Saturday, February 01, 2003

Pollyanna's Guide to World Politics

Tim Dunlop blogs an approving link to a piece by an American blogger styling himself MyDD, who in turn posts a photo of (now) US Defense Secretary Donald Rumsfeld meeting with Saddam Hussein back in 1983 (during the Iran-Iraq war). Now, part of the thrust of MyDD's piece was to suggest (not unreasonably) that CNN appeared to have edited a story to reduce any embarrassment factor for Rumsfeld. The other message, however (which Tim apparently also endorses) is the suggestion that there was something inherently sinister about Rumsfeld meeting with Saddam (and that it's relevant to the current situation of contemplated military action against Iraq). MyDD says:
"Here's the photo of Rumsfeld shaking hands with Saddam Hussein. And recall, this is after Saddam had used biological weapons against Iranians, the Kurds, and other Iraqi's."

For a start, that's just not correct. First, both sides used chemical weapons against each other during the Iran-Iraq war, although Iraq almost certainly made more extensive use of them. However, I'm not sure that there had been extensive use of WOMD as early as 1983 (here's an excellent account of the course of the war for reference purposes). Certainly, and contrary to what MyDD says, as far as I know, neither chemical nor biological weapons had been used against the Kurds in 1983. As we know from Tim's own blog as recently as yesterday, the Halabja incident didn't happen until 1988. Moreover, it involved chemical weapons (either mustard gas, sarin, tabun or VX), not biological ones. I don't claim to be a font of encyclopedic knowledge on the Iran-Iraq war, but I haven't previously heard it claimed that Saddam used biological weapons at all against the Kurds. According to this chronology, Iraq didn't begin developing a biological weapons capability until 1985, although it first used a chemical weapon (mustard gas) against Iranian forces in August 1983 (about 4 months before the photographed meeting between Saddam and Rumsfeld). Finally, although Iraq undeniably developed biological weapons starting in 1985, I haven't heard it suggested that it ever actually used them during the Iran-Iraq war (although there are unconfirmed claims that they were used during the 1991 Gulf War). Some on the Left seem to have no qualms about switching almost instantaneously between exaggerating and minimising the extent of Saddam's misdeeds, depending on which stance happens to assist their argument.

However, the more important point to make about MyDD's Rumsfeld slag (and Tim's approving linkage of it) is this one made by a contributor to MyDD's comment box:
"So What? Times change as do the situations. This is so stupid. We worked with Noriega in Panama before he went wacko. And with the Afghani’s when they were fighting the Russians. We work with those people who have an enemy in common with us, when we need to. This meeting was before Saddam attacked Kuwait. You try to make something out of nothing for some pathetic attempt to smear a good man for your sick political agenda. Our State Department Heads need to meet with all kinds of foreign leaders, even the ones who are not such good people. Now the situation is completely different."

I agree. Realistically, liberal democratic nations like the US have little choice but to make occasional expedient alliances with some fairly smelly regimes. If they confined themselves to alliances with other liberal democracies which respect human rights, they wouldn't have too many alliances outside Europe (in 1983 anyway - things have improved considerably in South America since then, and in parts of Asia). Geo-political decisions, like decisions in just about every sphere of human endeavour, more often than not involve choosing between a range of very imperfect alternatives. A leader who waited for a perfect alternative would be condemning himself to permanent supine impotence. Doing nothing is in itself a positive choice. Where choosing to do nothing has probable consequences worse than those involved with taking positive action (however imperfect), inaction can hardly be reasonably regarded as the preferable choice. Lefties frequently scoff at 'realpolitik': I have to confess I've done it myself. However, the reality is that leadership in the real world necessarily requires hard choices involving shades of grey. The really hard bit is maintaining a reasonably clear vision of where to draw the line to avoid undermining fundamental principles that may destroy the very values you're fighting to preserve. You can mount a plausible argument that US foreign policy has crossed that line rather more frequently than one might have liked, but it's easy to be wise in hindsight.

We need to keep in mind the context of Rumsfeld's meeting with Saddam in 1983. The Ayatollah was at his peak of lunacy in Iran, and the Teheran hostage crisis was still very fresh in mind. Moreover, 241 American marines had recently been murdered by a terrorist bomb in Beirut (as Rumsfeld observed to CNN). The Soviet Union and communism generally remained a very real threat, with the USSR still occupying Afghanistan, and US-backed mujihadeen rebels (including Osama Bin Laden) actively trying to dislodge them. American policy throughout the Cold War involved forging expedient alliances with anti-communist regimes, including some pretty odious ones. Although that policy had some very unfortunate and unintended consequences (not least the creation of the Taliban and the training of Bin Laden), it was ultimately successful in achieving its primary aim of the overthrow of communism.

The US forged an expedient alliance with Saddam in the 1980s not only as a bulwark against communism, but also as a counter to the threat of extremist militant Islam represented by Khomeini's Iran. Saddam was (and remains) a secular strong-man of the Middle East, so the choice was understandable, even though we can now see it was ill-judged. One can reasonably criticise the US for being far too slow to wake up to the fact that it had made a bad choice of ally and to cut Saddam adrift. In fact, they didn't do so until after Iraq invaded Kuwait, leading to well-justified expressions of alarm from Israel and all Iraq's Arab neighbours. However, that slowness doesn't provide any logical basis for the Left's standard argument (usually by way of tacit assumption - as with MyDD's post and Tim's approval of it) that America's previous expedient alliance with Iraq somehow disqualifies it from taking action now. Better late than never.

Space shuttle burns

My God! The US space shuttle Columbia has burned up on re-entry, killing all 7 astronauts on board. What can you say? Glenn Reynolds (Instapundit) is covering it, as is Steven Den Beste. Google News is probably your best bet for the latest mainstream coverage. In the ozplogosphere, Scott Wickstein and Matthew Bates have posted some preliminary thoughts.

Friday, January 31, 2003

Sue the bastards!

Quite often, media stories claiming an explosion of civil litigation are self-interested beat-ups, frequently inspired by insurance companies keen on persuading governments to legislate exclusions of liability so they can boost their profits. However, sometimes they unarguably have a good point. Here are a couple of recent mainstream media stories extracted by American legal weblog
"Disturbed, Angelo Delgrande shot and wounded his parents and himself in a June 1995 dispute. He then received surgery at a Westchester County, N.Y. hospital. That night, he yanked the tubes and monitoring devices from his body, then leapt off the second story of an adjacent parking garage in a suicide bid. He is now paraplegic. Delgrande sued the hospital for failing to treat his depression and keep him indoors. Last October, he won $9 million."
"A woman who says she was attacked by a 3-foot-tall goose is suing Palm Beach County, claiming the county should not have allowed the bird to roam in a public park." Darlene Griffin, 30, says she was attacked on Feb. 5 in Okeeheelee Park. The county contends that it has no duty to protect parkgoers from "obvious" dangers."

Fortunately, although Australian law was arguably heading in America's litigation-happy direction, at least prior to the recent Ipp and Neaves reports recommending substantial tort law reform, a case like that of Ms Griffin probably wouldn't succeed here. The leading Australian case is the High Court's 1998 decision in Romeo v Conservation Commission of the Northern Territory, where it was held (rather like the US county authority apparently contends in the Griffin Goose case) that a public authority has no duty of care to guard against obvious dangers. The facts in Romeo involved a 16 year old girl who got very drunk one evening by chugging a substantial part of a bottle of Bundaberg Rum at a beachfront park in Darwin, and then proceeded to stagger over a cliff which she knew was there and which was fenced (though not very well). She became paraplegic as a result.

On the other hand, there is the notorious Swain case, where an inebriated man won $3.75 million in damages from Waverley Council in Sydney after he dived into surf at Bondi Beach between the flags, hit his head on a sandbar and became a quadriplegic! I see that the appeal in Swain was argued just before Christmas (on 18 December). Arguing that the Court of Appeal should not order the case to be reheard before a fresh jury because Swain would now have no chance of success (given the prejudicial publicity about what a bad joke the verdict was), Swain's counsel Paul Menzies QC said his client had been "led to catastrophe" by the council's surf life saving flags. Menzies' submissions appear to have conveniently ignored the fact that swimming flags are always, and necessarily, placed adjacent to a (relatively shallow) sandbank. Any surf beach consists of sandbanks and deep channels. Waves mostly break onto the sandbank, and the water drains out to sea via the channels (forming rip currents in the process). The result of positioning swimming flags anywhere other than on a sandbank would be that many swimmers would be swept out to sea in the rips and drown!

Perhaps ominously for Mr Swain, one of the Court of Appeal judges hearing his case was Justice Ipp, who not long ago recommended to the federal government that tort law be reformed to restrict plaintiffs from pursuing actions like this one.

