I have never bothered much about whether or not people will remember me when I am dead; but I am sure that as long as my generation lives, in various parts of the world someone will pause now and then to reflect, 'Wasn't that a great picnic we had that day with Michener?'

I have lured my friends into some extraordinary picnics, for I hold with the French that to eat out of doors in congenial surroundings is sensible: in Afghanistan we ate high on a hill outside Kabul and watched as tribesmen moved in to attack the city; at Edfu along the Nile we spread our blankets inside that most serene of Egypt's temples; in Bali we picnicked on the terraces and in Tahiti by the waterfalls; and if tomorrow someone were to suggest that we picnic in a snowstorm, I'd go along, for of this world one never sees enough and to dine in harmony with nature is one of the gentlest and loveliest things we can do. Picnics are the apex of sensible living and the traveler who does not so explore the land through which he travels ought better to stay at home.

In Austria:


In Baghdad:


In Minsk:


In France, obviously:


In Tehran:


In Yosemite, beneath a waterfall:


And in Vienna:

See? You thought Michener was getting carried away, but he had a point.

Neither of these standards -- near certainty of the identity of the target or of zero civilian casualties -- applies to wartime operations. President Obama is placing impossible conditions on the use of force for what can only be assumed to be ideological reasons.

• His assertion that drone strikes target only terrorists "who pose a continuing and imminent threat to the American people" doesn't accurately describe the actual behavior of the CIA, assuming any reasonable definition of imminence, but is nevertheless a clear rhetorical concession that it is illegitimate to target with drones people who pose no imminent threat to America.

• His assertion that "there must be near-certainty that no civilians will be killed or injured" in U.S. drone strikes is at odds with the reality of drone policy, given that hundreds of civilians have been killed. It is still an admission that uncertainty about civilian death makes a drone strike illegitimate.

• When Obama states, "I have asked my Administration to review proposals to extend oversight of lethal actions outside of warzones that go beyond our reporting to Congress," he is conceding that present oversight is inadequate and ought to be augmented in some way.

• Obama's statement that "the success of American Muslims, and our determination to guard against any encroachments on their civil liberties, is the ultimate rebuke to those who say we are at war with Islam," strongly suggests that NYPD spying on innocent Muslim Americans, simply due to their religion, has the potential to make us less safe, despite the fact that John Brennan, his top counterterrorism adviser and current CIA director, praised the program.

• Obama mentions the need to put "careful constraints" on the State Secrets doctrine, another step civil libertarians have championed, and calls for the creation of "a strong Privacy and Civil Liberties Board."

• His statement that "journalists should not be at legal risk for doing their jobs" is an apparent rebuke to DOJ's decision to accuse James Rosen of violating the law by soliciting classified information from a government employee.
  

• Perhaps most importantly, Obama is on record stating that a failure to end the AUMF that provides the legal basis for the War on Terrorism would do damage to America, though he provides no timeline. His unexpected assurance that "I will not sign laws designed to expand this mandate further" is arguably the most important promise that he made in his speech.

There are, alas, huge caveats to consider. Some concessions, like the change in status for Yemeni prisoners cleared for release, appear to be policy changes that Obama will actually implement. But he has a long record of broken promises and misleading rhetoric on civil liberties, and it would be naive to assume that he'll follow through on everything he said on Thursday. The speech was an inescapably political maneuver, intended in part to disarm his critics, following the classic Obama pattern of affirming their strongest insights and critiques, but acting as if, having done so, there's no need to change course in the way those critiques imply.

As Benjamin Wittes put it at Lawfare:

If there was a unifying theme of President Obama's speech today at the National Defense University, it was an effort to align himself as publicly as possible with the critics of the positions his administration is taking without undermining his administration's operational flexibility in actual fact. To put it crassly, the president sought to rebuke his own administration for taking the positions it has -- but also to make sure that it could continue to do so.

With that in mind, let's take a closer look at the most misleading passages in the speech. Some concern descriptions of what Team Obama is supposedly doing already; others pertain to what it purportedly will do.

1) President Obama spoke as if he wants to persuade Congress to end the Authorization to Use Military Force. Wittes notes that "Obama does not need Congress to narrow or repeal the AUMF or to get off of a war footing. He can do it himself, declaring hostilities over in whole or in part." Instead, his administration has been taking steps to institutionalize semi-targeted killing, and Pentagon officials have talked about fighting the enemy for another ten or twenty years. Suffice it to say that the actual course he'll take for the rest of his term is decidedly unclear.

