Monday, July 30, 2007

Ingmar Bergman Dead

Thursday, July 19, 2007

Words fail me.

How many straws can there be left? I'm speechless:

White House Says Hill Can't Pursue Contempt Cases
By Dan Eggen and Amy Goldstein
Washington Post Staff Writers
Friday, July 20, 2007; Page A01

Bush administration officials unveiled a bold new assertion of executive authority yesterday in the dispute over the firing of nine U.S. attorneys, saying that the Justice Department will never be allowed to pursue contempt charges initiated by Congress against White House officials once the president has invoked executive privilege.

The position presents serious legal and political obstacles for congressional Democrats, who have begun laying the groundwork for contempt proceedings against current and former White House officials in order to pry loose information about the dismissals.

Under federal law, a statutory contempt citation by the House or Senate must be submitted to the U.S. attorney for the District of Columbia, "whose duty it shall be to bring the matter before the grand jury for its action."

But administration officials argued yesterday that Congress has no power to force a U.S. attorney to pursue contempt charges in cases, such as the prosecutor firings, in which the president has declared that testimony or documents are protected from release by executive privilege. Officials pointed to a Justice Department legal opinion during the Reagan administration, which made the same argument in a case that was never resolved by the courts.

"A U.S. attorney would not be permitted to bring contempt charges or convene a grand jury in an executive privilege case," said a senior official, who said his remarks reflect a consensus within the administration. "And a U.S. attorney wouldn't be permitted to argue against the reasoned legal opinion that the Justice Department provided. No one should expect that to happen."

The official, who spoke on the condition of anonymity because he was not authorized to discuss the issue publicly, added: "It has long been understood that, in circumstances like these, the constitutional prerogatives of the president would make it a futile and purely political act for Congress to refer contempt citations to U.S. attorneys."

Mark J. Rozell, a professor of public policy at George Mason University who has written a book on executive-privilege issues, called the administration's stance "astonishing."

"That's a breathtakingly broad view of the president's role in this system of separation of powers," Rozell said. "What this statement is saying is the president's claim of executive privilege trumps all."

The administration's statement is a dramatic attempt to seize the upper hand in an escalating constitutional battle with Congress, which has been trying for months, without success, to compel White House officials to testify and to turn over documents about their roles in the prosecutor firings last year. The Justice Department and White House in recent weeks have been discussing when and how to disclose the stance, and the official said he decided yesterday that it was time to highlight it.

Yesterday, a House Judiciary subcommittee voted to lay the groundwork for contempt proceedings against White House chief of staff Joshua B. Bolten, following a similar decision last week against former White House counsel Harriet E. Miers.

The administration has not directly informed Congress of its view. A spokeswoman for Rep. John Conyers Jr. (D-Mich.), the Judiciary Committee's chairman, declined to comment . But other leading Democrats attacked the argument.

Senate Majority Leader Harry M. Reid (D-Nev.) called it "an outrageous abuse of executive privilege" and said: "The White House must stop stonewalling and start being accountable to Congress and the American people. No one, including the president, is above the law."

Sen. Charles E. Schumer (N.Y.) said the administration is "hastening a constitutional crisis," and Rep. Henry A. Waxman (D-Calif.) said the position "makes a mockery of the ideal that no one is above the law."

Waxman added: "I suppose the next step would be just disbanding the Justice Department."

Under long-established procedures and laws, the House and Senate can each pursue two kinds of criminal contempt proceedings, and the Senate also has a civil contempt option. The first, called statutory contempt, has been the avenue most frequently pursued in modern times, and is the one that requires a referral to the U.S. attorney in the District.

Both chambers also have an "inherent contempt" power, allowing either body to hold its own trials and even jail those found in defiance of Congress. Although widely used during the 19th century, the power has not been invoked since 1934 and Democratic lawmakers have not displayed an appetite for reviving the practice.

In defending its argument, administration officials point to a 1984 opinion by the Justice Department's Office of Legal Counsel, headed at the time by Theodore B. Olson, a prominent conservative lawyer who was solicitor general from 2001 to 2004. The opinion centered on a contempt citation issued by the House for Anne Gorsuch Burford, then administrator of the Environmental Protection Agency.

It concluded: "The President, through a United States Attorney, need not, indeed may not, prosecute criminally a subordinate for asserting on his behalf a claim of executive privilege. Nor could the Legislative Branch or the courts require or implement the prosecution of such an individual."