Beads and trinkets

If you judged only by the content of public debate in Australia, you would be convinced it's beyond argument that this country's contemporary record on land rights and Aboriginal self-determination compares very unfavourably with similar nations having indigenous minorities. The United States, for instance. Moreover, you'd probably be absolutely convinced that things have become much worse since the Howard government came to power.

Compare this article by Graeme Neate (president of Australia's National Native Title Tribunal) with this one by US academic Jacob Levy, about a breaking scandal involving the US federal government's Individual Indian Money (IIM) trust fund, and see if you still hold the same opinion when you're finished. Levy's opening remarks will give you some idea:
"In its dollar magnitude, it's almost certainly the biggest case of financial mismanagement in U.S. history. While a final tally is years away, in part because of suspiciously lost or missing documents, there's good reason to think that the dollar figures will dwarf WorldCom's $9 billion. It's a scandal that crosses partisan lines and reaches into high levels of both the Clinton and the Bush administrations."

Levy's article also briefly documents the history of American misdeeds with Indian lands following the conclusion of treaties during the 19th century. It isn't a pretty picture. I'm not making this comparison to foster complacency or self-congratulation among Australians, just suggesting that the reconciliation debate could do with a bit of perspective and proportion.

All about oil?

Gummo Trotsky has just posted what appears to be the first of a series of blogs analysing whether military action in Iraq fits the definition of a "just war". It isn't too hard to work out where he's going, but it should be interesting to watch how he gets there.

Tim Dunlop notes claims that Saddam didn't really gas his own Kurdish population back in 1988 (which obviously suits the leftie anti-war case). In fact, so the claims go, it was probably the Iranians. To his credit, Tim has updated his post to link an excellent analysis by Glen Rangwala, drawn to Tim's attention by a contributor to his comment box, which appears to completely debunk such assertions. I have to confess that I lack the technical expertise to evaluate some of Rangwala's assertions, but the case he makes certainly sounds convincing. At least until someone points to credible material throwing doubt on Rangwala's points, I think we can safely conclude that Saddam did gas the Kurds.

Finally, Rob Schaap (and by the way, welcome back from holidays, Rob) says, in the comment box to my most recent blog on Iraq: "The White House is bent on a PNAC-inspired grab, not just to enrich its constituents, but to use its control of oil to keep the rest of the first world in its place. They said they'd do it, and they're doing it. " Of course, it's the stock standard leftie "it's all about oil" propaganda line, but it provides a useful springboard for a rant of my own.

Frankly, despite the fact that I've come to a pro-military action position, I don't disagree with the proposition that considerations having to do with Iraq's vast oil reserves are a part of US strategic thinking; it would be surprising if that weren't the case. As I've suggested recently, just about any government decision involves multiple motivations, or at least multiple considerations. Arguments that one factor is dominant over others are usually just displays of the protagonists' own political orientations. Incidentally, the same point disposes of Gummo's very interesting "just war" musings.

John Howard and others have attempted to debunk the "it's all about oil" line by pointing out that Bush could easily secure cheaper, assured oil supplies by doing a deal with Saddam for removal of sanctions. While that's probably true, it's also just as simplistic and misleading as the "it's all about oil" line he seeks to refute. Saddam would remain a wily customer who continued to play both ends against the middle, and would certainly continue to see advantage in playing cartel ball with OPEC to keep overall oil supplies sufficiently restricted as to maintain prices at a respectable level. By comparison, a more compliant client regime installed following US-led military action might well be amenable to opening the taps and forcing prices down to below $20 a barrel again, where many in the US would like them.

On a more micro level, it might well be that the US hopes that, in the long term, a more friendly client regime might be more favourably disposed to granting a greater proportion of new oil-related contracts to American companies. In the short term that's unlikely, because French and Russian companies seem to have things fairly well tied up, and their governments will certainly continue to threaten use of their UNSC veto powers to extract a US promise of honouring those contracts.

However, all this is merely one factor (albeit a significant one) among many involved in a decision to pursue the military option in Iraq. Saddam's longstanding and undiminished determination to acquire a major WOMD capacity, and to use it to achieve quasi-imperial domination in the world's most strategic region, is a far more important factor (but then, as I observed above, perhaps I'm just portraying my own political orientations). Similarly, and whether it's Bush's dominant motivation or merely an incidental benefit, the fact that military action will get rid of a particularly odious regime which oppresses and murders its own people in large numbers (and sponsors terrorism, albeit not by Al Qaeda), should not be underestimated or dismissed as irrelevant (as Rob Schaap and most others on the Left tend to do).

Postscript - I suspect Gummo is heading towards pretty much the same place Hugh Mackay has already reached in a single glib and utterly fatuous op-ed column in today's SMH and Age. Not that I'm suggesting Gummo's reasoning will be fatuous; Gummo runs rings around poor old Hugh in the brain-cell stakes - which isn't actually saying very much, mind you. On the other hand, Hugh has parlayed soft-left waffle into a very lucrative career, so he's certainly not silly from a material standpoint. Professor Bunyip puts it much more elegantly (if vitriolically) than I could ever manage. But I suppose Me No No will just write this off as another bad faith attempt to curry academic favour.

Postscript 2 - I note that, despite the fact that all the main left-ish bloggers (except Rob Corr) have posted in my comment boxes in the last 24 hours, not one of them has so far made any attempt to grapple with the principal substantive argument I've been advancing since I began posting on Iraq a couple of days ago. Just to remind you, that argument is that military intervention in Iraq is justified because the only viable alternative is long-term maintenance of weapons inspections and a supporting blockade, and that inevitably leads to ever-escalating anti-western bitterness in the Muslim world, and ultimately to Al Qaeda, Bali and September 11. I'm sure it's not a completely unanswerable argument, but a response is certainly required IMO.

Lawyers stalking Harry Potter

The Evening Standard has a very strange story involving the latest Harry Potter movie:
"Dobby, the computer-animated elf in the new Harry Potter film, could be at the centre of a court battle over his resemblance to Russian president Vladimir Putin.

A Russian law firm is reportedly drawing up legal action against the special effects people who dreamt up Dobby, arguing that the ugly but caring elf has been modelled on Mr Putin.

The Kremlin and Warner Bros, producer of Harry Potter And The Chamber Of Secrets, have declined to comment but the controversy has stirred emotions in Russia."

Yale University's Lawmeme has some brief observations about it here.

Tim Takes Talent To Ten

I can't think of anything wise or even sensible to say about the Waterfall rail disaster, so I think I'll just leave the families of the dead to mourn and wait for answers. A not quite as depressing story (but still pretty bad for Darwin sports fans) is that Tim Lane, the King of sports broadcasters, is leaving the ABC after 30 years to commentate AFL on the Ten TV network. Bruce McAvaney isn't fit to shine Tim's shoes, and the less said about Eddie McGuire the better.

The reason I said it wasn't good news for Darwin fans is that we don't get Channel 10 on free to air TV - only 7, 9, ABC and SBS. However, at least Tim was given a proper send-off by the ABC. There's a laudatory article on ABC Online, and I listened to a long, excellent career retrospective interview between Tim and a panel of local Darwin ABC radio sports staff earlier this afternoon. What a contrast with Packer's Nine network, where any employee who dares to defect is instantly and unceremoniously frog-marched out the door like a common criminal.

One thing that carping right-wing critics like Uncle at ABC Watch have never acknowledged (so far as I can recall) is the ABC's extraordinary role in fostering and developing Australia's broadcast media talent, not only sports journalists but also current affairs and children's TV. All three commercial TV networks are crowded with talent carefully nurtured and developed at public expense by the ABC. If it was ever abolished, as many conservatives seem to wish, then Packer, Murdoch and Stokes would actually have to spend their own money on developing local talent. Maybe that's why you never hear them joining the Tories' almost Pavlovian "kick the ABC" bandwaggon.

Update - I see Tony the Teacher has a much more jaundiced view of Tim Lane. It must be the shock of having all those little mongrels back at school after 6 weeks holiday. I said in a comment box earlier today, it'd be a boring world if we all had the same tastes. However, in this case there's no room for argument. Tony's just plain wrong, and he should pull his head in.

Thursday, January 30, 2003

Reprising Iraq argument

In my essay yesterday, I put up what I think is a reasonably logical reason which justifies military action in Iraq. Surprisingly (to me anyway) it hasn't attracted any discussion at all. Comment box debate got sidetracked by an interesting (but ultimately pointless) discussion about whether America had experienced war in the 20th century.

My principal argument is that regime-changing war is the only available alternative to a long-term weapons inspection regime and military blockade, which is the only other way to stop Saddam re-instituting a WOMD program. In turn, it's the presence of western forces on "holy" muslim ground which gave rise to Al Qaeda, and ultimately to September 11. Decisive military action would put an early end to western blockade and occupation, and remove the principal factor inflaming relations between the Muslim and western worlds.