2) Obama spoke as if Congress is exercising "strong oversight" of his semi-targeted killing program. "After I took office, my Administration began briefing all strikes outside of Iraq and Afghanistan to the appropriate committees of Congress," he said. "Let me repeat that - not only did Congress authorize the use of force, it is briefed on every strike that America takes." Later he says that "the establishment of a special court to evaluate and authorize lethal action," which he opposes, "has the benefit of bringing a third branch of government into the process." This elides the fact that, prior to a drone strike, only the executive branch is part of the process. If Obama were to wrongly kill someone, Congress would only find out after the fact, and even that would be uncertain, because we have no idea what is included in a "briefing." The Obama Administration's bygone claim that civilian casualties were in the single digits, and Senator Feinstein's outrageously low estimate of civilian casualties, are both reason to doubt the quality of information being forwarded in those briefings. And the fact that oversight committee members have had to fight hard for information about targeted killing, including basic information like its legal rationale, gives the lie to the fact that oversight is generally "strong."

3) Obama claims that targets of drone strikes are only killed when they present an imminent threat to America. I've written at length about how the Obama Administration's working definition of imminence bears little resemblance to the word's actual meaning. And the facts bear out the evident problems with the rhetoric. Thousands of people have been killed in drone strikes since Obama took office. It just isn't credible to argue that all of them constituted an imminent threat. But for drone strikes, how many attacks on Americans are we to believe there would've been? The imminence standard was reasserted in the document released Thursday that set forth the criteria for drone strikes going forward. We'll have to see what "imminence" means in practice.

4) As noted above, the claim that drone strikes only proceed when there is a "near certainty" that no civilians will be killed doesn't square with credible estimates of hundreds of dead civilians, including children. Also notable is the muddiness surrounding how the Obama Administration defines "civilian." Credible reporting suggests one operational definition is "military-aged males killed in drone strikes." Again, we'll have to see how "civilians" are defined going forward.

5) Obama states that "I do not believe it would be constitutional for the government to target and kill any U.S. citizen - with a drone, or a shotgun - without due process," then adds, "But when a U.S. citizen goes abroad to wage war against America - and is actively plotting to kill U.S. citizens; and when neither the United States, nor our partners are in a position to capture him before he carries out a plot - his citizenship should no more serve as a shield than a sniper shooting down on an innocent crowd should be protected from a swat team." This elides the core of the controversy: how is it determined that an American citizen falls into the latter category of waging war against America and plotting to kill? Obama believes that the executive branch is empowered to make that determination in secret, using opaque standards. Civil libertarians cite the Constitution's 5th Amendment and the treason clause to argue otherwise.  

6) Though it is widely known that many U.S. drone strikes have been carried out by the CIA, Obama made no mention of the clandestine intelligence agency in his speech, raising the question of whether he is acknowledging and incorporating their actions in his characterization of drone strikes generally, or treating those strikes as classified, which is to say, as if they don't exist. A failure to talk about the CIA's role constitutes a significant lack of transparency, for better or worse.

All things considered, Thursday's developments were an improvement on the status quo. Obama constrained himself rhetorically in ways he hadn't before, expressed agreement with core civil libertarian critiques, and signalled that future policy will shift in that direction as a result. But talk is cheap, Obama has a history of breaking promises to civil libertarians, and drone strikes remain surrounded in enough secrecy that it will remain difficult to verify what's going on. Moreover, policies implemented at the president's prerogative can be changed on his determination too. There remains an urgent need for Congress to step into the breach and constrain the president, even if only in the ways that Obama says that he has constrained himself.

Although Rosen's story asserts that it is "withholding some details about the sources and methods ... to avoid compromising sensitive overseas operations," the basic detail that the CIA has "sources inside North Korea" privy to its future plans is very compromising stuff all by itself. As Rosen continues, "U.S. spymasters regard [North Korea] as one of the world's most difficult to penetrate."

Once the North Koreans read the story, they must have asked if the source of the intel was human or if their communications had been breached. In any event, you can assume that the North Koreans commenced a leak probe that made the U.S. investigation look like the prosecution of a parking ticket. I have a hard time understanding what purpose Rosen's scoop served. He appears to have uncovered no wrongdoing by the CIA in North Korea and no dramatic or scandalous change of U.S. policy that's being concealed from the U.S. public. Boiled to its essence, the story says the U.S. has penetrated North Korean leadership. It's a story, all right, but I can't imagine any U.S. news outlet running it without more cause, and I'll bet that Fox News would take it back today if it could. I doubt that Rosen has committed any crimes against the state, but offenses against common journalistic sense?

