme Court's term. Previews of this week's arguments can be found at SCOTUSBlog and Sam Heldman's Ignatz. As a Civil Procedure professor, I have a particular interest in one of today's cases, Ford Motor Co. v. McCauley, which addresses how to calculate the amount in controversy in a diversity case where injunctive relief is sought. A quick summary: under the federal diversity statute, lawsuits between citizens of different states may be brought in federal court (the basic notion being that state courts might exhibit bias against out-of-state litigants in suits involving citizens of the forum state), as long as the amount in controversy exceeds $75,000 (the theory being that, in cases in which federal law is not involved, access to the federal courts should be reserved for cases in which the stakes are high). Where damages are sought, it's usually pretty easy to tell if the case involves claims for more than $75,000. But it's harder to determine where the relief sought is an injunction (an order either to do something or to refrain from doing something) rather than money damages.

McCauley involves the decision of Ford and Citibank, in 1997, to terminate an arrangement in which credit card holders could earn rebates of up to $700 per year over five years, usable toward the purchase of Ford automobiles. A bunch of card holders sued, claiming that Ford and Citibank had withheld pertinent information about the nature and duration of the program. Because the maximum rebate any one cardholder could get was $3,500, the amount in controversy requirement was not, and could not be, met based on money damages alone (in cases like this, plaintiffs are not allowed to add their separate claims together to reach $75,000). But the plaintiffs also sought an injunction that would require Ford and Citibank to reopen the program. Again, the most that an injunction would be worth to each plaintiff could not exceed $3,500, let alone $75,000. But it was argued that the cost to Ford and Citibank of complying with an injunction would exceed $75,000. The district court and the Ninth Circuit both concluded that the cost to Ford and Citibank did not bring the case within the federal courts' jurisdiction, and now the case is before the Supreme Court.

Sam Heldman says that the case is boring. But it is perfectly timed for me, as—by pure coincidence—we spent part of today's class talking about the amount in controversy requirement. I tried to persuade the class that the issues raised in McCauley are fascinating. I don't think I succeeded, though. Sigh.

Sunday, October 6

Wine of the Week Delay

I'll have notes on the wine of the week (a delicious Australian Grenache) tomorrow.

Persuasion, Distortions, Exaggerations, and Lies

My post on Monday, in which I argued that it was not un-American to question the president's apparent plan for unilateral action against Iraq, generated a fair bit of commentary, both on other blogs and by email. One email in particular, by Richard Aubrey, deserves comment ( I feel free to identify Mr. Aubrey by name because he repeated many of his arguments, expressly directed toward my post, in comments at Dave Trowbridge's Redwood Dragon). Aubrey wrote:

You're wrong.

Quick and many others do not insist on unthinking agreement with the president. You say that as if you believe that's what he and others want, but I suspect you actually know better.

It happens that the president believes what Quick and others believe, which they think is brilliant of him.

As to whether the Daschle & Co. tactics are unpatriotic: Of course they are. The issue is not whether they can do things which are very likely to get a good many of us killed and still claim to be patriotic. The question is whether they care. There is no evidence they do.

There can be disagreement, but honest disagreement needs to look honest. Theirs does not. It has no basic solution to any problem but Democratic legislative power. . . .

Aubrey expanded on his argument in response to a post by Dave Trowbridge:

Cooper says a person can be patriotic without blindly parroting the president's views. In fact, many of us are glad the president is parroting our views. Cooper doesn't give those with whom he disagrees any credit for independent thinking. It is only the superior folks like himself who have two brain cells to rub together.

The fact is that if the president and we who think the president is pretty smart for doing things more or less our way are right, disagreeing is not patriotic. And disagreeing for the sake of being in the always-sainted minority regardless of facts is not at all patriotic, but self-indulgent.

At one level, Aubrey misunderstands me. I recognize the possibility that people of goodwill, analyzing the available evidence, might believe that unilateral action against Iraq is appropriate. In other words, I do not contend that only unthinking people could possibly support the president. Misguided as I might think those people are, I recognize that different people process information, even the same information, through different internal filters, the result of a lifetime's worth of differences in experience. From my own perspective, based on my own upbringing, education, and experiences, I conclude (based on information presently available to me) that the administration's course of action is ill-considered. Thus, for me to advocate unilateral action against Iraq, despite my better judgment, would require unthinking agreement with the president.

Aubrey denies the possibility that my views are honestly held. If he's right, he says, then disagreement is unpatriotic (not to mention self-indulgent). But here's the point: I don't know that he's right. The quality of the information that is available to members of the general public is always incomplete, especially on matters that relate to national security. We are thus left in a position where we have to decide what information is trustworthy and what is not.

Which leads to the second point of disagreement between Aubrey and myself: whether, and to what extent, the Bush administration has engaged in exaggerations, distortions, misdirections, and outright lies in its attempt to build public support for action against Iraq. I'll readily concede that some of the Democrats' actions—in particular, the now-abandoned notion that debate on Iraq should be put off until after the fall elections—have had an unpleasant political odor (and the decision of Reps. Bonior and McDermott to criticize the president from Baghdad was downright stupid). But honest debate requires honesty on both sides, and there's been little of that from the administration.

In my post last Monday, I focused on one instance of dishonesty in particular. In early September, the president stated that, according to a 1998 report by the International Atomic Energy Agency, Iraq was within six months of developing nuclear weapons. A spokesperson for the IEAE denied that any such report existed. When asked for clarification, a White House spokesperson said that the report was from 1991, not 1998. Again, the IEAE denied that it had issued such a report. As Dave Trowbridge wrote at his site:

The White House had two chances to get it right. They didn't. Bush's statement could be a simple error, or careless briefing. The press secretary's statement is either a lie, or wanton stupidity, or a lack of concern for the truth.