In fact, with a somewhat different spin, much of the Left actually makes pretty much the same argument, when they assert that the US should examine its foreign policies to find explanations for 9/11. The main foreign policy factors they usually cite are the Gulf War, sanctions against Iraq and America's support of Israel.

The logic of the Left's position should suggest support for military action, as the only obvious way to put an end to sanctions and the oppression of the Iraqi people, but of course they don't see it that way. Instead, the Left usually avoids trying to suggest any viable solution to the Iraq dilemma (John Quiggin is an honourable exception). When you've seized the high moral ground, practicalities are beneath your dignity. Far easier to sit back and criticise the Great Satan whatever it does. The Left's position on Iraq is that of Pontius Pilate writ global.

Mandatory life for murder?

John Quiggin blogged briefly yesterday on issues of crime and punishment. John raised a range of issues that I intend blogging about later; most notably I want to talk about "shaming" strategies as an alternative to imprisonment, at least for less serious crimes.

However, I responded in John's comment box with some observations about mandatory life imprisonment for murder. The Northern Territory's approach to this area is currently under review by the Martin Labor government. Mandatory life imprisonment for murder exists in many (perhaps most) States. However, generally it is possible for the sentencing judge to fix a non-parole period. It's then open to the offender to apply for parole (and re-apply annually if they want) once the non-parole period has expired. In the NT it's different: life means life. The judge has no power to fix a non-parole period, and the offender has no legal capacity to apply for parole at any time. When this system was introduced, defence lawyers argued that it would make it more difficult to obtain murder convictions, because juries would be reluctant to convict in those circumstances. That hasn't proven to be the case.

Despite the absence of any possibility of parole for murderers in the NT, they can apply for release/clemency under the "royal prerogative". That effectively means they can apply to Cabinet, which may "advise" the Administrator (the equivalent of a State Governor) to exercise the prerogative of mercy and release the prisoner. The former CLP government had an announced policy that it would not entertain release applications until at least 20 years after conviction. In fact, no murderer convicted since self-government in 1978 has ever been released from a NT prison.

Personally, I think a system where decisions on release of prisoners are in political hands is extremely undesirable. Unequal justice may result: a government may be less likely to entertain a release application in the typical "Laura Norder" hysteria leading up to an election. Having such decisions made on an informal policy basis rather than pursuant to clear legislative rules is also undesirable, especially where the policy may change depending on which party is in power. This didn't seem like such a problem when it appeared that the CLP was in government in perpetuity, but it now seems likely that the NT will remain like other parts of Australia, with government changing hands periodically.

I favour a regime where life remains life, but murderers have a statutory right to seek release from an independent Parole Board (rather than Cabinet) after a designated period of time. I personally favour that period remaining at 20 years (as under the CLP's informal policy), but I could live with a slightly shorter specified period (say 17 or 18 years). The Parole Board would be expressly required not to permit release unless satisfied beyond reasonable doubt that the offender no longer posed a re-offending risk to the community.

You will note that this system allows no scope for judicial discretion at sentencing of the offender. The omission is quite deliberate. In John Quiggin's comment box, Dave Ricardo posed the question: "What's wrong with abolishing mandatory life sentences for murder? Let the judges exercise some judgement. That is their job." Here is my answer. First, murder is not like other crimes. There are gradations of other crimes, in the sense that you can meaningfully talk about more and less serious rapes or robberies. Murder, however, is different. It only ever has a single result: death of the victim, and grieving and permanent loss for remaining relatives. The fact that there may be differing degrees of violence and terror inflicted prior to death is irrelevant: the victim is no longer around to experience any differing results flowing from it. Nor do differences in the quantity of barbarism prior to death materially affect the grief and suffering of the relatives. Is a few moments of terror and agony a less bad experience for the victim than hours of torture and degradation? Remaining relatives will never know, although they ask themselves those questions again and again.

Criminological research shows that no type of sentence for murder has any measurable deterrent effect, either general or specific, so deterrence simply doesn't enter the argument. The highest incidence of pickpocketing in 18th and 19th century Britain occurred amongst the crowds watching pickpockets being hung.

Rehabilitation is less clear-cut as a factor. It may be that offenders released earlier have a greater prospect of rehabilitation than those who serve longer sentences, although again criminological research doesn't clearly show any such effect. Thus, there is no compelling reason why judges should be given a discretion to impose different non-parole periods on different murderers. I argue that individualised justice is best achieved at the other end of the justice system. Once the offender has served an irreducible minimum (18 or 20 years), a Parole Board must consider on an individualised basis whether the offender merits release. That decision is made on the basis of useful evidence having some probative value (like psychological reports, and the offender's record while in prison), rather than the crystal ball-gazing, wholly speculative nonsense that sentencing judges purport to take into account when fixing a non-parole period 12 or 15 or more years in advance of their decision taking effect.

Finally, the major reason why I strongly oppose allowing judges to set differential non-parole periods in murder cases is that it necessarily further brutalises and traumatises the remaining relatives. Under the NT's current "life means life" regime, a jury verdict of guilty of murder is instantly followed by the judge's imposition of a life sentence, and the prisoner's removal from court to begin serving it. The sense of relief, release and catharsis the victims' relatives experience at that moment is one of the most powerful and positive emotions any person can ever experience. That is when you can begin putting your lives back together, letting go of grief, making sense of the senseless. In States where judges retain a discretion to fix differentiated non-parole periods, that healing effect is drastically reduced. When the jury announces its verdict, the judge usually adjourns the case for argument on sentencing at a later time. For remaining relatives, the tension and uncertainty are extended. Frequently, the defence sentencing submissions then compound the agony, further traumatising and brutalising them. Defence counsel's job is to persuade the judge to impose the lowest possible non-parole period. That necessarily involves putting submissions about the offender's supposed good character (or alternatively his tragic and unhappy life), that the murder was totally out of character, and that it was much less objectively serious than the worst category of murder. A good defence counsel can make it sound like the murderer was the principal victim in the situation! The experience of this process for the real victim's family is quite simply appalling. For this most serious of crimes, I say the offender's actions in deliberately taking another life should result in his interest in individualised justice being subordinated to the interest of the victim's family in being spared the agony and further trauma of self-serving defence submissions aimed (in effect) at minimising the magnitude of the loss they have suffered.

Comments still disappearing

I'm afraid I was over-optimistic. It seems that new comments are still disappearing (although again only some of them). it also seems to be happening to John Quiggin. As John suggests on his blog, if you think your comments are worth preserving (and many are IMHO), you should save them on your hard drive as well as posting them. That way, if they disappear you can repost them later.

Wednesday, January 29, 2003

Tim Blair should lighten up

Tim Blair has posted a piece heaping abuse on some female streaker and Australian Democrats candidate I've never heard of. Apparently her name is Karen Jackson . Tim must be getting old. I mean, Karen's political views are pretty silly, I admit. But her website is pretty cool: lots of nudity and links to free nude young women's webcam sites and so on. I haven't found a photo of Karen on her site yet, so I don't know whether I could be persuaded to vote for her despite her silly policies. At the end of the day, though, a politician who promotes streaking and nudity can't be all bad.

Karen also seems to have been tipped off about Tim's blog story. Her website contains this note:
"Streaking Becomes Major Reason to Bash Lefties
Hello to all you right wing bloggers out there who've ended up at Streakerama because you hate me and all I stand for. Welcome. Have a look around. Enjoy. Please check out the smut page, it will calm you down.
Thought for the day: Running around naked after a few beers beats beating the war drum any day."

This girl has spirit! Then again, we could always run around naked after a few beers and beat the war drum as well. Just a thought.

Comments disappear into cyberspace

Readers may have noticed that this blog has been very slow to load for the last hour or so, and the comments links have not been displayed. It appears that both problems were connected. The Haloscan website was also down until a few minutes ago.

The comments links have now reappeared at the foot of each post, and the comment box seems to be working. However, all existing comments seem to have been lost. AAAAAAGH!!!! I don't understand what has happened. John Quiggin also uses Haloscan, and his comment links disappeared at the same time as mine, but they've now reappeared and all his existing comments seem to be intact. I apologise to all Troppo Armadillo readers who have taken the time to contribute to the comment boxes. Please keep contributing. With a bit of luck it won't happen again in the immediate future, and the existing comments might even re-materialise (although I have my doubts). Maybe it's a blessing in disguise. I'm now determined to re-organise my priorities and shift across to Movable Type ASAP. However, it's still bound to take a week or two until it's up and running, so please keep visiting and commenting here until further notice. It's a bloody shame really, because there were some really interesting comment threads that have now been vaporised.