I'm not so sure.

Since entering office, the President has made clear his commitment to providing Congress and the American people with as much information as possible about our sensitive counterterrorism operations, consistent with our national security and the proper functioning of the Executive Branch. Doing so is necessary, the President stated in his May 21, 2009 National Archives speech, because it enables the citizens of our democracy to "make informed judgments and hold [their Government] accountable."

In furtherance of this commitment, the Administration has provided an
unprecedented level of transparency into how sensitive counterterrorism operations are conducted. Several senior Administration officials, including myself, have taken numerous steps to explain publicly the legal basis for the United States' actions to the American people and the Congress. For example, in March 2012, I delivered an address at Northwestern University Law School discussing certain aspects of the Administration's counterterrorism legal framework. And the Department of Justice and other departments and agencies have continually worked with the appropriate oversight committees in the Congress to ensure that those committees are fully informed of the legal basis for our actions.

The Administration is determined to continue these extensive outreach efforts to
communicate with the American people. Indeed, the President reiterated in his State of the Union address earlier this year that he would continue to engage with the Congress about our counterterrorism efforts to ensure that they remain consistent with our laws and values, and become more transparent to the American people and to the world. To this end, the President has directed me to disclose certain information that until now has been properly classified.

The Department of Justice did not claim that the Fox News reporter in the Stephen Jin-Woo Kim case committed a crime merely by publishing classified information. According to the Government's filing... the reporter in question actively asked people with access to classified information to break the law by providing him classified information he could publish. He used false names and "dead drop" email accounts to do so. In other words, he wasn't someone to whom a whistleblower came to disclose information; he was actively asking people to violate the law, and enabling them to do so. Remember, there's no doubt that--assuming Mr. Kim is the guilty party--he violated the law if he disclosed properly classified information to a reporter.

Let's look at an analogy. If a reporter finds Justin Bieber's private diary on the street and publishes it, that's journalism (of a sort). But if she pays someone to break into Bieber's house to steal the diary, hasn't she has aided and abetted, or conspired in, a crime, even if her intent is to get material to publish? That's exactly what the Government says happened here--a reporter soliciting, and aiding and abetting criminal activity.

During any national emergency resulting from a war to which the United States is a party, or from threat of such a war, the President may, by proclamation, declare the existence of such emergency and, by proclamation, prohibit the publishing or communicating of, or the attempting to publish or communicate any information relating to the national defense which, in his judgment, is of such character that it is or might be useful to the enemy.

Moreover, the Act of September 23, 1950, in amending 18 U.S.C. § 793 states in § 1(b) that: "Nothing in this Act shall be construed to authorize, require, or establish military or civilian censorship or in any way to limit or infringe upon freedom of the press or of speech as guaranteed by the Constitution of the United States and no regulation shall be promulgated hereunder having that effect." Thus, Congress has been faithful to the command of the First Amendment in this area.

FOLLOWING the disclosure that the Justice Department obtained the telephone records of Associated Press journalists, The A.P. and other news organizations have sharply criticized the action as investigative overreaching and unwarranted interference with the ability of journalists to report on government operations.

As former Justice Department officials who served in the three administrations preceding President Obama's, we are worried that the criticism of the decision to subpoena telephone toll records of A.P. journalists in an important leak investigation sends the wrong message to the government officials who are responsible for our national security.

While neither we nor the critics know the circumstances behind the prosecutors' decision to issue this subpoena, we do know from the government's public disclosures that the prosecutors were right to investigate this leak vigorously. The leak -- which resulted in a May 2012 article by The A.P. about the disruption of a Yemen-based terrorist plot to bomb an airliner -- significantly damaged our national security. The United States and its allies were trying to locate a master bomb builder affiliated with Al Qaeda in the Arabian Peninsula, a group that was extremely difficult to penetrate. After considerable effort and danger, an agent was inserted inside the group. Although that agent succeeded in foiling one serious bombing plot against the United States, he was rendered ineffective once his existence was disclosed.

The leak of such sensitive source information not only denies us an invaluable insight into our adversaries' plans and operations. It is also devastating to our overall ability to thwart terrorist threats, because it discourages our allies from working and sharing intelligence with us and deters would-be sources from providing intelligence about our adversaries. Unless we can demonstrate the willingness and ability to stop this kind of leak, those critical intelligence resources may be lost to us.

