fallibilist

"I may be wrong and you may be right, and by an effort, we may get nearer to the truth." (Karl Popper)

Thursday, June 29, 2006

EU foreign and security policy powers

Via David Frum's blog, I note an interesting point made by Jeffrey Cimbalo on the National Interest blog: On his recent visit to Europe, should Bush have discussed foreign and security policy matters with our European leaders as heads of their own government or should the Americans discuss foreign and security policy with the EU itself? The danger in the latter approach is, as Cimbalo points out:
By dealing with the EU itself in high-profile foreign policy matters, the world’s only superpower is in effect bolstering the EU’s authority. The United States is being unnecessarily drawn to one side of a distinctly European conversation about the proper role of the EU in foreign and security policy—a conversation which is far from settled—thus bringing the EU’s longstanding problems of democratic legitimacy to America’s shores. ...
The United States must be wary of ascribing powers to the EU that its member states have not consented to. Until the current constitutional crisis passes and the EU’s powers over foreign policy become more clearly enunciated, the United States should limit itself to working with the strongest and most legitimate institutions the nations of Europe can offer
After all, the idea of a European foreign minister was part of the failed constitutional treaty, and a common security EU policy is still far from a reality, even if it were agreed to be desirable.

Wednesday, June 28, 2006

McCain tells it like it is

So why has my party, the party of small government, lately adopted the practices of our opponents who believe the bigger the government the better? I'm afraid it's because at times we value our incumbency more than our principles. We came to office to reduce the size of government. Lately, we have increased the size of government in order to stay in office. The editors of National Review have argued -- and I agree with them -- that unless Republicans curb government spending by reforming the budget process, we may lose our majorities in the House and Senate. I will go one step further and say that if Republicans do not reform our budget process, we will deserve to lose our majorities.

John McCain

Omar and Mohammed carry the news

Omar and Mohamemd, who blog at Iraq The Model, bring some interesting news in recent days. Today they report the arrest of Abu Qudama al-Tunisi, a Tunisian suspected of (who it seems has in fact confessed to) the bombing that destroyed the Askari Shrine in Samarra on February 22nd this year. Between reports on Sunday and today, they suggest that 10 insurgent groups have accepted prime minster Maliki's reconciliation plan. They also report today that no amnesty is to be offered to anyone who has killed either coalition or Iraqi government forces. This meets the condition rather eloquently set out by Mohammed on Sunday: "No legitimacy for outlaw militants, period. Who carries arms outside the official circle is an outlaw and should not be negotiated with before he drops his weapon and must first recognize the government that represents 11 million voters before he can ask for recognition from the government."

Iraq The Model is well worth dropping in on every so often for news that might not make the press in this part of the world.

The Wind that Shakes the Barley

"This is a grand honour. Our film is a little step in the British confronting their imperialist history. Maybe if we tell the truth about the past we can tell the truth about the present."
Ken Loach, accepting the Palme D'Ór prize at the Cannes film festival 2006

"There is nothing like a Brit-bashing movie to angry up the blood but scratch the surface and you'll see that Loach's latest opus goes far deeper than your Michael Collins' or your Braveheart's as he makes a comment on every imperial country who invade smaller nations for their own ends."
entertainment.ie review, June 2nd 2006

"All films dealing with Irish republicans show them as tormented idealists who sometimes do things they shouldn't: the British
or unionists are portrayed as cynical, brutal and despicable (for example Loach's Hidden Agenda and Neil Jordan's Michael Collins). So Loach was doing nothing brave in taking a sympathetic look at republicans: he was being morally lazy."
Ruth Dudley Edwards, The Guardian, June 6th 2006
Ken Loach is not a man to keep his political views to himself. He used his Palme dÓr to acceptance speech to draw a parallel between events described in his film The Wind That Shakes The Barley and modern day Iraq. (George Monbiot has drawn a similar parallel.) In the link under the first quote above he is described as a supporter of George Galloway's Respect party. He has openly discussed Northern Ireland in terms even Sinn Fein spokespersons have more or less left behind.

