Monthly Archives: June 2006

the meaning of Hamdan

The Hamdan decision is one of those texts whose meaning will only become clear once it has been thoroughly contested. Certainly, the 5-vote majority struck down the president’s unilateral authority to create tribunals like the ones established for Guantanamo prisoners. That means that Congress must now act to preserve the tribunals, or else they will close. But what is the broader significance of the decision? It seems to me that everything depends on how the public interprets the case and digests bigger questions about presidential power and terrorism.

According to Public Agenda, “Polls taken when the idea was first proposed consistently showed majorities favoring tribunals over civilian courts in terrorism cases, but surveys since then have shown results changing when the question is rephrased. That’s a classic sign of public uncertainly in survey research and a signal that the public is still working through its views on this tactic in the war on terror. When public opinion is firmly settled on an issue, changing the wording doesn’t make much difference.”

The unsettled state of public opinion makes several outcomes possible –and will encourage activists and ideologues to try to shape the public’s interpretation of the Supreme Court’s decision.

I can imagine, first, that Hamdan will become a watershed case, standing for the principle that the executive is a dangerous branch, especially when the country appears to be threatened. The executive has guns, jails, and interrogation rooms; it has the capacity (unlike Congress) to make secret decisions. It is prone to overreach and violate individual liberties. Hamdan could represent the idea that the president must obey laws, including such international treaties as the Geneva Convention. George W. Bush could become an illustration of a dangerous president who was brought under control by the court.

If public opinion crystallized around that view, then Congress would not pass legislation to preserve the tribunals. Many Members would share Rep. Adam Schiff’s view that the Hamdan decision should not only close Guantanamo, but also end warrantless wiretapping. (As Jack Balkin notes, the administration’s use of wiretaps without court orders had the same justification as Guantanamo: the use-of-force resoluton). It is even conceivable that prominent people would start clamoring for prosecutions of men like Donald Rumsfeld for violating Article 3 of the Geneva Convention in contravention of US law.

I can also imagine, however, that Hamdan will be wrapped together with the New York Times’ leaks of banking surveillance and the Democrats’ criticisms of the Pentagon. People will believe that various “elites” are putting the country at risk by following foreign opinion and hamstringing the president. Under those circumstances, Congress will feel safe in reinstating the Guantanamo tribunals by statute. The status quo will resume and the Hamdan decision will become a footnote. It will be cited when people want presidents to consult with Congress, but the executive will feel confident in refusing to do so. (For this scenario, see my colleague Mark Graber on Balkinization.)

One of my conservative friends, a supporter of executive power, believes that Bush botched that cause by overreaching. If, at the height of the president’s popularity, he had sought congressional authorization for military tribunals and warrantless wiretaps, he would have won by large margins and established powerful precedents. Instead, he has provoked a fight over the principle that the executive needn’t consult Congress–a fight that he is losing. That’s a variation of Randy Barnett’s view.

On yet another version of the future, the Administration will benefit by closing Gitmo without losing face. “The court really rescued the administration by taking it out of this quagmire it’s been in,” said Michael Greenberger, who teaches the law of counterterrorism at the University of Maryland law school.

I certainly hope that Hamdan moves the public to support the rule of law and human rights. I also hope that it establishes the principle that the US government acts in our names, so we’re responsible for what it does. As long as the government acts secretly, we can avoid a feeling of complicity. However, if Congress now votes to allow military tribunals–or “waterboarding” and other forms of torture–that will be on our shoulders. I hope that citizens accept that resposibility.

Balkin emphasizes the shift of accountability to Congress. “What the Court has done is not so much countermajoritarian as democracy forcing. It has limited the President by forcing him to go back to Congress to ask for more authority than he already has, and if Congress gives it to him, then the Court will not stand in his way.” That’s correct, but since Congress acts in public and faces election, we could equally say that the Court has forced the President to go to the people for support. That’s truly “democracy-forcing.”

kids, communities, and online popularity

I am concerned that we are setting kids up for disappointment when we tell them that the Internet gives everyone the equivalent of a broadcast studio with which one can reach many people and change the world. Even if some kids are highly successful, most will not draw a significant audience.

Yochai Benkler’s excellent book the Strength of Networks (which is available free online with interactive features) is a useful starting point for considering this problem. In this post, I draw on Benkler’s Chapter 7.

Some early enthusiasts for the Internet assumed (with the Supreme Court in Reno v. ACLU) that everyone with a computer could become a “pamphleteer,” putting ideas into the public arena that would reach audiences simply in proportion to their relevance, value, or popularity. In that case, the popularity of websites would follow a bell curve, with more sites near the median than near the tails.

But Benkler rejects such “mid-1990s utopianism” (p. 260). A few sites are enormously more popular than the median, and there is a long tail in which sites show little evidence of an audience at all. For example, the median blog currently tracked by Truth Laid Bear (a popular ranking service) has two incoming links, whereas the top blog has 4,201.

Early papers that discovered this “power-law” (see graph, below) took a skeptical or critical line. The Internet was not a democracy or a meritocracy. Rather, people and search engines linked to sites that were already popular, thus making them more so. The rich got richer, regardless of merit.

But Benkler summarizes findings that are more optimistic than a pure power law-theory would imply. Mathematical models of the web suggest that unknown sites do rise in popularity and popular ones fall. There are many stories about innovations in tactics, techniques, or ideas that spread very rapidly. For instance, BoycottSBG–a response to the Sinclair Broadcasting Group’s alleged Republican bias–obtained enormous participation within a week. As Benkler says, “it was providing a solution that resonated with the political beliefs of many people and was useful to them for their expression and mobilization” (p. 247).