Update - Actually, it seems that most (though not all) of the existing comments further down the page are still there. It's just the last 6 or 7 posts (today and part of yesterday) where all existing comments have disappeared). I guess it could be worse, but it's still time to move to a MT blog. Both Blogger and the various free commenting facilities are hopelessly unreliable.

Dave Barry blasphemes Tolkien

I have to confess I'd never heard of Dave Barry until I bought voice recognition software 2 or 3 years ago, and discovered that the training routine you have to do to get it to recognise your voice involves reading out loud about 20 pages of Dave's book Dave Barry in Cyberspace. I thought parts of it were pretty funny the first time, but after I reached the fourth re-read because my old PC kept crashing and erasing my voice files, the jokes began to wear a bit thin. As a result, I was never tempted to rush out and buy a Dave Barry book.

Dave, it seems, is an American humorous columnist with the Miami Herald, who frequently recycles his columns into books. This is a not infrequent scam among some columnists, although I can't see Phillip Adams, Janet Albrechtsen or even Tim Blair making huge book sales, and the less said about Hugh Mackay the better. Dave's most recent column takes the piss out of Lord of the Rings Part II. Although I'm an unapologetic LOTR fan, I have to admit the column is pretty funny. Have a read. Dave also now has a blog. I don't regularly read American blogs (except the legal ones), however I might have to make an exception for Dave.

Jason's manifesto

Provoked beyond endurance by continual goading from Ron Mead that he's a leftie in the making, Jason Soon has posted a personal manifesto on his blog. It sets out his position on a wide range of basic and controversial political, economic and social issues. Seems to me it vindicates my assessment of Jason (in the drop down menus) as a centrist (at least by my fairly loose definition - that is a liberal democrat who doesn't take a doctrinaire neo-liberal view that just about all government regulation or intervention is bad).

Moreover, from my limited observations of Jason's belief system over the rather short time I've been blogging (6 months or so), Jason has not noticeably slid towards the left. In fact his belief system seems to me to be quite logically consistent (at least as much as most people). Ron seems to think that you can't really be a liberal unless you hold conservative social views as well as market-oriented economic beliefs, and that any degree of belief in the possible efficacy of government action disqualifies you from any claim to liberalism.

Incidentally, although I would qualify some of Jason's points in various relatively minor ways, my own views mostly coincide with his, except that I think maybe small tax rises might be desirable to fund areas like health, education, public housing and pure research and development at adequate levels. Jason seems to think that cutting out middle class welfare would do the trick. Make of it what you will.

War creeps closer

This article in the Wall Street Journal (link courtesy Patrick) strikes me as being very significant. Its authors are Jose María Aznar, Jose-Manuel Durão Barroso, Silvio Berlusconi, Tony Blair, Vaclav Havel, Peter Medgyessy, Leszek Miller and Anders Fogh Rasmussen, who are respectively the prime ministers of Spain, Portugal, Italy, the U.K., Hungary, Poland and Denmark. Mr. Havel is the Czech president. They all express complete solidarity with President Bush and echo his stance by saying that "We are confident that the Security Council will face up to its responsibilities."

According to this article on The Voice of America:
"The U.N. Security Council has ended a day of closed-door talks on extending the inspection process in Iraq, with 11 of the 15 Council member states saying they favor giving inspectors more time.

France, Russia and China, three permanent council members with veto power, along with Germany, Mexico, Chile, Guinea, Cameroon, Syria, Angola and Pakistan, all supported extending the U.N. inspections.

Bulgaria and Spain backed the United States and Britain, which argue that Iraq has failed to disarm and must be made to do so.

On February fifth, U.S. Secretary of State Colin Powell is set to give the Security Council the latest U.S. intelligence information on Iraq. It is expected to show that Iraq is still hiding banned weapons of mass destruction. Mr. Powell is due to present information linking Iraq to terrorist groups

In Washington Wednesday, White House spokesman Ari Fleischer said diplomacy on Iraq is in its final phase."

With Russia indicating a tentatively pro-military action stance, it now appears very likely that the UNSC will vote to approve military action in the near future. Dr Blix is due to report again to the UNSC on 15 February. Depending on the impact Colin Powell makes on 5 February, I would expect the UNSC to pass a resolution authorising miltary action shortly after Blix's next report, well within the preferred US military action timetable. Given that Arab states have also been pushing for an option allowing Saddam Hussein to go into safe exile if he agrees to go quietly, the following sentence in the Voice of America report is also significant:
"Secretary of State Colin Powell said the United States will help find a haven for Iraqi leader Saddam Hussein and his top aides if the Iraqi leader agrees to go into exile."

Hopefully Saddam will take up the offer of sanctuary, resulting in a "best case" outcome without any bloodshed.

It's Time

Federal ALP leader Simon Crean's response to US President George W. Bush's State of the Union address was to ask rhetorically: "I mean, if they've got new information, first of all, why wasn't it presented to Hans Blix and the United Nations and the weapons inspectors, so it could be included in the report that was handed down yesterday?"

Several bloggers (e.g. Bargarz) have suggested one possible reason: the UNMOVIC inspection effort is hopelessly compromised, with French and other "moles" tipping off the Iraqis before a particular site is inspected. It may well be that the Bush administration has concluded that providing WOMD materials stash locations is tantamount to sending the information straight to Saddam so he can hide them somewhere better. Whether that is true or not, it is certainly clear that UNMOVIC is unlikely to achieve smashing success, not because Saddam doesn't still have a large stash of WOMD, but because he's become so adept at playing games of deception. As Bush observed in his S of U address:
"The dictator of Iraq is not disarming. To the contrary, he is deceiving. From intelligence sources, we know, for instance, that thousands of Iraqi security personnel are at work hiding documents and materials from the UN inspectors sanitizing inspection sites, and monitoring the inspectors themselves. Iraqi officials accompany the inspectors in order to intimidate witnesses. Iraq is blocking U-2 surveillance flights requested by the United Nations. Iraqi intelligence officers are posing as the scientists inspectors are supposed to interview. Real scientists have been coached by Iraqi officials on what to say. And intelligence sources indicate that Saddam Hussein has ordered that scientists who cooperate with UN inspectors in disarming Iraq will be killed, along with their families."

In any event, Bush outlined the information he argues justifies military action, although not (except in one case) the sources of intelligence on which it is based:
"The United Nations concluded in 1999 that Saddam Hussein had biological weapons materials sufficient to produce over 25,000 liters of anthrax enough doses to kill several million people. He has not accounted for that material. He has given no evidence that he has destroyed it.

The United Nations concluded that Saddam Hussein had materials sufficient to produce more than 38,000 liters of botulinum toxin enough to subject millions of people to death by respiratory failure. He has not accounted for that material. He has given no evidence that he has destroyed it.

Our intelligence officials estimate that Saddam Hussein had the materials to produce as much as 500 tons of sarin, mustard, and VX nerve agent. In such quantities, these chemical agents also could kill untold thousands. He has not accounted for these materials. He has given no evidence that he has destroyed them.

U.S. intelligence indicates that Saddam Hussein had upwards of 30,000 munitions capable of delivering chemical agents. Inspectors recently turned up 16 of them, despite Iraq s recent declaration denying their existence. Saddam Hussein has not accounted for the remaining 29,984 of these prohibited munitions. He has given no evidence that he has destroyed them.

From three Iraqi defectors we know that Iraq, in the late 1990s, had several mobile biological weapons labs. These are designed to produce germ warfare agents, and can be moved from place to place to evade inspectors. Saddam Hussein has not disclosed these facilities. He has given no evidence that he has destroyed them."

Much of this information is not, of course, secret in any event. It derives from verified UNSCOM findings of WOMD materials uncovered but not destroyed at the time the inspectors were ejected by Saddam in late 1998. If you believe that Saddam has maganimously destroyed these materials in the 5 years no-one was watching him, but somehow forgot to record the details or mention them in his 12,000 word declaration to the Security Council, then you believe in fairies at the bottom of the garden.

Saddam manifestly still has a formidable WOMD capability; has demonstrated a steely (if duplicitous) determination to retain and expand it for more than a decade now, in the face of world demands that he disarm; and shown a remarkable capacity to hide weapons capability despite intensive surveillance and inspection. Moreover, he is a leader with a proven track record of attacking and invading neighbouring countries and butchering and terrorising his own people. He clearly harbours ambitions of imperial domination of the Arab world if and when he obtains nuclear capability, which he has demonstrated he remains determined to do.