Like Mick Fealty, I have severe doubts about whether any historically meritorious comparison can be drawn between Iraq today and Ireland in 1920-2. Indeed Niall Stanage is also correct to point out that the followers of the late al-Zarqawi in Iraq are, of course, expressly committed to destroying freedom and democracy, of the kind Ireland had pre- and post- the 1921 Treaty. In a sense, therefore, the goals of the two sets of insurgents are irreconcilable. My suspicion is that Monbiot's reasoning - and to the extent that it used such reasoning as a guide - Loach's film are more concerned with modern politics than anything else. As for Ruth Dudley Edwards' quote used above, there is no argument that Loach's film portrays the British officers and soldiers as monstrous individuals - all but irredeemable. At one point a British commander proclaims "My men fought in the Somme!" One feels a pang of sympathy for them in that moment, but any such sentiment is drowned out by what precedes and follows it in the film.

I found the narrative of The Wind That Shakes The Barley simplistic and predictable. I think Loach's political views informed and caused this. And I think the political narrative presented (expressly and implicitly) by the film is what won it the Palme dÓr. The reason I think that is because the film itself, taken on its merits as a cinematic production, is not an outstanding piece of work. It's not dreadful either. It has poignant moments, disturbing moments and some nice camerwork of the beautiful west Cork scenery. Cillian Murphy gives a decent performance. But in places the dialogue is painfully leaden (for example the dialoguea among the young men in the yard after Micheal is murdered by British soldiers), in others the turn of events is utterly predictable. Brother killing brother is too close to cliche as a description of civil war. Also, the entire film seems to drift in and out of acknowledging context.

In the end, my essential complaint about the film is expressed well in Darren Waters' review for the BBC, as follows:

"Paul Laverty's script is one-eyed, and unashamedly so. Loach and Laverty's aim is determinedly political - to show an occupied country which rises up to throw off the yoke of an invading army. It is a clear attempt to find resonance with events in Iraq, with the US in the role of the Empire clinging on to the past.
Such lack of balance, however, results in a one-dimensional script. The British are depicted as cardboard cut-out thugs and the motivation for the protagonists is delivered with a heavy hand when a lighter touch is needed."

Will Marshall's new book

Will Marshall of the U.S. Democrats' Leadership Council has put together a book that might form the core of Democrats' arguments over the war against terrorism. It is called With All Our Might: A Progressive Strategy for Defeating Jihadism and Defending Liberty. (A brief summary of the essays is here.) The blurb says:
"With President Bush's approval ratings in a swan dive, progressives -- for the first time since 9/11 changed U.S. politics -- finally have a chance to be heard on national security. What will they say? Instead of falling back on easy criticisms of the administration's blunders in Iraq, a new Progressive Policy Institute (PPI) book argues that progressives should seize the moment by proposing a comprehensive
agenda for winning the war against jihadist terrorism -- an agenda rooted in the tough-minded, internationalist tradition of Roosevelt, Truman and Kennedy. "
One would hope so. It wouldn't be a moment too soon. The review on Democratiya, a site I only discovered thanks to Disillusioned Lefty, describes it as a manifesto for a return to the Cold War "muscular liberalism" of the Truman Democrats. The review itself is well worth a read - it also discusses recent books by Peter Beinart, Francis Fukuyama and Oliver Kamm.

Friday, June 23, 2006

Chomsky in detail

Noam Chomsky is, ahem, a controversial figure. Last year he was voted (in an online poll) the world's leading intellectual. In some political spheres he is revered. Others, while not publicly embracing his message, appear to view him as a genuine scholar, and courageous in his choice of rhetorical targets - usually the United States and its allies. Allegations have surrounded him for years that he has been at times less than completely honest with regard to interpretations and source material. Those who make such allegations conclude he must either be misinformed or disingenuous when he comes to comment on international relations and the history thereof. He has made numerous infammatory statements, to say the least.

