In all the furor over the selectively leaked National Intelligence Estimate, one of the biggest issues raised by the report isn’t getting much attention: the direct connection it draws between the growth of jihadist networks, and “pervasive anti-US sentiment among most Muslims.” That’s most Muslims, not most radical Muslims, or most Arab Muslims, or most Salafist Muslims, or any other troublesome subcategory. Supposedly, most of us understand that the conflict that flared into disaster on 9/11 is preeminently an ideological war, in which the big prize is the allegiance of the vast majority of Muslims who are not predisposed to support jihadism in any form. Well, folks, we ain’t doing so well on that most crucial front, are we? I mention this because it appears the US Senate is going to enact legislation today on treatment of terrorist suspects–virtually all of them, of course, Muslims–that will give a fresh bit of ammunition to jihadist efforts to convince their co-religionists that the United States considers them unworthy of any significant legal or moral self-restraint. This “compromise” bill, apparently worked out on the back of an envelope, and motivated almost entirely by domestic political considerations, might theoretically do some good someday, in some hypothetical case of a terrorist suspect with knowledge of a catastrophic attack. Nobody really knows. But what we do know for a fact is that by officially sanctioning some forms of torture, and denial of judicial oversight, this legislation will have a real, tangible and continuing negative impact on how our country is viewed by many millions of people whose good opinion of us has become a major strategic objective. Don’t get me wrong: I don’t think the United States should formulate its national security policies via poll results among Muslims. Yes, I understand that anti-American sentiment in the Middle East is partially the product of sentiments (e.g., hostility to Israel) that we either can’t or shouldn’t do anything about. And no, I do not believe terrorist suspects should be treated exactly like prisoners of war; indeed, I’m all for an international push to revise the Geneva Conventions to reflect the fact that terrorists, by deliberately targeting noncombatants, are guilty of crimes against humanity. But none of these considerations can justify the casual abandonment of our own legal and moral traditions at a time when our own safety depends on the ultimate acceptance of the rule of law, and of our own good faith, throughout the Muslim world. There is, of course, a school of thought, identifed most notably with Dick Cheney, that any self-imposed limitations on anti-terrorist actions represent a weak-minded “pre-9/11 framework.” The corrolary of this radical concept is that the “new Middle East” we claim as our ultimate objective can be created, and can only be created, via fire and sword; non-jihadist Muslims will ultimately have to choose sides, and we shouldn’t waste any time worrying about their opinions in the interim. The steady erosion of our prestige and influence in the region are in no small part attributable to this attitude, which has repeatedly trumped all the presidential rhetoric about our desire for a free and democratic Middle East that mirrors our values. Those supporting the Bush-Cheney position on treatment of terrorist suspects no doubt think they are signalling a tough attitude towards our jihadist enemies. But I fear it may signal something very different: a defeatist attitude, bordering on complete surrender, in the wider war against terrorism that we are waging in the hearts and minds of many millions of Muslims. This is truly a war in which we dare not cut and run.
TDS Strategy Memos
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By Ed Kilgore
In looking at Dobbs v. Jackson Women’s Health Organization from many angles at New York, one I noted was the lonely position of Chief Justice John Roberts, who failed to hold back his conservative colleagues from anti-abortion radicalism:
While the U.S. Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization will go down in history as a 6-3 decision with only the three Democrat-appointed justices dissenting, Chief Justice John Roberts actually did not support a full reversal of Roe v. Wade and Planned Parenthood v. Casey. His concurring opinion, which argued that the Court should uphold Mississippi’s ban on abortions after 15 weeks of pregnancy without entirely abolishing a constitutional right to abortion, represented a path not taken by the other five conservative members of the Court.
When the Court held oral arguments on the Mississippi law last December, the conservative majority’s determination to redeem Donald Trump’s promise to reverse Roe v. Wade was quite clear. The only ray of hope was the clear discomfort of Chief Justice John Roberts, as New York’s Irin Carmon noted at the time:
“It seemed obvious that only Roberts, who vainly tried to focus on the 15-week line even when everyone else made clear it was all or nothing, cares for such appearances. There had been some pre-argument rumblings that Barrett and Brett Kavanaugh might defect, perhaps forming a bloc with Roberts to find some middle ground as happened the last time the Court considered overturning Roe in 1992’s Planned Parenthood v. Casey. On Wednesday, neither Barrett nor Kavanaugh seemed inclined to disappoint the movement that put them on the Court.”
Still, the Casey precedent offered a shred of hope, since in that 1992 case some hard and imaginative work by Republican-appointed justices determined not to overturn Roe eventually flipped Justice Anthony Kennedy and dealt a devastating blow to the anti-abortion movement. Just prior to the May leak of Justice Samuel Alito’s draft majority opinion (which was very similar in every important respect to the final product), the Wall Street Journal nervously speculated that Roberts might be undermining conservative resolve on the Court, or change sides as he famously did in the Obamacare case.
In the wake of the leak there was some reporting that Roberts was indeed determined not to go whole hog in Dobbs; one theory about the leak was that it had been engineered to freeze the other conservatives (especially Justice Brett Kavanaugh, who during his confirmation hearings had said many things incompatible with a decision to reverse Roe entirely) before the chief justice could lure them to his side.
Now it appears Roberts tried and failed. His concurrence was a not terribly compelling plea for “judicial restraint” that left him alone on the polarized Court he allegedly leads:
“I would take a more measured course. I agree with the Court that the viability line established by Roe and Casey should be discarded under a straightforward stare decisis analysis. That line never made any sense. Our abortion precedents describe the right at issue as a woman’s right to choose to terminate her pregnancy. That right should therefore extend far enough to ensure a reasonable opportunity to choose, but need not extend any further certainly not all the way to viability.”
Roberts’s proposed “reasonable opportunity” standard is apparently of his own invention, and is obviously vague enough to allow him to green-light any abortion ban short of one that outlaws abortion from the moment of fertilization, though he does seem to think arbitrarily drawing a new line at the beginning of the second trimester of pregnancy might work. Roberts’s real motivation appears to be upholding the Court’s reputation for judiciousness, which is indeed about to take a beating:
“The Court’s decision to overrule Roe and Casey is a serious jolt to the legal system — regardless of how you view those cases. A narrower decision rejecting the misguided viability line would be markedly less unsettling, and nothing more is needed to decide this case.”
In his majority opinion (joined by Justices Clarence Thomas, Neil Gorsuch, and Amy Coney Barrett, along with Kavanaugh) Alito seems to relish in mocking the unprincipled nature of the chief justice’s temporizing position:
“There are serious problems with this approach, and it is revealing that nothing like it was recommended by either party …
“The concurrence would do exactly what it criticizes Roe for doing: pulling “out of thin air” a test that “[n]o party or amicus asked the Court to adopt …
“The concurrence asserts that the viability line is separable from the constitutional right they recognized, and can therefore be “discarded” without disturbing any past precedent … That is simply incorrect.”
One has to wonder that if Merrick Garland had been allowed to join the Court in 2016, or if Amy Coney Barrett had not been rushed onto the Court in 2020, Robert’s split-the-differences approach eroding but not entirely abolishing the constitutional right to abortion might have carried the day in Dobbs. But that’s like speculating about where we would be had Donald Trump not become president in 2017 after promising conservatives the moon — and an end to Roe.