What are the alternatives to decisive military action? First, the UN could decide to proceed with the current round of weapons inspections, and turn it into a UNSCOM-style operation, destroying all weapons located over a period of years. Having regard to Saddam's long record of deceit and hiding of weapons capabilities, we could never be confident that everything had been found, even when that process was complete. At the very least, Saddam and his scientists will certainly still retain the knowledge to re-institute biological, chemical and nuclear weapons programs as soon as the inspectors leave and the UN blockade is lifted. It is literally impossible to locate every piece of paper, floppy disk, hard drive, zip drive, and CD in Iraq that might contain detailed information allowing WOMD programs to be re-commissioned rapidly. There is already incontrovertible evidence that Saddam has organised a large scale operation to hide documents and computer records. Saddam Hussein with nuclear weapons doesn't bear contemplation.

Of course, in theory, Saddam's ability to re-institute WOMD programs could be contained (as it has been between 1991 and now) by having weapons inspectors remain in Iraq more or less permanently, supported (as they would need to be) by an ongoing permanent naval and military blockade involving ships in the Persian Gulf and nearby areas, and troops on the ground in Saudi Arabia. Yet it is this very western military and inspection presence that has been the central, vital spur (along with the Israel - Palestinian conflict) to the creation of Al Qaeda, and the spiralling growth of bitter division and hatred between the Muslim and western worlds. In a very real way, both September 11 and Bali were a direct result of the ongoing necessity to have western troops and inspectors on the ground in "holy" Muslim territory, in the absence of decisive military action against Saddam.

It's time to stop the hand-wringing and take decisive miltary action to get rid of Saddam. War is horrible, and there will certainly be many deaths even on a best case scenario. But the available alternatives are even worse.
World Social Forum

I just saw on SBS News (though I can't find the story on their website) that the greenies have been holding a "World Social Forum" in Brazil, to compete with the World Economic Forum in Davos. The Forum was addressed by great thinkers including Noam Chomsky, actor Danny Glover and Che Guevara's daughter. Delegates had no trouble agreeing that they opposed war in Iraq, global free trade and genetically modified foods.

I can't understand why this vitally important world event has been virtually ignored by Australia's media (except SBS). Surely at least the Sydney Morning Herald could have been expected to appreciate the Forum's relevance. I can only assume Margo must have been temporarily overcome by the stench of stale urine fumes from her bog. I only hope she at least flushes it after a Number 2, otherwise the methane build-up could lead to a nasty accident when she lights up one of those rollies she's just started smoking. I wish Bunyip hadn't drawn Margo's personal habits to our attention.There are some things it's better not to know.

Update - I underestimated the ABC. It has just reported that World Social Forum participants have been demonstrating against attempts by the great Satan USA to stop poor Bolivian farmers from cultivating the coca leaf for cocaine production. Apparently this is an example of US imperialist neo-liberal dominance. Where will Dubbya's infamies end?

Tuesday, January 28, 2003

More global warming humbug

You know the greenies' propaganda is effective when the insurance industry starts jumping on the global warming bandwaggon. An article by Tony Coleman, chief risk officer and group actuary of Insurance Australia Group, in today's Australian, peddles all the usual grossly inaccurate and exaggerated global warming propaganda lines so beloved of green spokespeople . Of course, cynics might suggest that Coleman's pitch is not entirely unrelated to attempts to justify the insurance industry's huge increase in premiums over the last couple of years: if they can make us all feel guilty by persuading us that it's our own faults for not making John Howard ratify the Kyoto Protocol, maybe it won't occur to us that the insurers are ripping us off.

I can't be bothered going through the whole litany of misinformation in Coleman's article. Just one example will do. Coleman, along with greenies like Bob Brown, suggests that global warming might be causing the current bushfires:
"Scientists believe this global warming trend is driving climate change and could be causing new and increasingly unpredictable weather patterns and events.

The earth's climate is far too complex for global warming and resulting climate change to ever be identified as the cause of disasters such as a specific fire, storm, or flood.

But the consensus of the world's top climate change scientists, working with the UN-convened Inter-Governmental Panel on Climate Change, is we are likely to experience more frequent and intense extreme weather events in the future."

Is this actually true? Well, er, no. Chapter 2.7.4 (Summary) of the IPCC's latest report says:
"There is little sign of long-term changes in tropical storm intensity and frequency, but inter-decadal variations are pronounced. Owing to incomplete data and relatively few analyses, we are uncertain as to whether there has been any large-scale, long-term increase in the Northern Hemisphere extra-tropical cyclone intensity and frequency though some, sometimes strong, multi-decadal variations and recent increases were identified in several regions. Limited evidence exists for a decrease in cyclone frequency in the Southern Hemisphere since the early 1970s, but there has been a paucity of analyses and data. Recent analyses of changes in severe local weather (tornadoes, thunder days, lightning and hail) in a few selected regions provide no compelling evidence for widespread systematic long-term changes."

Chapter 9, dealing with future projections of weather and extreme weather events, also provides no basis for Coleman's alarmist assertion of a scientific "consensus" that extreme weather events wil lincrease. See especially Chapter .

However, why let the facts spoil a good scare story? In fact, a fair summary of the current state of scientific knowledge (according to the official IPCC reports) is:
(1) There is no evidence of an increase in extreme weather events to date;
(2) Computer models do not in general predict any long-term net increase in extreme weather events;
(3) In fact if anything the reverse is the case. The computer models predict that the effect of global warming (to the extent it occurs) will be that most warming will occur at high latitudes, at night and in winter. This will decrease the temperature differential between equatorial and polar regions, thus decreasing global thermal circulations and, probably, reducing extreme weather events. This reduced thermal circulation is one reason why at least some climate scientists suggest an outside possibility that global warming might paradoxically trigger the early onset of the next ice age.
(4) Global warming will cause the earth, in net terms, to become warmer and wetter (not drier).
(5) Thus, in aggregate, rainfall will increase, and drought and bushfire conditions will decrease, not the reverse. Nevertheless, it is likely that rainfall effects will be unevenly distributed. Some regions will become much wetter, while some may even become slightly drier. However, computer models are incapable of predicting this with any precision, and scientists do not claim that they can.

On balance, therefore, the current drought and bushfires in Australia almost certainly have no connection at all with global warming. They are caused by 2 large El Nino events occurring slightly closer together than normal. You wouldn't learn any of the above facts from reading the mainstream media, Greenpeace propaganda etc, even though these are the clear findings of official IPCC research to date. Makes you wonder why it is Bjorn Lomborg being accused of "scientific dishonesty", doesn't it?

Postscript - A very slight qualification to the above. There is one passage in Chapter of IPCC Report 1 concerning non-tropical storms which shoud be noted for completeness:
"An analysis of an ensemble of four future climate change experiments using a global coupled model with increased CO2 and sulphate aerosols showed an increase in the number of deep low pressure systems in Northern Hemisphere winter, while the number of weaker storms was reduced".

Otherwise, the effect of the IPCC Report is exactly as summarised above i.e. almost exactly the opposite impression you would get from reading green propaganda and the work of lazy mainstream journos who never bother to check the research for themselves.
Suing Google

Lawmeme has an interesting story about a commercial "linkfarm" outfit in the US which sells web services to clients, involving linking lots of sites to each other in order to boost their Google PageRank (Google's technology assigns ranking to search results on the basis of how many other sites have linked to them - which is one reason why even quite obscure blogs often achieve considerable prominence in Google's search engine - linking other blogs is central to blogging).

The Linkfarm outfit ("SearchKing Network") has commenced proceedings against Google, claiming that it illegally interfered with SearchKing's business by reducing the PageRank of SearchKing's clients after Google discovered its artificial attempts to make a buck out of subverting Google's ranking algorithm.

Unfortunately for SearchKing (but fortunately for users who rely on Google producing authentically relevant results), it looks like Google probably has a lay-down misere defence based on First Amendment freedom of speech.
Gianna's new blog

Gianna (surname blank) has begun a blog probably called She Sells Sanctuary (although there's no title at the top of the page - maybe she accidentally deleted one of the Blogger template tags). From memory, Gianna has been a fairly frequent contributor to Tim Dunlop's comment boxes. Moreover, I suspect she was inspired to begin blogging by Tim's excellent recent piece Letters to a new blogger. Well done, Sir Tim (he was also the one who recruited yours truly to the blogosphere, so now you know who to blame).

BTW Tim, when can we expect the second Letter to a New Blogger?
Watersheds drain on the blogosphere

It must be something to do with the drought (or maybe global warming), but two ozploggers from opposite sides of the ideological divide have separately come up with "watershed" theories to explain current political phenomena (albeit on totally different subjects).

John Quiggin claims that the 1970s were a watershed for "progressive" politics: up until then the world was steadily "progressing" towards a democratic socialist paradise, but then history was hijacked by the evil neo-liberals, whose policies (John thinks) can only be characterised as "reactionary" or "conservative" (never progressive). Apparently socialists have a mortgage on progress. I comment further (not favourably, as you may have gathered) in John's comment box.