However, clearcut facts and (comprehensive) direct quotations derived from sources are sometimes in short supply in debates about the man conduct in the world of blogs, the blogosphere. Here, on the other hand, is a document provocatively entitled "The Top 100 Chomsky Lies". It contains 100 statements made by Chomsky, and 100 rebuttals, attributed to source material of one form or another. I haven't read it all and so don't comment on the veracity of all the various claims and counter-claims, but, for example, his well-known statements about Afghanistan are to be found on page 17. Likewise the early pages disclose some very bizarre statements about Cambodia.

I should acknowledge where I spotted this document, namely on Oliver Kamm's blog.

Hope from the Middle East?

Two big stories from the Middle East - one frontpaged in The Times of London, the other relatively unheralded.

The Times reports that, perhaps as early as this weekend, the Iraqi government is to present a peace plan to several Sunni nationalist insurgent groups with whom it has been negotiating. For the first time, the official Iraqi position now seems to countenance a timeline for the removal of all coalition troops. It will also propose an amnesty and try to mitigate the effects of Paul Bremer's sweeping removal of all Baath party functionaries from civil service and military positions:
The Government will promise a finite, UN-approved timeline for the withdrawal of all foreign troops from Iraq; a halt to US operations against insurgent strongholds; an end to human rights violations, including those by coalition troops; and compensation for victims of attacks by terrorists or Iraqi and coalition forces. It will pledge to take action against Shia militias and death squads. It will also offer to review the process of “de-Baathification” and financial compensation for the thousands of Sunnis who were purged from senior jobs in the Armed Forces and Civil Service after the fall of Saddam Hussein.

The amnesty and withdrawal clauses might in one sense be seen as bitter pills for George Bush to swallow, and rather damaging Republican candidates and confuse their supporters coming up to the congressional elections. (Indeed it is unclear whether the Bush administration will sanction an amnesty for those who have killed U.S. personnel.) But a semblance of order on thr ground in Iraq must come before any such considerations. And the dynamic regarding Iraq in American politics, and among the American public (the latter causing the former, largely) is in the opposite direction: Few votes or seats will be gained by promoting a continuation of the status quo. It looks an ambitious deal, but if it were to come off, it might leave al-Qaeda and its followers rather isolated. That's the stated goal anyway. It would effectively end one front of the insurgency/civil war going on at the moment. There would still be the radicals of al-Qaeda, and the simmering violence in the southern British-controlled sphere. (Remember a state of emergency was only recently declared in Basra.) But it offers some hope. As a U.S. official quoted by The Times put it:
“This is what we did after the Second World War, after the Civil War, after the War of Independence. It may be unpalatable and unsavoury but it is how wars end.”

I suppose it's the same approach we took as regards the I.R.A. in the late 1980's and 1990's - the process began by the late Charles Haughey, and which trundles on today under his successor but one in Fianna Fail, Bertie Ahern.

Next door to Iraq, history will be made next week in Kuwait. As Amir Taheri reports in the Jerusalem Post:
Kuwaitis will go to the polls to elect a new National Assembly which will, in turn, approve a new prime minister and cabinet. The Kuwaitis will be making history for a number of reasons. This is the first election in which women are allowed to vote, which means the size of the electorate has more than doubled. More importantly, and much to the chagrin of Islamists who insist that women are unfit to play any role in politics, a number of women are standing, often on a platform of radial social and economic reform.
After Iraq, it is the second Arab state to hold such fully free elections. In recent days, the United Arab Emirates has also announced that it too will hold parliamentary elections, of one form or another. In the recent past, Saudi Arabia had (limited, municipal level only) elections. (Egypt's election, although nominally broader was perhaps less encouraging.) I won't say that all of this has been caused by events in Iraq. I'm not about to say post hoc ergo propter hoc. The weighing of factors like that probably requires the vantage point of historical hindsight. But it is encouraging in any event.