At the time the article was published, there were strong bipartisan calls for the Justice Department to find the leaker. Attorney General Eric H. Holder Jr. gave that assignment to Ronald C. Machen Jr., the United States attorney for the District of Columbia, who is known for his meticulous and dedicated work. Importantly, his assignment was to identify and prosecute the government official who leaked the sensitive information; it was not to conduct an inquiry into the news organization that published it. His office, which has an experienced national security team, undertook a methodical and measured investigation. Did prosecutors immediately seek the reporters' toll records? No. Did they subpoena the reporters to testify or compel them to turn over their notes? No. Rather, according to the Justice Department's May 14 letter to The A.P., they first interviewed 550 people, presumably those who knew or might have known about the agent, and scoured the documentary record. But after eight months of intensive effort, it appears that they still could not identify the leaker.

It was only then -- after pursuing "all reasonable alternative investigative steps," as required by the department's regulations -- that investigators proposed obtaining telephone toll records (logs of calls made and received) for about 20 phone lines that the leaker might have used in conversations with A.P. journalists. They limited the request to the two months when the leak most likely occurred, and did not propose more intrusive investigative steps. The decision was made at the highest levels of the Justice Department, under longstanding regulations that are well within the boundaries of the Constitution. Having participated in similar decisions, we know that they are made after careful deliberation, because the government does not lightly seek information about a reporter's work. Along with the obligation to investigate and prosecute government employees who violate their duty to protect operational secrets, Justice Department officials recognize the need to minimize any intrusion into the operations of the free press.

While we cannot know all of the facts and considerations that went into the department's decision, we do know that prosecutors were right to try to find out who gave this damaging information to The A.P. They were right to pursue the investigation with "alternative investigative steps" for eight months first. And ultimately, they were right to take it to the next stage when they still needed more to make a case against the leaker. If the Justice Department had not done so, it would have defaulted on its obligation to protect the American people.

The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments, and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable.

"Congress shall make no law... abridging the freedom... of the press...."

Now, Mr. Justice BLACK, your construction of... the First Amendment is well known, and I certainly respect it. You say that no law means no law, and that should be obvious. I can only say, Mr. Justice, that to me it is equally obvious that 'no law' does not mean 'no law,' and I would seek to persuade the Court that that is true.... There are other parts of the Constitution that grant powers and responsibilities to the Executive, and... the First Amendment was not intended to make it impossible for the Executive to function or to protect the security of the United States.

"the authority of the Executive Department to protect the nation against publication of information whose disclosure would endanger the national security stems from two interrelated sources: the constitutional power of the President over the conduct of foreign affairs and his authority as Commander-in-Chief."

"Do unto others..." is extremely demanding, hard to live up to, and a very close fit with my moral intuitions

I've been influenced a bit by Catholic philosophy from JPII onward, so my simple definition is this: It is wrong to treat human persons in such a way that they are reduced to objects.

This says nothing about consent: a person may consent to be used as an object, but it is still wrong to use them that way. It says nothing about utility: society may approve of using some people as objects; whether those people are actual slaves or economically oppressed wage-slaves it is still wrong to treat them like objects. What it says, in fact, is that human beings have intrinsic worth and dignity such that treating them like objects is wrong.

And it is also wrong to treat one's own self like an object... doing so can be sinful. This is why Christians don't accept things like assisted suicide, because suicide is a way of treating a human being--one's self or another--like an object, a purely material being with no transcendent worth whose existence may be ended any time that existence becomes difficult or inconvenient... There are things which it is not permissible to do to one's own self, regardless of one's desire... and this includes old sins like drunkenness, porn use, and general profligacy and new ones like gender reassignment surgery and hiring one's body out as a reproductive prostitute/surrogate 'mother' so someone else can artificially manufacture a child.

The key, for me, is to ponder children: is there any parent who wouldn't be mortified to learn that his or her daughter was involved in that SF porn scene? Or even that his or her son was sexually aroused by and participated in it (by attending those events or even watching them online)? I'd say the vast majority of parents would indeed by mortified -- regardless of whether their kids consented, or whether or not they themselves (the parents) rely on consent for moral judgments the other 99% of the time. That's because when one truly loves another person and feels a stake in their good, it becomes impossible not to draw on a richer moral vocabulary -- one involving human ends and ideals or standards of human flourishing (the good). To realize such ends is noble or beautiful or righteous, to fall from them is degrading or base or ugly. We feel it in our bones when we have a stake. And it's that feeling that leads toward a richer moral vocabulary, metaphysics, and ultimately God.