Professor Bunyip also nominates the 1970s as a "watershed". He hypothesises that until then US "realpolitik" alliances and interventions tended to have unfortunate consequences (like creating bloodthirsty, tyrannical client states arguably worse than the leftist regimes that might otherwise have prevailed). After that time, however (according to the Professor) the US got its act together, and its foreign interventions thereafter had largely benign or neutral effects (and sometimes even benign motives). Bunyip skates over a few situations that don't really help his theory: Nicaragua and Panama, for instance, not to mention ongoing uncritical sponsorship of Israel notwithstanding its treatment of Palestinians. Nevertheless, Bunyip has a point: the US does mostly pursue policies aimed at fostering the development of liberal democratic states, albeit that it still frequently forges expedient alliances with some very obnoxious regimes (Saudi Arabia and Pakistan, for instance). Bunyip's argument, though oversold, is a useful counterweight to the kneejerk "Great Satan" nonsense habitually peddled by much of the Left.

Update - John Quiggin's point was a bit more subtle than I gave him credit for (although I still disagree). Go and read his comment box, and add your own thoughts.
McMillan on refugee law

ANU legal academic John McMillan has an excellent paper on refugee and immigration law on the Samuel Griffith Society website. It takes a fairly conservative stance; a refreshing antidote to some of the more extreme nonsense from the refugee lobby in the mainstream media. I agree with most of McMillan's points.

McMillan's paper is well worth reading (as are all the 2001 conference papers, which have just been posted at the SGC site). Mind you, the papers are very right wing almost without exception, and include a vacuous but entertaining diatribe from Piers Akerman and a typically ideologically-blinkered paper from that great favourite of the leftie blogosphere Janet Albrechtsen.

Come to think of it, it's rather a pity that the Samuel Griffith Society has become so thoroughly a creature of the Hard Right. The Society's ostensible raison d'etre is to foster the federalist ideal against the march of centralism. While that is certainly a common obsession of conservatives, federalism isn't inherently an exclusively Tory preserve. In fact, it's one of the more important components of Lockean liberal democratic constitutionalism. The Society's capture by the Right tends to detract from the potential it might otherwise have to galvanise support for federalism from those of a somewhat more progressive liberal persuasion (like moi, for instance).
Gary goes to MT

Philosophical blogger Gary Sauer-Thompson has made the big move away from Blogger to a Movable Type blog. Check it out. Apparently Gary effected the big MT move with the assistance of that techno white knight of the blogosphere Bailz. Incidentally, Bailz has offered to give me similar help when I eventually bite the bullet and get a MT blog. In case Bailz (or Gareth Parker, who's also kindly offered similar assistance) is wondering why I'm dragging my feet, it's because I'm intending to co-locate my MT blog with the Victims of Crime website. I still have quite a bit of work to do on the V of C site, and I'm not likely to get time to finish it at least for the next few weeks. Hence I decided that a (probably temporary) move back to Blogger was better than just not blogging at all for that length of time.

Incidentally, I see Gary S-T has blogged on that perennial electoral harlot Laura Norder, with particular reference to mandatory sentencing (which the Libs' John Brogden is apparently threatening to introduce in New South Wales if elected). It's a topic on which there's lots to say: I can feel a blog coming on. But probably not today.
American lawyers argue over abortion

As I mentioned a couple of days ago, American constitutional law academic Jack Balkin has been musing on his blog about what might happen to Roe v Wade (the Supreme Court's decision holding that a woman's right to abortion is constitutionally protected) if/when President Bush appoints ultra-conservatives to replace two Justices who are soon to retire.

Another US legal blogger, Matt Evans, puts the contrary position, and does so very powerfully IMHO. Evans seems to be something of a Christian fundamentalist (which is a long way from my own orientation), but his argument strikes me as rather more intellectually solid than Balkin's. Like many "critical legal studies" scholars (the US po-mo lawyer clique - there is no Australian equivalent), Balkin often seems to use legal reasoning as little more than a flimsy pretext to bolster his personal political prejudices. Of course, that's what CLS/po-mo advocates argue all lawyers do; it's just (so they think) that they themselves are more honest about it. Evans' response to Balkin's abortion musings demonstrates the intellectual bankruptcy of such an approach.
Jeff to the rescue

In an item posted yesterday, I expressed puzzlement at an apparent contradiction between US Supreme Court Justice Scalia's advocacy of an originalist approach to constitutional interpretation, but a textualist approach (essentially a sophisticated version of literalism) to interpreting ordinary legislation. I expressed the hope (rather lazily I confess) that a reader more knowledgeable than me about US law might come to the rescue in the comment box. Fortunately US academic lawyer and fellow blogger Jeff Cooper did so. He pointed me to a long essay by Justice Scalia in a book titled A Matter of Interpretation. It also includes commentary on Scalia's approach to interpretation by other legal luminaries including Ronald Dworkin. Here is a useful summary of Scalia's approach in a review from the Princeton Law Journal.

Essentially, Scalia in fact takes the same approach to interpreting the US Constitution as he does to ordinary legislation. The approach is to search for the objective original meaning of the text, rather than the subjective intentions of its enactors. The search is for the meaning the text would have had when read by an ordinary educated person at the time of enactment. Scalia's interpretive philosophy is almost indistinguishable from the predominant interpretive approach of Australia's High Court when interpreting the Constitution.

For post-modernists (or indeed those familiar with Wittgenstein or just about any other philosopher of the last 150 years or so) this may seem a bizarre and meaningless conceit: language doesn't have a single "objectively" determinable meaning, and can't be understood divorced from context. As I've mentioned previously on this blog, Justice McHugh acknowledges quite frankly that the search for objective original meaning is patently a fiction, but argues (quoting Samuel Popkin):
"The simple act of thinking about the meaning of statutory language in this broader context - which the judge must do - requires judgment about how the text should interact with its past and future. That is why, despite its being an obvious fiction, the judge when engaged in statutory interpretation is unable to do without the concept of legislative intent. Intent is matched with text as an essential aspect of statutory meaning, not because the judge has any confidence that legislative intent is knowable, but because 'intent' (or 'will') captures the idea that choices must be made in order to apply a text to facts. Legislative intent is a useful judicial construct because the judge is required to make the choices that best express the statutory text's meaning."

An originalist approach may be seen as reasonably persuasive when interpreting a constitution. Australia's Constitution, like its US counterpart, was drafted by delegates at a series of conventions. It was the product of a committee process, not a single guiding mind, and it will frequently be impossible to isolate any individual or group whose intentions were clearly determinative.

The application of that sort of fictionalised approach to determining the meaning of ordinary contemporary legislation (as opposed to a constitution) is much more democratically problematic. The intentions of the enactors more often than not will be fairly clearly known. They are elected by the people while judges are not. Nevertheless, Scalia argues (as summarized in the Princeton Law Journal article linked above):
"Scalia rejects the use of legislative history - floor debates, committee reports, and committee testimony preceding the enactment of a piece of legislation - as a tool for interpreting laws. ...

Ironically, says Justice Scalia, the use of legislative history arose as a backlash to freewheeling use of "legislative intent" as a cover for novel (mis)interpretations of laws from the bench. By attempting to ascertain what the legislature actually did intend, lawyers hoped to preclude the falsification of "intent" by judges. Now, however, says Scalia, the use of legislative history has grown so widespread that the old joke, "One should consult the text of the statute only when the legislative history is ambiguous" is no longer funny; one brief he read began its argument with a discussion of legislative history and then continued: "Unfortunately, the legislative debates are not helpful. Therefore, we turn to the other guidepost in this difficult area, statutory language."

Scalia rejects legislative history because he does not feel it helps to resolve ambiguities in the law. "On balance, [legislative history] has facilitated rather than deterred decisions that are based upon the courts’ policy preferences, rather than neutral principles of law." Almost any judge can find something in the legislative history to support the interpretation he personally wants to give to a law."

Scalia's argument may have a certain force in the American constitutional system, where the legislative and executive arms of government are entirely separate, and where political party discipline is nowhere near as rigid as in Australia. In the US, the executive government effectively loses control of legislation once it enters Congress, and it may well emerge amended into a quite different shape than it started out (even when, as now, the President's party controls both Houses). As with a constitution, ordinary American legislation may often not be the product of a single guiding mind, so that some form of search for objectified intention may make sense.

The Australian context is quite different. Here, Ministers are Members of Parliament, and virtually all Bills are products of the executive government and are carefully shepherded through the Parliament by the responsible Minister. Even in the Senate, which the government rarely controls, the Minister, or a Senate ministerial colleague representing the Minister in the Senate, will handle the committee stages of the debate where the Bill is examined and amended clause by clause. Where the Minister accepts amendments, the reason for it (that is, the statutory purpose or intent) will generally be made very clear.