Either with Kos or against him

Markos Moulitsas, of The Daily Kos, is something of a high priest of left-wing blogging in the States. I don't read his blog, but I'm aware of the readership he attracts from a recent poll on his sight, which overwhelmingly favoured Russ Feingold as candidate for the Democrats in 2008. Senator Feingold is one of the most unreconstructed left-wing members of the Senate, probably of the entire Congress. Moulitsas is similar in outlook. All of which would lead one to guess that the latter might be a keen reader of the The New Republic. Well, perhaps he was, but not anymore. In a remarkable outburst yesterday, he lashed out at the magazine for, basically, investigating the dealings (mostly the financial dealings) of left-wing politicians and bloggers:
"The New Republic betrayed, once again, that it seeks to destroy the new people-powered movement for the sake of its Lieberman-worshipping neocon owners; that it stands with the National Review and wingnutoshpere in their opposition to grassroots Democrats. . . .TNR and its enablers are feeling the heat of their own irrelevance and this is how they fight it--by undermining the progressive movement. [TNR's Jason] Zengerle has made common cause with the wingnutosphere, using the laughable "kosola" frame they created and emailing his "scoops" to them for links. This is what the once-proud New Republic has evolved into--just another cog of the Vast RIGHT Wing Conspiracy. If you still hold a subscription to that magazine, it really is time to call it quits. If you see it
in a magazine rack, you might as well move it behind the National Review or even NewsMax, since that's who they want to be associated with these days."

As a general rule, anyone who uses the phrase "vast right (or left) wing conspiracy" sans irony is to be avoided. For people like Moulitsas, it seems, if you're not (all the time, unquestionably) with us, you're against us.

Thursday, June 22, 2006

If Necessary, Strike and Destroy, say Carter and Perry

Two Clinton-era U.S. officials, namely Ashton B. Carter and William Perry have "called on President Bush to strike the North Korean missile on its launchpad should Pyongyang persist in its determination to fire the device". (The original Washington Post article is here.) They ask:

"Should the United States allow a country openly hostile to it and armed with nuclear weapons to perfect an intercontinental ballistic missile capable of delivering nuclear weapons to U.S. soil?"
They then answer their own question in the negative, and go on to say:
"Therefore, if North Korea persists in its launch preparations, the United States should immediately make clear its intention to strike and destroy the North Korean Taepodong missile before it can be launched. This could be accomplished, for example, by a cruise missile launched from a submarine carrying a high-explosive warhead. The blast would be similar to the one that killed terrorist leader Abu Musab al-Zarqawi in Iraq. But the effect on the Taepodong would be devastating. The multi-story, thin-skinned missile filled with high-energy fuel is itself explosive -- the U.S. airstrike would puncture the missile and probably cause it to explode. The carefully engineered test bed for North Korea's nascent nuclear missile force would be destroyed, and its attempt to retrogress to Cold War threats thwarted. There would be no damage to North Korea outside the immediate vicinity of the missile gantry."

Update (3 p.m.): Thankfully, it now seems less likely that any such test will happen: China, the state that holds most leverage over the North Korean regime has spoken out publicly against any missile test. (See here.)

"Hundreds of WMDs Found in Iraq"

So reads the headline to a story on Fox News' website yesterday. Apparently a "a declassified portion of a report by the National Ground Intelligence Center, a Defense Department intelligence unit" says that, since 2003, "coalition forces have recovered approximately 500 weapons munitions which contain degraded mustard or sarin nerve agent. Despite many efforts to locate and destroy Iraq's pre-Gulf War chemical munitions, filled and unfilled pre-Gulf War chemical munitions are assessed to still exist."

But the news will not likely much alter arguments about the March 2003 invasion, principally because as Fox states:
"The weapons are thought to be manufactured before 1991 so they would not be proof of an ongoing WMD program in the 1990s. But they do show that Saddam Hussein was lying when he said all weapons had been destroyed, and it shows that years of on-again, off-again weapons inspections did not uncover these munitions."

And indeed an official in the Defense Department has pointed that the weapons found were not in a useable condition. But the revleations do raise questions about the pre-war weapons inspections and the post-invasion Iraq Survey Group report. The NGIC "took up where the ISG left off when it completed its report in November 2004, and in the process of collecting intelligence for the purpose of force protection for soldiers and sailors still on the ground in Iraq, has shown that the weapons inspections were incomplete".