EK: What's been the biggest surprise? What has the data shown works, or doesn't work, that you simply didn't expect?

BG: I was completely surprised that nobody was funding some of these vaccines. When I first looked at this I thought, well, all the good stuff will have been done. It was mind-blowing me to find things like Rotavirus vaccine were going unfunded. One hundred percent of rich kids were getting it and no poor kids were. So over a quarter million kids a year were dying of Rotavirus-caused diarrhea. You could save those lives for $800 per life. That's like $20 or $30 per year of life. It's just ridiculous that an intervention like that isn't funded.

Prompted by Peggy Noonan's claim in The Wall Street Journal that "we are in the midst of the worst Washington scandal since Watergate," Andrew Sullivan steps forward to defend Pres. Obama's honor. "Can she actually believe this?," he asks incredulously. "Has this president broken the law, lied under oath, or authorized war crimes? Has he traded arms for hostages with Iran? Has he knowingly sent his cabinet out to tell lies about his sex life? Has he sat by idly as an American city was destroyed by a hurricane? Has he started a war with no planning for an occupation? Has he started a war based on a lie, and destroyed the US' credibility and moral standing while he was at it, leaving nothing but a smoldering and now rekindled civil sectarian war?"

An Obama critic, having overplayed her hand, gave Sullivan an opening to respond with what amounts to, "It isn't as bad as Watergate, nor as bad as George W. Bush." Let's concede those points. I don't much care what Obama's Republican critics say about him. The scandals they're presently touting, bad as two of them are, aren't even the worst of Team Obama's transgressions.

I have a stronger critique. Sullivan hasn't internalized the worst of what Obama's done, because his notion of scandal is implicitly constrained by whatever a president's partisan opponents tout as scandalous. If they criticize Obama wrongly, he defends Obama proportionately.

To see what he's forgotten as a result, let's run once more through the first questions in Sullivan's latest Obama apologia.

Has this president broken the law, lied under oath, or authorized war crimes?

Yes, President Obama has broken the law on multiple occasions. Despite clearly stating, in a 2008 questionnaire, that  the commander-in-chief is not lawfully empowered to ignore treaties duly ratified by the Senate, Obama has willfully failed to enforce the torture treaty, signed by Ronald Reagan and duly ratified by the Senate, that compels him to investigate and prosecute torture. As Sullivan put it earlier this year, "what Obama and Holder have done (or rather not done) is illegal."

Obama also violated the War Powers Resolution, a law he has specifically proclaimed to be Constitutionally valid, when committing U.S. troops to Libya without Congressional approval.  Or as Sullivan put it in 2011, "I'm with Conor. The war in Libya becomes illegal from now on. And the imperial presidency grows even more powerful."

On the subject of war crimes, Sullivan wrote that "Obama and attorney-general Eric Holder have decided to remain in breach of the Geneva Conventions and be complicit themselves in covering up the war crimes of their predecessors - which means, of course, that those of us who fought for Obama's election precisely because we wanted a return to the rule of law were conned." In a separate entry, he went so far as to say that Obama is "a clear and knowing accessory to war crimes, and should at some point face prosecution as well, if the Geneva Conventions mean anything any more." That seems rather farther than Noonan went in her column.

As it happens, I know something about the chilling effect of an IRS investigation into a non-profit's 501 (c)-3 status because in 2009, COMMENTARY (a non-profit) received a letter from the Internal Revenue Service threatening the revocation of the institution's standing as a non-profit due to a claim that on our website we had crossed the line in the 2008 election from analysis to explicit advocacy of the candidacy of John McCain for president. (Non-profits are not permitted to endorse candidates.) The charge was false--all we had done was reprint a speech delivered at a COMMENTARY event by then-Sen. Joseph Lieberman in which he had endorsed McCain.

Taking away a non-profit's ability to receive tax-exempt charitable contributions is equivalent to a death sentence.

We were told by counsel that, should the IRS rule against us, we would have almost no recourse. You might think free speech rights would trump any such effort, but of course no one is challenging your speech rights, merely finding that what you say runs afoul of laws dealing with non-profits. You have no constitutional right to non-profit status, after all.