Benkler observes a “self-organizing principle” on the World Wide Web. People with strong mutual affinities find one another and link their websites or leave comments on each others’ pages. Within these affinity groups, some sites become more popular than others. But (a) there are many affinity groups, and (b) the popularity curve is not always steep within a group. “When the topically or organizationally related clusters become small enough–on the order of hundreds or even low thousands of Web pages–they no longer follow a pure power law distribution. Instead, they follow a distribution that still has a very long tail–these smaller clusters still have a few genuine ‘superstars’–but the body of the distribution is substantially more moderate: beyond the few superstars, the shape of the link distribution looks a little more like a normal distribution.” (p. 251)

Clusters of affinity groups then aggregate, often through sites that are or become “superstars.” We thus see a highly skewed distribution of popularity on the Internet as whole, yet the Web remains plural and open because of all the smaller groups. As Benkler says, “There is a big difference between a situation where no one is looking at any of the sites on the low end of the distribution, because everyone is looking only at the superstars, and a situation where dozens or hundreds of sites at the low end are looking at each other, as well as at the superstars” (p. 251). On Benkler’s model, “filtering for the network as a whole is done as a form of nested peer-review decisions, beginning with the speaker?s closest information affinity group” (p. 258). Lively dialogues begin “with communities of interest on smallish scales, practices of mutual pointing, and the fact that, with freedom to choose what to see and who to link to, with some codependence among the choices of individuals as to whom to link, highly connected points emerge even at small scales, and continue to be replicated with ever-larger visibility as the clusters grow” (p. 252).

Thus Benkler contends that the Internet is considerably more “democratic” (i.e., pluralist, open, and responsive to spontaneous popular opinion) than the traditional mass media, even if it is not utopian. I can share those views, yet I continue to worry about ordinary kids in ordinary settings who are asked to express themselves through the World Wide Web.

1. Most kids will not draw substantial audiences, because most websites remain in the tail of the distribution. If you have a less popular site, you get little feedback from your readers and viewers. Kids who create such sites may feel that they are failures, in a culture that prizes popularity.

2. Kids are unlikely to obtain a substantial audience through sheer talent or innovation or by “resonating” with public opinion. Some kids will, but the average won’t.

3. Kids may not belong to tight affinity groups, differentiated from the mass youth population. Benkler mentions “communities of interest on smallish scales” that conduct peer-review and create audiences by linking to one another. But adolescents do not automatically have such communities. The typical US high school is a massive and anonymous institution to which students do not feel attached. Kids have common concerns, but they tend to share them with millions of others. Mass media culture is profoundly homogenizing.

I suspect that the solutions to these problems do not lie primarily online. For example, the current movement to create small, “themed” high schools to replace large comprehensives would put kids in cohesive communities. Many students would care about shared local issues. They would then be interested in one another’s online products. But that change would begin with a “breaks-and-mortar” reform: building smaller schools. Likewise, when students throughout Hampton, VA, are recruited to sit on the city’s various boards, kids develop a common interest in their geographical community. But that interest starts with a policy change.

it takes all kinds

I’m trying to meet a deadline on a big project, but meanwhile experiencing various subcultures. The Supreme Court, which I visited on Monday, was one. It offers a striking combination of grand and lush architecture, palpable power and respect, and a professorial style epitomized by Justice Breyer, who acted as if he were teaching smart law students.

That same afternoon, I taught a three-hour class on leadership for young Naval, Marine, and Coast Guard officers. They are different in superficial ways from their civilian counterparts. (For instance, they call professors “Sir”). But they are also different in more important respects. Almost all of them thought that voting was a duty, a moral obligation created by sacrifices in previous wars. In contrast, when we surveyed a national sample of youth in 2002, 34 percent said that voting was a choice; 20 percent called it a responsibility; and only 9 percent said it was a duty. For better and worse, the broad US society has moved from citizenship-as-duty to citizenship-as-choice. The military remains different in that respect.

Finally, I had an intense conversation yesterday with an Egyptian, a proponent of liberal democracy and civic education. He was passionately pro-Western and hostile to political Islam. He had come to get my advice, but I kept resisting, doubting that I have ideas relevant to Mubarak’s Egypt. As I told him, there’s nothing worse than advice that begins “In my country ….” But he insisted that the US has models and ideals that Egypt should adopt.

the campaign finance decision

I happened to be in the Supreme Court chamber yesterday when the campaign finance decision was announced. Campaign finance law has been an interest of mine since I worked for Common Cause in the early 1990s; it’s the topic of chapter four of my New Progressive Era. But it was a coincidence that I was present for yesterday’s announcement. My friends Diana Hess and Lee Arbetmen, who teach Streetlaw’s Supreme Court Summer Institute for Teachers, had invited me to sit with the teachers for yesterday morning’s session in the Court.

Continue reading

group blogging for democracy

Joe Goldman has launched a new blog called The Democracy Movement. It’s a group effort, devoted to deliberative democracy and related themes. I’ve signed up to contribute regularly, along with fellow academics Archon Fung and Abby Williamson from Harvard, John Gastil from the University of Washington, and Francesca Polletta from UC Irvine/Columbia University; Lars Hasselblad Torres, Evan Paul, and Joe Goldman from AmericaSpeaks; Martha McCoy, Pat Scully, Matt Leighninger, and Amy Malick from Study Circles; Taylor Willingham from the National Issues Forums; Bill Potapchuk from the Community Building Institute; Michael Weiksner from e-thePeople; and Jed Miller, now at the ACLU and formerly at Web Lab.

There’s also a new service-learning blog with regular news from the field and some excellent contributors.