Senator Rick Santorum said "This is an incredibly — in my mind — significant finding. The idea that, as my colleagues have repeatedly said in this debate on the other side of the aisle, that there are no weapons of mass destruction, is in fact false". The whole point of the Security Council resolutions, sanctions and inspections was to deprive Saddam's regime of the ability to make war on its neghbours, or aid and abet terrorists, with unconventional weapons. It seems that they were (putting it lightly) not as successful as was previously thought.


Update: This other declassified document, translated here, suggests the regime in late 2002 was hiding illegal chemical material. Oddly however, the following is written on the military homepage of published declassified Iraq documents:
"The US Government has made no determination regarding the authenticity of the documents, validity or factual accuracy of the information contained therein, or the quality of any translations, when available."

Ahern and Higgins

"You have a failed ideology, you have the most hopeless policy that I ever heard pursued by any nitwit. You are a failed person, you were rejected and your political philosophy has been rejected and you're not going to pull people back into the failed old policies that you dreamt up in south Kerry when you were a young fella. Now go away."
Bertie Ahern to Joe Higgins, Dail Eireann, June 21st 2006. (free reg. req.)

Well, perhaps we'd expect a little better from the Taoiseach. I don't really disagree with anything he said, but it sounds like the sort of thing Joe Higgins would come out with (i.e. in words I read elsewhere this morning "compensating for a lack of articulation with vehemence".) And it can't be good to sound like that.

Murtha and Gohmert

The following exchange took place on the floor of the U.S. House of Representatives between Rep. Louis Gohmert (R-TX) and Rep. John Murtha (D-PA):

Rep. Gohmert: Let me close by saying some have not had nice things to say about our colleague Mr. Murtha, and others wanting to pull out of Iraq quickly. I understand the faithful visitation that he does routinely. So i say thank god for his big heart. I say thank god for his compassion. Thank god for his visits to the wounded. Thank god for his ministering to grieving families. But thank god he was not here and prevailed after the bloodbaths at Normandy and in the Pacific or we would be here speaking Japanese or German. Thank you.

Rep. Murtha: Was the gentleman at any of those locations? Either at normandy or any of those locations?

Rep. Gohmert: You want to know which locations?

Rep. Murtha: Yeah. Normandy?

Rep. Murtha: I say were you there?

Rep. Gohmert: No, sir. I wasn't.

Rep. Murtha: Were you in Vietnam?

Rep. Gohmert: No, sir.

Rep. Murtha: Iraq?

Rep. Gohmert: No. I have been over there. I haven't been fighting.

Rep. Murtha: Boots on the ground?

Rep. Gohmert: I do admire the gentleman's compassion and all he has done for
our wounded. He has done a great service that would be you, Mr. Murtha.

This is taking the (specious) argument that in order to have a valid opinion on a war one must have fought in one to bizarre lengths. After all, Louis Gohmert was born in 1953 (nine years after Normandy) and, although he would have been (barely) old enough to fight in Viet Nam but did not, he was in the Army for a time, being a captain in the Judge Advocate General Corps. But he didn't join until 1978, after he finished law school, and also after conscription had ended. All of which is beside the point in a way, because the argument Murtha and others have been making is just nonsensical in itself.

Wednesday, June 21, 2006

Baghdad: Outside the Green Zone

A memo from the U.S. embassy in Iraq has been leaked to, and published by, the Washington Post. It describes daily life for the embassy's Iraqi staff amid ethnic tension and physical insecurity. As Daniel Drezner says, it "makes for very sobering reading".

North Korea, missiles and America

WASHINGTON (Reuters) - "The United States has moved its ground-based interceptor missile defense system from test mode to operational amid concerns over an expected North Korean missile launch, a U.S. defense official said on Tuesday."

The Wall Street Journal writes today that the U.S. should respond to any North Korean missile test by blowing it out of the sky. From the WSJ editorial:
Consider what's at stake. We've known for years that North Korea has several nuclear weapons at the very least and is developing the missile technology to threaten America. Pyongyang's test missile is believed to be a Taepodong-2. A two-stage version could reach Alaska, Hawaii or the West Coast, according to a study in March by the Center for Nonproliferation at the Monterey Institute of International Studies, while a three-stage model could reach all of the continental U.S.