In a system like that, ignoring the actual intentions of the parliament (and the executive government that guides its deliberations), in favour of a fictionalised search for "objective" intent, begins to look a lot like overt judicial defiance of the will of the peoples' elected representatives. That is certainly how former Chief Justice Garfield Barwick's employment of a textualist approach to interpreting ordinary legislation (most notably taxation legislation) was perceived. That perception led directly to the enactment of sections 15AA and 15AB of the Acts Interpretation Act. They expressly oblige judges to give effect to Parliament's actual intentions rather than the judge's fictional conception of "objective" intent derived in oracular fashion from the tea-leaves of the text with the aid of mysterious Latin incantations like expressio unius est exclusio alterius. That isn't to say that traditional textual interpretation has no place in Australian law, simply that actual legislative intent takes precedence where it is evident (as it usually will be, whatever the situation may be in the US).

Monday, January 27, 2003

Bloke-ism is contagious

The Professor seems to have succumbed to rampant unreconstructed misogyny. Here at The Parish ... (oops Troppo Armadillo), we stoop only to puerile giggling about vaginas. One has to maintain standards, after all.
What does it all mean?

The Volokh Conspiracy notes a US Supreme Court decision handed down today (FCC v Nextwave Personal Communications) which features an interesting debate between Justices Scalia and Breyer over textualist versus intentionalist approaches to statutory interpretation. Strangely, Justice Scalia, who is the arch-intentionalist on the Supreme Court Bench when it comes to interpreting the US Constitution, adopts a classical textualist approach (essentially a literal and legalistic approach to determining meaning) to interpreting ordinary statute law.

I have to confess I haven't read Justice Scalia sufficiently closely to be able to explain how he rationalises these apparently inconsistent approaches. Hopefully a reader more familiar with Scalia's thought and the US Supreme Court generally might help out in the comment box. Scalia (in the majority) observes in his usual trenchant style:
"The dissent finds it 'dangerous . . . to rely exclusively upon the literal meaning of a statute's words,' post, at 2 (opinion of BREYER, J.). Instead, it determines, in splendid isolation from that language, the purpose of the statute, which it takes to be 'to forbid discrimination against those who are, or were, in bankruptcy and, more generally, to prohibit governmental action that would undercut the 'fresh start' that is bankruptcy's promise,' post, at 4. It deduces these language-trumping 'purposes' from the most inconclusive of indications."
In Australia, this sort of judicial debate no longer occurs (at least at such a fundamental level). The Federal Parliament amended the Acts Interpretation Act in the early 1980s by including sections 15AA and 15AB, which provide respectively that courts must interpret legislation in accordance with the purpose or object for which it was enacted, and that in determining that purpose(s) they should have regard to extrinsic aids to interpretation like Hansard, Parliamentary Committee and Law Reform Commission reports, and the like.

Just about every State and Territory has enacted similar provisions governing interpretation of legislation at that level as well. Accordingly, in this country it's really only in relation to interpretation of the Commonwealth Constitution (and State constitutions) that there remains any real scope for judicial debate about whether strict literalism or the enactors' (Founding Fathers') intentions should strictly govern interpretation of meaning.

Yes, I know it's a dry subject, but I thought at least someone might be interested.
Father and Son

Another new-ish Australian political blogger ventures into the wilds of cyberspace. Michael Darby describes himself in the following terms:
"Observations on politics and poetry by Australian bush poet, Michael Darby. Michael was born in Sydney in 1945 and is a former Australian Army Officer who has been writing and broadcasting on politics and economics since 1972."

What really caught my interest about Michael, however, is that he's the son of Douglas Darby, long-time local State MLA for Manly (on Sydney's northern beaches) where I grew up. Doug Darby was the Member for Manly for a remarkable 35 years, from 1943 until 1978. He was a (very) right-wing Liberal member for most of that time, but was re-elected twice as an Independent in the early 70s after the Libs dumped him in an effort to introduce new blood into the Parliamentary Party. Darby was a hard-working local Member.

Douglas Darby was also a genuine eccentric and a staunch anti-communist; in some ways a Protestant State-level version of B.A Santamaria. One of Darby's many passionate interests was his sponsorship and development of cricket in Taiwan. He also advocated a missionary approach to teaching cricket to the mainland Chinese and Soviet Russians. Chaps who played cricket, Darby believed, could never be communists! If Michael Darby is even half as eccentric as his father, his blog should make entertaining reading.

I vaguely recall that Michael Darby stood unsuccessfully for his father's seat of Manly after Douglas's retirement in 1978, but I might be mistaken. Unfortunately for Michael, Manly's demographics have veered gradually towards the soft left over the last 20 years or so. It's become a sort of northern beaches version of Balmain, full of latte-drinking yuppies. Manly returned a Labor member for a short time during the 1980s, and left-leaning general medical practitioner Peter McDonald was the local Member through most of the 90s. The current local Member is another soft left-ish Independent named David Barr, who seems a nice enough chap, though rather ineffectual. The main result of a decade or so of Independent representation for Manly appears to have been that both Liberal and Labor State governments have felt free to foist massive over-development on the area despite resident protests, and to ignore almost completely the northern beaches' transport and infrastructure needs.
Quiggin on Windschuttle

John Quiggin has published the most compelling general audience critique I have read of Keith Windschuttle's controversial book The Fabrication of Aboriginal History. You can read it here on the Evatt Foundation website.

John observes that: "Windschuttle has presented a polemical defence of an extreme position, ignoring or downplaying evidence that contradicts his case for the defence of British settlers in Australia". In that sense, I guess he performs a function in the public debate not unlike that of Bjorn Lomborg in relation to environmentalism. Both go over the top in promoting 'corrective' viewpoints to prevailing leftist orthodoxy in their respective chosen fields. Moreover, as John pointed out correctly in relation to Lomborg, they purport to debunk positions that the more careful 'leftist' theoreticians don't actually espouse. Henry Reynolds, for example, emerges relatively unscathed from Windschuttle's book (contrary to impressions created by some mainstream media coverage). The same can't be said for Lyndall Ryan, at least so far.

However, just as Lomborg was aiming his attack at populist propaganda machines like Greenpeace, which habitually make extreme alarmist claims that simply can't be sustained, so Windschuttle's attack has much greater force against some of the more extreme claims of the Aboriginal guilt industry than against the cautious academic types at whom his book is ostensibly aimed. That is ultimately what makes Windschuttle's book much less defensible than Lomborg's The Skeptical Environmentalist. Lomborg's book is unabashedly a work of populist polemic (despite John Quiggin's unconvincing attempts to portray it as dishonestly masquerading as a detached scholarly work because of its extensive use of footnotes). Windschuttle's book, on the other hand, does purport to be a work of original scholarly research, when in fact it's nothing of the sort.

Finally, I was also struck by John Quiggin's concluding paragraph:
"I am always puzzled by the ease with which some people can repudiate their own past views while maintaining a dogmatic conviction of the infallible correctness of their current beliefs. Keith Windschuttle is, regrettably, an extreme instance of this phenomenon."

It occurred to me that I might be accused by some of making a similar lurch to the right in relation to asylum seeker policy. As recently as 1995 I was accused by then Keating Labor government Immigration Minister Nick Bolkus (along with Melbourne University legal academic Pene Mathew) of "emotive bleating" in favour of asylum seekers. As regular readers of this blog will realise, my current position could hardly be characterised in that way. However, I'd like to think my more hardline sceptical position in relation to onshore asylum seekers arose from careful evaluation of the evidence rather than the sort of bad faith lurch to the right of which John Quiggin accuses Windschuttle. Moreover, I'm certainly not convinced of the 'infallible correctness' of my own beliefs. When you expose yourself to the public scrutiny of the blogosphere, you tend to get proven wrong too often to be able to maintain self-delusions of infallibility. Maybe Keith Windschuttle should start a blog. I won't hold my breath waiting.

Sunday, January 26, 2003


The other day I somehow found myself listening to Triple J while driving to somewhere or other. I suspect my daughter must have tuned the car radio there; Triple J usually isn't my first listening choice. However, they played a rap song that was really very funny, if utterly obscene and grossly sexist. I couldn't help thinking of Jason Soon and the undergraduate erotic poetry he occasionally blogs.

This song, however, was more hard core porn than soft erotica. It's called "Cock Mobster" by DJ Paul Barman. I guess it's a pun on the old B52s hit "Rock Lobster". I'm sure younger bloggers are familiar with it, but the song sure was a shock to this boring old fart. Some of the lyrics and rhymes were, however, quite ingenious and screamingly funny IMHO. The chorus, for instance, begins "It's a porn utopia, A cornucopia of warm fallopia". You get the picture. Here's a link to a promotional page where you can access the lyrics and download an MP3 version.