Disproving the false charge, which we did eventually in part by literally printing out the 2 million words that had appeared on this site in 2008 and sending them in many boxes to the IRS to show that the words in which Lieberman said he was supporting McCain were essentially a part per million, cost us tens of thousands of dollars and dozens upon dozens of hours of lost work time. The inquiry, which never should have been brought, was closed. But talking to lawyers and strategizing and the like in such a circumstance make the experience an ordeal that leaves you a bit shell-shocked--which is, of course, the point.

What to make of the fact that the undeniable rise in pornography has coincided with a startling, steep decline in the rate of forcible rape?

Kentucky Sen. Rand Paul said Friday that he considers Hillary Clinton "absolutely responsible" for failing to stop the chaos and bloodshed at the American diplomatic facility in Benghazi, Libya, last September. Speaking to reporters ahead of his address to the Iowa GOP's Lincoln Dinner this evening, Paul accused Clinton of ignoring diplomatic security as secretary of State. He expressed disbelief at suggestions that Clinton should be absolved of blame because diplomatic security-related cables never got to her. Clinton is "absolutely responsible," Paul said. "She was in charge of the State Department. She was asked repeatedly for increased security for Benghazi. Some of the media have been reporting that because she didn't read them she's protected - she wasn't responsible because she didn't read them? I fault her absolutely for not reading the cables." Paul added, "Part of being in charge is triaging what comes to your desk and what doesn't come to your desk. And to say that Libya wasn't important enough for her to be reading the cables from the ambassador asking for more security, I think was inexcusable."

The first-term senator and potential presidential candidate likened the terrorist attack in Benghazi, and the subsequent U.S. response, to the Black Hawk Down catastrophe in Somalia in the 1990s. "It was, I think, a tragic lack of leadership, similar to what Les Aspin did in Mogadishu under Bill Clinton. And he ultimately resigned his office," Paul said. Drilling ahead, he criticized the State Department for its claim that it didn't have enough money to spend on diplomatic security, and argued that the Benghazi facility should have been under military control in the first place. "We spent $300,000 on dog kennels [through the federal government]. There is money out there. A good leader finds that money and puts it in," Paul said. The mission in Benghazi, he continued "should have been under the military. It should have been done the way Baghdad was ... There should have been 100 Marines guarding the ambassador."

First, as soon as the transition teams are appointed, the Justice, State, Defense, Intelligence and White House teams should work closely with their Bush Administration counterparts to identify steps needed to close the Guantanamo prison camp as soon as possible.

To fully close Guantanamo, each detainee's case should be individually reviewed to determine: (1) which detainees have committed crimes against the U.S. and thus should be brought to U.S. soil (presumably to supermax prisons) for prosecution in regular federal or military courts; (2) if they cannot be properly tried for crimes against the U.S., which detainees should be transferred for prosecution in their home country or a third country, in accordance with applicable extradition principles; (3) which detainees have committed no crimes against the U.S. and thus should be repatriated to their home country for release, consistent with U.S. obligations under international human rights and humanitarian law; and (4) which detainees have committed no crimes against the U.S., but must be resettled in third countries (or granted asylum), rather than returned home, where they face substantial risk of torture or other forms of persecution.

With respect to the last three groups, immediately after the 2008 election, the incoming State Department transition team should ask the outgoing administration to appoint a high-level confidant of the President-elect as a special envoy. That special envoy should be dispatched abroad to advise nations whose citizens comprise significant parts of the Guantanamo population that the strength of their diplomatic relations with the new Administration will depend vitally upon their willingness, where possible, to repatriate their citizens before the inauguration with meaningful and enforceable diplomatic assurances -- in writing, and monitored by visitations by U.S. diplomats, the International Committee of the Red Cross, and human rights nongovernmental organizations-- that repatriated detainees will not be subjected to torture or cruel treatment.

At the same time, the Defense Department should begin shutting down facilities on Guantanamo to demonstrate that the United States will no longer inappropriately use the naval base as an offshore prison camp. The DOD's Office of Detainee Affairs should be brought under the supervision of a senior legal counsel position on human rights and humanitarian law created within the Defense Department's General Counsel's Office. A similar legal counsel position should also be created within the General Counsel's Office at the Department of Homeland Security. The Justice Department should appoint a point person to deal collectively with Guantanamo habeas counsel, and to file judicial statements of interest seeking delay of pending habeas petitions in cases where there is a high likelihood of imminent diplomatic release. Incoming attorneys to the White House Counsel's office, the Defense Department's General Counsel's office and the Justice Department's Office of Legal Counsel should also be given access to all classified legal opinions issued by those offices to determine which opinions should be withdrawn as based on inappropriate legal theories.