CNN poll on U.S. 2008 election

As a sort of follow-on to yesterday's post about John McCain and the U.S. presidency, there is very bad news for three prominent Democrats and even worse news for one Republican governor.

A poll for CNN asked voters, in relation to several potential candidates whether they would: definitely for him/her; consider voting for him; definitely not vote for him; or had no opinion. The candidate who received the most "definitely would not vote for" votes (63%) was Jeb Bush, governor of Florida and brother of George W. Bush. 48%, 47% and 47% respectively said the same for Al Gore, Hillary Clinton and John Kerry. Clearly Jeb would be advised to give running at miss this time around with numbers like that. The three Democrats perhaps stand a chance of reducing their figures - if they can't they might as well forget about running. But then again, no Democrat since Johnson has received more than 52 % of the vote, and Carter and Clinton (twice) have been elected.

Rudolph Giuiliani and John McCain had 30% and 34% respectively, which are pretty low figures, but they only had 19% and 12%, respectively, definitely in their camps. Hillary, by contrast, received the definite support of 22%.

Tuesday, June 20, 2006

Hayek lecture 2006

Anyone in London tomorrow week (June 28th) might be interested in going along to this year's IEA annual Hayek lecture. It is to be given by U.S. interior seretary, Gale Norton, on the topic Hayek, the Market and the Environment: A US Perspective. More information can be found here. I won''t be there myself, but I look forward to reading her thoughts.

Samson v California

Another Fourth Amendment case, another split in the U.S. Supreme Court. I haven't read the judgments delivered yesterday in Samson v California yet, but the case seems to have turned on what was a "reasonable search" of a parolee under the Fourth Amendment. Justice Thomas (with whom Roberts CJ. and Alito, Scalia, Kennedy and Ginsburg JJ. agreed) gave the decision of the Court. Justice Stevens (with whom Breyer and Souter JJ. concurred) gave a dissenting judgment. Stevens J. and co. accuse the Court of sanctioning "a regime of suspicionless searches, conducted pursuant to a blanket grant of discretion, untethered by any procedural safeguards" and "an unprecedented curtailment of liberty". I'll post some thoughts about whether Stevens J. might be correct once I get around to readng the Court's judgment.

Any excuse: I

The other day, Richard noted how Shane Hegarty managed to get a dig at George W. Bush and the "so-called War on Terror" into a review of Harvey Mansfield's book Manliness published in the Irish Times - completely out of context, out of the blue, it made the writer look childish and facile.

A letter writer in today's Irish Indepedent (free reg. req.) does something similar:
"Like George W Bush's "War on Terror", Minister Cullen and Assistant Comissioner Rock's "Road Safety Plan" is a complete failure. The number of road deaths has actually increased this year over last year."

Of course, both road safety and U.S. foreign policy are serious matters. Accordingly they should be debated in a rational and grown-up. Some, however, seem to use any excuse to have a cut at the U.S., which they have the right to do. But they end up looking plain foolish.

John McCain in the 'paper

There's a fascinating interview with John McCain in today's Finanical Times. (A transcript of the entire interview is available here.) The 2000 primaries were probably a little before my time, in terms of my interest in politics. But ever since, I've had very high regard for McCain. For one thing, he's a refreshing exception among Washington politicians, in that he has carved out a reputation as a principled and independent thinker, not unduly beholden to partisan point-scoring. Indeed as the FT writes, "he has ... bolstered his moral authority by taking up the cudgels over issues - notably campaign finance reform and anti-torture legislation - that have won him support far beyond his own party". This is the man who John Kerry wanted as his running mate in 2004. (Polls suggested at the time that that team would have handily defeated Bush.) A recent poll cited in the FT found that most Democrats would vote for a candidate backed by McCain in this November's Congressional elections.