It carried me back to the increasingly distant days of my youth, when I once lived in a share house with a group of American exchange students. One of them was a very well-endowed young blonde girl from Oregon State University. Apparently their football team is called The Beavers. My housemate (I can't remember her name now, but I can picture her as clearly as if it were yesterday) had been a member of the team's cheerleaders. She was in the habit of wandering around the house clad only in a pair of knickers and the cheerleader T-shirt, which was emblazoned with the motto "Bet you can't lick our Beavers!". It was a challenge I never had the chance to surmount, not least because her boyfriend was also a housemate.

Postscript - It occurs to me that the more poetically inclined might want to have a go at composing additional lines or verses to "Cock Mobster", and posting them in the comment box. However, we probably should leave out Jack Nicholson's co-star in "As Good as It Gets". Her name, of course, was Helen Hunt.

Jack Balkin is a law academic at Yale University. His area of specialisation is constitutional law, which is why I'm pleased to see he's recently joined the blogosphere. His blog is called, appropriately enough, Balkinization. Balkin's political orientation is left-liberal Democrat, and his predilections lie in a post-modernist direction (though lacking much of the balance and humour of practitioners of that black art such as Don Arthur).

However, don't consign Balkin's blog to your "never to be visited" list just yet. He's a good writer, and his blog contains some interesting stuff. Balkin muses, for instance, about the prospects for Roe v Wade (the US Supreme Court decision holding that the right to abortion is constitutionally protected) if, as expected, Prsident Dubbya appoints arch-conservatives to replace two Justices about to retire from the Court.

Balkin also blogs at length about anti-discrimination laws, affirmative action and "color-blindness". However, perhaps his most bizarre piece involves consulting the I Ching about the prospects for any US invasion of Iraq! Balkin's communing with the great Chinese oracle leads (surprise! surprise!) to his concluding that invading Iraq would be a very bad idea.

My old mate Ray Marshall (now sadly deceased), a journo and occasional TV and screen actor, once wrote the astrology column for one of Sydney's major daily newspapers. He used to reckon he wrote his best horoscopes after three quarters of a bottle of scotch: you needed to be creative, Ray said. I don't know whether Lao Tzu had the benefit of rice wine when penning the I Ching; in fact I don't even know what hallucinogen Jack Balkin was on when he blogged his silly piece on Iraq. Balkin says:
"There is one lesson we might draw. The theme of this hexagram is the need for reform and for returning to the right path after a long period of strife and confusion. We may be looking at this crisis the wrong way. For the President and most of his advisors, the issue is simple: Saddam is a threat, or may soon become one. We need to strike at him preemptively, whether with our friends or standing alone. Too much is at stake not to act.

However, it may be that attacking Saddam directly is not the best way to disarm him or get rid of him. We do not yet understand everything that is going on in this situation, and we may be confused about what is in our best interests and the world’s. If we wait a bit longer, we may build a case that isolates Saddam in the world community and makes our unilateral action unnecessary. The great military strategist Sun Tzu once said that the greatest general is one who never has to go to war. Such a general arranges his alliances and shapes the terrain of battle so effectively that his foes dare not attack him, but instead act according to his wishes because they have no better strategic alternative."

Sun Tzu would undoubtedly be very popular with UN Security Council members like France right now. Personally I prefer General Colin Powell's view:
"Containment [of Saddam] is not the issue. The issue is disarmament. Contain him until what? Circumstances arrive in the future when he could pop out of containment? We did containment. And I didn't have any problem with containment. You know, that containment would eventually solve the problem. It hasn't. The problem is still there."

John Quiggin apparently favours a "messy compromise" to military action. Fair enough, except the measures John suggests would provide no solution at all, messy or otherwise. U2 spyplanes are useful in monitoring suspicious activity, but they're a long way from foolproof. The only reliable way to prevent a wily and determined WOMD-acquirer like Saddam from getting nuclear weapons would be a long-term intensive weapons inspection team presence, backed by a credible threat of force. It's extremely unlikely that other UN nations would agree to such a long-term abrogation of Iraq's national sovereignty. A short, sharp, regime-changing military action looks like a better bet to me.

Trouble is, I suspect John and Kevin Batcho are right: it would be very unwise to assume that Tony Blair will ultimately be able to get Labour Cabinet agreement for Britain to participate in a non-UN authorised military operation. Quite a few American commentators (and bloggers) don't seem to understand that Blair doesn't have presidential executive powers: he's entirely subject to the will of Cabinet. If the UK doesn't participate in a "coalition of the willing", it remains to be seen whether Bush would proceed with just a handful of uncritical allies like Australia. Personally I hope he does. It might just result in the implementation of Arab nations' plans to offer Saddam and his senior henchmen safe exile as a way to avoid an American-led invasion. That outcome looks like the best endgame to me. If,as I suspect, Saddam is a rational (if brutal) despot, he might just accept that solution once he can see that there's no way out.
Another shot in the culture wars

Gary Sauer-Thompson and his guest blogger historian Cathie Clements have written at length recently about the so-called "culture wars", with particular reference to Keith Windschuttle's recently published book. Another shot in the culture wars was fired in this morning's Australian by Jonathan King. He eloquently defends the restoration of a more traditional approach to teaching children history:
"Today, many NSW students, who must do 100 mandatory hours, rarely hear about navigators such as Flinders, who charted and named Australia. They rarely hear about Burke and Wills, the first explorers to cross the continent. And they rarely hear about the gold rushes that transformed colonies, the fight for Federation, surviving the Depression, Gallipoli, and the heroic Australian efforts in the Somme, Tobruk, El Alamein, Kokoda, Korea and Vietnam.

Not surprisingly, students' ignorance of our history is becoming so appalling that one school leaver thought Gallipoli was a surfing beach in Queensland; another thought it was where we defeated Hitler. Few even know when, how or why their continent was set tled.

By sweeping mainstream history under the carpet, teachers have produced crops of empty-headed young people who don't know much about the nation's achievements. Australian history has been taught in such a negative way that young Australians also grow up feeling ashamed to be Australian."

No doubt PM John Howard would heartily endorse King's sentiments. However, even for those who habitually denigrate Howard, that doesn't make King wrong about this. As a parent of an almost 15 year old in Year 10 at high school (and a high achieving student at that) I can certainly attest to the abysmal ignorance of young Australians about quite basic aspects of our history.

However, King doesn't advocate air-brushing Australia's history (which is undoubtedly what occurred until consciousness about the invasive, dispossessive, violent aspects of Australia's history was raised by people like Henry Reynolds from the early 1970s):
"Of course, let's include shameful chapters in our past - no one can deny the tragedy of the Aboriginal experience; but it does not help to inflict guilt on our children with an apologist history. After all, we do have much to be proud of. Avoiding politically loaded words such as genocide, teachers should teach - not preach - what actually happened, not what should have happened, in plain English. They should present historic figures as people of their time - not judged with 2003 attitudes.

Having established different cultural perspectives, teachers should explain inevitable clashes, dispossession and destruction of the traditional Aboriginal way of life (not least through disease) as a terrible price of settlement rather than the objective of settlement. Tell stories from both sides but confirm Australia had more good news events than bad.

I won't even attempt to strike a Don Arthur-like inscrutable stance. I agree with Jonathan King.
A law degree and a short back and sides

No less than 8 other bloggers, not to mention a motley assortment of readers, have taken the opportunity of emailing me (in varying tones of glee) about this article by right wing op-ed pundit Paddy McGuinness, in which he took aim at Canberra's supposedly pampered public servants, and also hit Darwin and its university in the cross-fire:
"But it was filled up with Canberra carpetbaggers and a useless collection of white-collar workers, and provided with a form of self-government which guaranteed incompetent administration. It even led to the creation of a so-called university which has never been much more than a jumped-up hairdressing college, and which is once again in crisis."

I'll post a longer rant about regional universities in the near future, but in the meantime I'll just observe that I'm not taking chardonnay-sipping Leichhardt denizen Paddy too seriously. McGuinness has overdosed on neo-liberal dogma to such an extent that he probably goes to bed mouthing a variation on Orwell's Animal Farm mantra: "Private good, public bad".

Anyway, the new NTU Vice-Chancellor has been musing about changing the University's name to Charles Darwin University as a positive PR gesture. Presumably he thinks that dubious prospective students will fail to notice that it's the same institution with a different name. He doesn't seem to have asked himself whether we actually want students who are that thick! However, Paddy has given me a brilliant idea. My workplace should henceforth be known as the Joh Bailey campus of the Vidal Sassoon University. It has a certain je ne sais quoi, n'est ce pas?
Defensive gun use

I wonder if this incident would qualify as defensive gun use under the criteria used by John Lott Jnr and other American gun lobby apologists? It certainly counts as poetic justice in my book, canine kharma if you will.