One of the best passages from Twilight of the Elites, Chris Hayes' book about the American meritocracy, recounted a moment in 2009 when debate raged about who President Obama should appoint to the Supreme Court. Sonia Sotomayor was thought to be on his short list. But The New Republic's Jeffrey Rosen and Harvard's Laurence Tribe argued that she should be passed over for somewhat smarter candidates. "Keep in mind the person under discussion is someone who, from humble beginnings in the Bronx, had gained entry to Princeton, graduated summa cum laude, and gone on to Yale Law, where she edited the Yale Law Journal," Hayes observed. "She had checked off every box on the to-do list of meritocratic achievement. Apparently it wasn't enough." Hayes deemed the incident an example of a "Cult of Smartness" that has taken hold. Observers behave not only as if its possible to accurately rank people in order from most to least smart, but that the right person for a job is always the one deemed smartest. "While smartness is necessary for competent elites," Hayes retorts, "it is far from sufficient: wisdom, judgment, empathy, and ethical rigor are all as important, even if those traits are far less valued."

The "Cult of Smartness" came to mind this week as I read about a controversial Heritage Foundation report on immigration reform. One of its authors, Jason Richwine, has been widely, justly criticized for having argued that we'd be foolish to permit significant Hispanic immigration in part because "no one knows whether Hispanics will ever reach IQ parity with whites, but the prediction that new Hispanic immigrants will have low-IQ children and grandchildren is difficult to argue against." Others have commented on the substance of his remarks with more expertise and originality than I can offer, so I'll pose a tangentially related question raised by the responses.

Forget the dubious constructs of race and IQ for a moment.

To me, doing so would be wrongheaded.

Even setting aside my strong preference for policies rooted in individualism and the dangerous, inherently problematic nature of singling out a specific racial group for disparate treatment, barring the hypothetical low IQ people would imply that intelligence determines worth, and that our project as a nation is intimately tied to constantly maximizing material wealth.

I wouldn't go so far as to say that recruiting human beings with impressive skills is illegitimate. In fact, I think it is prudent, and I'm glad that lots of talented scientists, athletes, artists, and programmers want to come here. More, please. I'm glad that lots of farm workers and janitors want to immigrate too. I recognize that the economic contributions of the two groups are different, but I don't conclude that the low skill immigrants are less worthy of citizenship or less valuable citizens. Are they kind? Honest? Wise? Fun? Hardworking? Inclined to embrace core American values as articulated in the Declaration of Independence? To what extent do they participate in the civic process? Do they raise children who flourish? Do the best of their ethnic traditions and cultural insights enrich the American character? Do they contribute to the common defense? Are they invested in their new country? It's amazing how often bygone immigration debates have focused on a couple narrow metrics to the exclusion of all else. There are so many important traits, and seemingly no one clamoring to measure or recruit for most of them.

Here's another trait: are we welcoming the fellow humans who most want to live here? That's a characteristic that has traditionally bound American communities. The cult of smartness is seductive, and when I've heard understandable calls for a focus on "high skill immigrants" (as distinct from maximizing immigrant IQ), I think I've nodded along too readily, as if that focus is common sense. On reflection, a country of self-declared meritocrats is probably prone to unduly emphasizing intelligence, whether the relevant task is seeking out Supreme Court justices or future immigrants. This is obviously problematic given the unreliability of intelligence measures. But even having reliable IQ scores wouldn't make a cult of intelligence wise or justified. As many ruling class catastrophes attest, selecting for smartness doesn't guarantee good results. And undervaluing other virtues and contributions is counterproductive and inhuman.

WASHINGTON -- Attorney General Eric H. Holder Jr. on Tuesday defended the Justice Department's sweeping seizure of telephone records of Associated Press journalists, describing the article by The A.P. that prompted a criminal investigation as among "the top two or three most serious leaks that I've ever seen" in a 35-year career. "It put the American people at risk, and that is not hyperbole," he said in an apparent reference to an article on May 7, 2012, that disclosed the foiling of a terrorist plot by Al Qaeda's branch in Yemen to bomb an airliner. "And trying to determine who was responsible for that, I think, required very aggressive action."

In a statement in response, The A.P.'s president and chief executive, Gary Pruitt, disputed that the publication of the article endangered security. "We held that story until the government assured us that the national security concerns had passed," he said. "Indeed, the White House was preparing to publicly announce that the bomb plot had been foiled." Mr. Pruitt said the article was important in part because it refuted White House claims that there had been no Qaeda plots around the first anniversary of the killing of Osama bin Laden.