In the Burford case, which involved spending on the Superfund program, the White House filed a federal lawsuit to block Congress's contempt action. The conflict subsided when Burford turned over documents to Congress.

The Bush administration has not previously signaled it would forbid a U.S. attorney from pursuing a contempt case in relation to the prosecutor firings. But officials at Justice and elsewhere say it has long held that Congress cannot force such action.

David B. Rifkin, who worked in the Justice Department and White House counsel's office under presidents Ronald Reagan and George H.W. Bush, praised the position and said it is consistent with the idea of a "unitary executive." In practical terms, he said, "U.S. attorneys are emanations of a president's will." And in constitutional terms, he said, "the president has decided, by virtue of invoking executive privilege, that is the correct policy for the entire executive branch."

But Stanley Brand, who was the Democratic House counsel during the Burford case, said the administration's legal view "turns the constitutional enforcement process on its head. They are saying they will always place a claim of presidential privilege without any judicial determination above a congressional demand for evidence -- without any basis in law." Brand said the position is essentially telling Congress: "Because we control the enforcement process, we are going to thumb our nose at you."

Rozell, the George Mason professor and authority on executive privilege, said the administration's stance "is almost Nixonian in its scope and breadth of interpreting its power. Congress has no recourse at all, in the president's view. . . . It's allowing the executive to define the scope and limits of its own powers."

Research editor Alice Crites contributed to this report.

Monday, July 09, 2007

Materialism or social change?

It seems like one of the biggest issues facing continental theory is of how to reconcile materialist ontology with some form of progressive politics. How is it possible to move away from the metaphysical abstractions that liberatory movements of the passed relied on while still being able to engage in politics? If we can't rely on the easy categories (such as inaliable rights or Locke's notion of divinely-given autonomy), how are we to justify our sociopolitical stances? Even more, how are we to account for how political change occurs in the first place? What room is there for autonomous engagement or political agency if we're subject to material forces such as networks of power?

I've oscillated a bit on this question for years. I went from being the most vulgar kind of historical materialist to an idealist and back again. Now I'd like to become a more sophisticated kind of materialist, one that acknowledges the possibility of things like hope and sociopolitical change. A large basis for this view is the Lacanian model of subjectivity. In contrast to the brute determinism of my historicist stage (in which the subject is always directly reducible to the sum influence of juridical forces acting upon it) and the solipsism of my drift into idealism, Lacan allows for a kind of radical freedom to emerge due to the way that subjectivity is premised on a constitutive gap. The subject isn't the direct result of external forces, but is the result of the failure of those forces. Copjec gives one of my favorite explanations of this.

This isn't just Lacan. It's also evident in Kant;s argument about the subject's stance towards the thing in itself. Searle expands on this position in Rationality in Action:
Kant pointed this out a long time ago: There is no way to think away your own freedom in the process of voluntary action because the process of deliberation itself can only proceed on the presupposition of freedom, on the presupposition that there is a gap between the causes in the form of your beliefs, desires, and other reasons, and the actual decision that you make (p. 14).
But nothing fills the gap. It is itself empty.

I'm going to keep thinking about this, but I have one thought before I finish.

Zizek dedicates part of his new book, The Parallax View, to this issue. He contrasts a number of approaches to the question of how events can emerge within a materialist ontology. One theorist he discusses is, unsurprisingly, Alain Badiou, who is probably the theorist of the Event in recent decades.

Zizek dismisses Badiou for not being sufficiently materialist. This is because his Event doesn't emerge from the material coordinates of the situation that precedes it.

I'm not sure if this is correct. I understand Badiou's argument to be that Events do emerge from situations, but in a unique way. Rather than being direct consequences that are reducible to the sum of forces that precede them, they are "subtracted" from the situation. This means that the Event marks the moment when the element that had no place in that situation becomes visible.

But such an element certainly had a part of the material constitution of the situation. The critical point is that they were absent from the symbolic coordinates of that world. A good example can be found in the massive immigration protests we saw last year. People that were a physical part of their society, but were effectively erased from legitimate participation in symbolic reality made themselves known, creating a traumatic break from the world where immigrants only exist by hiding in the social margins. Its a question of their symbolic existence and I'm not sure if this is so different from Zizek's own conception of an Act that accomplishes a symbolic break (see Antigone).