McCain rejected Kerry's overtures, probably with at least one eye on making another attempt of his own for the presidency in 2008. And in the interview published today he does not hide behind the type of langauge Hilary Clinton has used when asked about 2008. Instead he openly discusses the factors weighing on his mind about whether to run. He is 69. A campaign would be draining. His wife is unsure; he has two teenage children. But he is also immensely popular and is seen by voters as trustworthy.

Read the transcript, or pick upa a copy of today's Financial Times. If you do, you could well be reading the thoughts of the next president of the world's most powerful country.

Like

Via Damien Mulley's blog, I found this, a message from something called the Academy of Linguistic Awareness, saying in effect that people who say "like" as punctuation in their speech are, in effect, stupid. I'm from Cork and I say like all the time like, I'm insulted like. Well not really, but I would have thought people concerned with deteriorating standards of written and spoken English would be more concerned about the corrosive effect of txt speak on those whose English skills are still developing, rather than being plain condescending about is, in effect, a rather harmless habit, and a culturally ingrained one at that. I can't help it like.

New York subway plot revealed

Former Pulitzer prize winner Ron Suskind has writen a new book, The One Percent Doctrine: Deep Inside America's Pursuit of Its Enemies Since 9/11*. It contains a startling revelation. According to the June 26th edition of Time magazine, al-Qaeda planned to attack the New York subway in early 2003. The plot involved hydrogen cyanide gas, a substance similar to that used by the Nazis during World War II in their concentration camps. And, strangely, al-Qaeda called off the attack. It wasn't intercepted: The U.S. administration didn't learn about it until after the planned date. Why al-Qaeda called off the attack remains unknown; speculation suggests that the plan lacked sufficient visual and psychological impact, since each wave of assault on America should be greater than the last.

The plot was intercepted due to collaboration between the U.S. and Saudi Arabia. From the Time piece:
One of the jihadists, Bassam Bokhowa, an educated fiftyish professional, with computer skills, had visited an apartment in Saudi Arabia. And there, a joint Saudi-U.S. counterterrorist unit, formed after the meeting with Bandar in his study, found a computer. The contents were dumped onto a separate hard drive, which was sent to the United States for imaging--a way to suck out digitalia, encrypted or not.
That's where they found it: plans for construction of a device called a mubtakkar. It is a fearful thing, and quite real. Precisely, the mubtakkar is a delivery system for a widely available combination of
chemicals--sodium cyanide, which is used as rat poison and metal cleanser, and hydrogen, which is everywhere. The combination of the two creates hydrogen cyanide, a colorless, highly volatile liquid that is soluble and stable in water. It has a faint odor, like peach kernels or bitter almonds. When it is turned into gas and inhaled, it is lethal. For years, figuring out how to deliver this combination of chemicals as a gas has been something of a holy grail for terrorists.
...
Mubtakkar means "invention" in Arabic, "the initiative" in Farsi. The device is a bit of both. It's a canister with two interior containers: sodium cyanide is in one; a hydrogen product, like hydrochloric acid, in the other; and a fuse breaks the seal between them. The fuse can be activated remotely--as bombs are triggered by cell phones--breaking
the seal, creating the gas, which is then released. Hydrogen cyanide gas is a blood agent, which means it poisons cells by preventing them from being able to utilize oxygen carried in the blood. Exposure leads to dizziness, nausea, weakness, loss of consciousness and convulsions. Breathing stops and death follows. (Since blood agents are carried through the respiratory system, a gas mask is the only protection needed. If one is exposed to blood agents, amyl nitrite provides an antidote, if administered quickly enough.)
In a confined environment, such as an office building's ventilation system or a subway car, hydrogen cyanide would cause many deaths. The most chilling illustration of what happens in a closed space comes from a 20th century monstrosity. The Nazis used a form of hydrogen cyanide called Zyklon B in the gas chambers of their concentration camps.
In fact, the context for the men and the mubtakkar only became clear several months later in 2003, when an al-Qaeda informant in Pakistan (see Time online piece, page 7) told the CIA that the plan had been to attack the New York subway. But then the informer ("Ali") left "intelligence officials speechless and vexed": Al-Zawahiri had called off the attack, even though the operatives were in New York and the plan was well past conception stage.