Aubrey finds this example of an administration untruth unconvincing. He argues that the underlying information is accurate, and that the failure to identify the source correctly is trivial. In his comments to Dave's post, he states first that the information came from Jane's, then from an unnamed British think tank; finally, he asserts that the statement came from Vice President Cheney, who relied on unnamed intelligence sources. Nowhere does Aubrey provide a link, to a statement by the vice president or to any other source.

If the statement were true, and if it referred to the present status of Iraq's weapons program rather than to what may or may not have been the case before Desert Storm, it would go a long way toward justifying a preemptive strike of the type that Israel undertook in 1981. But the administration has not yet provided evidence that would warrant such a conclusion. And, as the entity seeking to initiate the use of military force, the burden is certainly on the administration to provide the evidence.

Aubrey also suggests that this example is the only instance of a lie told by the administration in support of unilateral action against Iraq. But the administration's case has been rife with exaggerations, distortions, half-truths, and untruths. Here are but a few examples:*

- The administration goes back and forth on whether September 11 hijacker Mohammed Atta met with an Iraqi intelligence officer in Prague in April 2001. It advanced the argument in August, despite the fact that the FBI had determined that Atta was in Virginia Beach at the time of the supposed meeting.

- In mid-August, Secretary of Defense Rumsfeld argued that the presence of Al Qaeda personnel within Iraq showed Saddam Hussein's support of the group. A week later, Deputy Secretary of State Richard Armitage acknowledged that the Al Qaeda members in question were in Kurd-controlled parts of the country, beyond Hussein's reach.

- The administration pointed to Iraq's attempts to import aluminum tubes as evidence of Iraq's efforts to build nuclear weapons. The tubes, the administration contended, were meant to be used in centrifuges in the production of enriched uranium. A recent report by the Institute for Science and International Security contested the administration's conclusion, asserting that the tubes in question were not appropriate for centrifuges. The report also asserted that the administration was trying to silence government experts on nuclear technology who disagreed with the administration's position.

- The original draft resolution on the use of force that the administration submitted to Congress asserted, as one justification for acting against Iraq, "the high risk that the current Iraqi regime will either employ those weapons to launch a surprise attack against the United States or its Armed Forces or provide them to international terrorists who would do so." To which journalist Josh Marshall responded:

Maybe the Iraqis would give WMD to terrorists. Maybe. But does anybody really think Saddam is going to launch a surprise attack against the United States?

It turns out that one White House correspondent also found that line questionable and asked an administration official about it. The administration official—who was well-placed and in a position to know—told the reporter that the resolution's original language was much more specific and made clear that the reference was to US interests in the Middle East or military installations in the region. However, late in the process of drafting the resolution that wording got swapped out in exchange for the current, more dramatic language.

The implication from the administration official seemed to be that of course everyone knows that Iraq isn't going to launch a surprise attack against the US but, you know, read between the lines, etc.

These examples all seem to have a kernal of truth to them. But in each case the administration has exaggerated the significance of the available data and used the exaggeration to push hard for action that the data arguably does not support. When this happens again and again, there is reason to question the administration's fundamental honesty on the important question of whether war is justified. There is, after all, something of a tradition in this country (one embracing both parties) of fabricating justifications for military action. In 1964, the Johnson administration trumpeted two unprovoked attacks by North Vietamese forces against an American naval vessel—the first of which was almost certainly provoked and the second of which never occurred—as justification for the Gulf of Tonkin resolution. In 1990, the first Bush administration, in an effort to build support for what became Desert Storm, disseminated stories that Iraqi troops in Kuwait had removed babies from incubators and left them to die, a story that was later revealed to be a lie.

And while the Democrats have been criticized, sometime properly, for politicizing the debate over Iraq, there is plenty of reason to believe that the Bush administration is doing the same. Back in January, presidential advisor Karl Rove told an RNC gathering that Republicans should use war as a political issue in the fall campaign. And in September, White House Chief of Staff Andrew Card explained the timing of the administration's push for action against Iraq by saying, "from a marketing point of view, you don't introduce new products in August."

There is, in other words, plenty of reason to question the truthfulness of the administration's case as well as its motive for advancing the case at this time. My opposition to the administration's approach to Iraq is not based on partisanship pure and simple. It is not based on reveling in being in a political minority, sainted or not. It is based on a sincere belief that the administration's course of conduct will ultimately damage important American interests, even if the invasion of Iraq is quickly successful. Mr. Aubrey believes that I am wrong. I will grant him the sincerity of his belief; I wish that he would grant me the sincerity of mine.

More broadly, I wish that Mr. Aubrey, and others like him, would acknowledge the possibility of error, or at least the possibility that reasonable people might have honest disagreements. In my civil procedure class, I teach about a procedural device called summary judgment. When, after discovery, a party believes that its case is far stronger than the other party's case, the party will ask the court to enter a summary judgment, which the court will do if, on review of all the evidence, it is convinced that no reasonable jury could possibly find for the opposing party. In making this decision, the judge doesn't simply decide how the judge would decide the case if she were a juror. Rather, to enter a summary judgment, the judge has to be convinced that even if a jury decided to give the opposing party every reasonable benefit of the doubt, it still could not possibly find for that party. The judge, in other words, has to recognize and take seriously the possibility that, even though she is inclined to view the case in a particular way, other reasonable people, reviewing the same evidence, might come to a different conclusion. Every year, there are a few people in the class who simply cannot take seriously the notion that someone could disagree with them and still be a reasonable person. By all appearances, Mr. Aubrey would fit in well with those few unfortunates.

* Many of these examples are compiled at Bushwatch. While I generally stay away from the *watch sites, which tend to be too far over the top for my tastes, the examples compiled here are all drawn from reports in the mainstream media.