Edit: To be fair, Badiou's Platonism, mathematical realism, and focus on the void as the starting point for the Event add a new twist, but I'm not convinced that those are simple idealistic gestures, especially when compared to the Lacanian argument about the Real and how the thing in itself is nothing more than the very parallax gap that separates incommensurable ways of reading the impossible deadlock that underlies the symbolic order.

Wednesday, July 04, 2007

Fetish, events, and Diet Coke

I like Diet Coke. I dislike Diet Pepsi.


For a long time, I've insisted that it's a taste issue. Diet coke seems more bitter than Diet Pepsi. But, to be honest, it's more than that. Diet Coke is about more than the actual taste. It's also about the way that the beverage is presented. This is usually pointed out as a criticism of people who prefer one soda over another.

"You don't really prefer Diet Coke. If I put Diet Pepsi in a Coke bottle, you would say that you liked it."

I accept this and don't know why it's a criticism. It's pretty obvious that enjoyment of a drink is about more than the physical taste. Other sensations are obviously important, including smell and visual aesthetics. If something tastes wonderful but looks like a pile of vomit, I'm perfectly justified in finding it unappetizing. The same goes for cola. If the aesthetics of a Pepsi bottle disagree with me, then I'm perfectly fine not preferring it to other drinks.

But then I realized that I needed to take a further step. It's not just the whole aesthetic package, but something much bigger. If someone poured me a glass of Diet Pepsi and told me that it was Coke, I would probably claim to like it. This is because enjoyment is about something not contained in the material components of the object. The object cause of desire is something that is in the object that is more than itself. I don't simply enjoy the commodity, but enjoy it as a lifestyle and an image. When I buy a coke, I'm making a statement about that brand versus the Generation Pepsi branding that irritates me.

This is what's known as a fetish. I isolate Coke as the thing that I enjoy but it's something much more elusive that isn't constrained to the physical properties of coke itself.

Jacques-Alain Miller:
The first time that Lacan proposes this still-mysterious object-cause, he illustrates it by the fetish of fetishistic perversion. It is here, he says, that the dimension of the object as cause of desire is unveiled; the fetish is not desire, but it must be there in order for there to be desire, and desire itself is going to stick around wherever it can. You see to what level the fascinating object of desire has fallen. It is no longer any old place where desire is going to stick around: it must be there. One can already, in this "be there," see Dasein, from which Lacan will characterize as the objet petit a, resonate.
Kierkegaard's picture of love has a lot in common with this idea. When you make the radical leap of loving someone, it's not just about the particular properties of that person. It would be obscene to write a list of reasons that you love someone and say that that was the total basis of the way that you felt. Such an act falls short of unconditional love because if those features changed (e.g., the love of your life got in a car accident and was disfigured), your love would vanish. Love can't be reduced to any specific feature of the person in question. It's a dedication to something in the person that is more than themselves.

Even though the love-event seems to be senseless to someone standing on the outside who is not caught up in it, the perspective of the one who finds themselves caught in it imbues it with something more. It is the position that the subject takes towards an event, and not any specific characteristics of the event, that grants it its revolutionary status. To different observers, an outbreak of popular unrest can be perceived as either a meaningless lashing out (see the way that the riots that France saw last year were often interpreted by commentators in the media) or as a challenge to the coordinates of the status quo. The critical thing isn't necessarily the physical conditions that generated the unrest, but the way that someone positions themselves towards it.

In this sense, the object of the event is empty, but it is the subject's fidelity to it that grants it retroactive substance. Love for one's significant other isn't the mechanical interaction between their features and one's preferences but depends on a radical leap on the part of the subject. I recognize myself as being caught in an event that is much more than those features. Saying that one is in love for this or that reason is part of the story, but remains incomplete. The cause of my desire is something that is much more complex and irreducible to mere fetish, in spite of how important the fetish is.

To bring this back around to tasty beverages in a somewhat vulgar fashion, I suppose that that's why I like Diet Coke. Saying it's just the taste or the curves of the bottle is just an expression of commodity fetishism. The more important source of my preference is probably the piece of consumer culture that I purchase and communicate to others when I drink it and declare that it's superior to competing brands.

Sunday, July 01, 2007

I'm really going to law school.

Fall 2007 Schedule

Contract 1
Property 1
Torts 1
Legal Writing
Legal Research
Criminal Law

(This is pretty standard)