The consequences for foreign policy are plain. A superpower cannot target a mob, it cannot declare war on a spontaneous protest, and it cannot align its grand strategy toward containing and securing the homeland against "an awful Internet video that we have nothing to do with." The best it can do in such circumstances, or so the upper echelons of the State Department would seem to believe, is take events as they come. Encourage cross-cultural understanding. Avoid inflammatory or divisive rhetoric.

But the implications would be far different if a global terrorist movement with the strategic aims of ejecting America from the Middle East and imposing sharia law across the region were behind the attack. In that case, 9/11/12 might underscore the persistence of al Qaeda despite administration pronouncements that it had been decimated*, and despite the vice president's insistence, less than a week before the attack, that the president deserved reelection because Osama bin Laden is dead and GM is alive. It might spark fear. It might suggest that the decision to remove Muammar Qaddafi from power and then keep only a light footprint--more like a toe-print--in Libya may not have been the best idea. It might cause American voters to wonder whether drone strikes and annual Eid and Nowruz greetings from the White House are really the best ways to deal with the Muslim world.

"I specifically asked, 'Is it a law enforcement flight? Can we tell people that?' He said, 'No, we can't tell you that.' Then I asked that when folks call me can I at least tell them that it is something that they shouldn't worry about, it's something they shouldn't be concerned with? He said, 'I can't tell you that.'"

QUINCY -- The Federal Aviation Administration knows what's up there but it's not telling the public. A slew of Quincy residents have been complaining and calling police and the city about an aircraft that appeared about two weeks ago and has been taking wide, repeated loops in the air, between about 7 p.m. and 4 a.m. Residents from Wollaston to West Quincy describe a low-pitch humming sound coming from the aircraft. Some have said it's reminiscent of a drone, which is an unmanned aircraft operated by remote control. "It's not a drone," FAA spokesman Jim Peters said. "It's an authorized flight and we are aware of it."

Peters declined to make any further comment. The FAA first allowed the use of unmanned aircraft in U.S. airspace in 1990. It continues to allow limited use for firefighting, rescue, law enforcement and military testing, the FAA's website says. Interest in the use of drones is growing. Quincy Police Capt. John Dougan said police are aware of the aircraft and "it's nothing to be concerned about."

... This Administration has not done enough to be transparent about legal standards and the decisionmaking process that it has been applying. It had not been sufficiently transparent to the media, to Congress, and to our allies. Because the Administration has been so opaque, a left-right coalition running from Code Pink to Rand Paul has now spoken out against the drone program, fostering a growing perception that the program is not lawful and necessary, but illegal, unnecessary, and out of control. The Administration must take responsibility for this failure, because its persistent and counterproductive lack of transparency has led to the release of necessary pieces of its public legal defense too little and too late.

As a result, the public has increasingly lost track of the real issue, which is not drone technology per se, but the need for transparent, agreed-upon domestic and international legal process and standards. It makes as little sense to attack drone technology as it does to attack the technology of such new weapons as spears, catapults, or guided missiles in their time. Cutting-edge technologies are often deployed for military purposes; whether or not that is lawful depends on whether they are deployed consistently with the laws of war, jus ad bellum and jus in bello. Because drone technology is highly precise, if properly controlled, it could be more lawful and more consistent with human rights and humanitarian law than the alternatives.

First, as President Obama has indicated he wants to do, the Administration should make public and transparent its legal standards and institutional processes for targeting and drone strikes. Second, it should make public its full legal explanation for why and when it is consistent with due process of law to target American citizens and residents. Third, it should clarify its method of counting civilian casualties, and why that method is consistent with international humanitarian law standards. Fourth, where factual disputes exist about the threat level against which past drone strikes were directed, the Administration should release the factual record. By so doing it could explain what gave it cause to believe that particular threats were imminent, called for the immediate exercise of self-defense, and demonstrated -- through the express consent of the territorial sovereign or the inability and unwillingness of  those sovereigns to suppress a legitimate threat.

After transparency, the key is consultation. The Administration should send witnesses to explain its legal standards to Congress, consult with Congress about its methodologies, standards and processes, and patiently explain why the use of force was warranted in particular, well-publicized cases. The Administration should use those same facts and standards to consult with our allies on what the global standards on drone use should be going forward, to reassure them that we are not applying a standard that we would consider unlawful if espoused to justify the use of drones by say, China, North Korea, or Iran.