Ali also offered insights into the nature of the Islamist terrorist network:
The Saudi group in the United States was only loosely managed by al-Ayeri or al-Qaeda. They were part of a wider array of self-activated cells across Europe and the gulf, linked by an ideology of radicalism and violence, and by affection for bin Laden. They were affiliates, not tightly tied to a broader al-Qaeda structure, but still attentive to the wishes of bin Laden or al-Zawahiri.

Another interesting point to emerge from the Time piece is the crucial role played by NSA communications surveillance in the operations surrounding the subway plot. The members of the mubtakkar cell were in New York, all but ready to strike. With thta in mind, who then could argue against domestic surveillance in principle (although its legal basis should be clearer)? Other questions arise: Why did Ali co-operate with the Americans? Why did al-Zawahiri call off the operation? (Bush is quoted as saying the following: "I mean, this is bad enough. What does calling this off say about what else they're planning? What could be the bigger operation Zawahiri didn't want to mess up?")

In the context of revelations such as this, the Irish Times' editorial the other day, continuing to speak of the "so-called" war on terror, and freely admitting that Europeans don't consider themselves at war at all, looks rather naive, doesn't it?


*The name of the One Percent Doctrine comes from a quote Suskind attributes to Dick Cheney: "If there's a 1% chance that Pakistani scientists are helping al-Qaeda build or develop a nuclear weapon, we have to treat it as a certainty in terms of our response. It's not about our analysis ... It's about our response."
The entire Time article is well worth reading.

Krauthammer on Gaza, the Palestinians and Israel

In an article carried in yesterday's Irish Times (Washington Post version: here), Charles Krauthammer wrote about the deaths of the Palestinian civilians on Gaza beach last Friday week. Media reports - and the Palestinian leadership - blamed an Israeli shell for the explosion. An Israeli military investigation found it was not its fault. But Krauthammer asks a broader question: Why on earth are the Israelis firing rockets into Gaza at all? Remember what Israel did just last August:
"It completely evacuated Gaza, dismantled all its military nstallations, removed its soldiers, destroyed all Israeli settlements and expelled all 7,000 Israeli settlers. Israel then declared the line that separates Israel from Gaza to be an international frontier. Gaza became the first independent Palestinian territory ever."
And now, writes Krauthammer, rockets are being fired into (pre-1967) Israel from Gaza, at a rate of perhaps a thousand since the start of this year. What happened to land for peace? And these rockets are often fired at Israeli civilian targets by persons - whether under the control of Fatah or Hamas or neither - who hide among civilian populations. Israel must respond; it must defend itself. If those who seek to attack its civilian population hide among civilians, incidents like last Friday week's are made all the more likely, if that incident was indeed Israel's fault.

Monday, June 19, 2006

Jones v Saudi Arabia

As the House recently explained at some length in A v Secretary of State for the Home Department (No 2) [2005] UKHL 71, [2005] 3 WLR 1249, the extreme revulsion which the common law has long felt for the practice and fruits of torture has come in modern times to be the subject of express agreement by the nations of the world. This new and important consensus is expressed in the UN Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment 1984 (1990) (Cm 1775), which came into force in June 1987 and to which both the UK and the Kingdom (with the overwhelming majority of other states) are parties. It is common ground that the proscription of torture in the Torture Convention has, in international law, the special authority which the claimants ascribe to it. The facts pleaded by the claimants, taken at face value, like other accounts frequently published in the media, are sufficient reminder, if such be needed, of the evil which torture represents.

Last week the House of Lords decided Jones v Ministry of the Interior of Saudi Arabia. The claimants alleged that they were tortured by members of the Saudi Arabian police. Mr. Jones, for example, said that that in 2001 he was held in solitary confinement and systematically tortured for 67 days. The question for the House of Lords was whether (under the State Immunity Act 1978) the U.K. courts had any jurisdiction to hear any of their claims against the Saudi state. The Court of Appeal had held that they could sue the officers but that the Kingdom was protected by state immunity.

The House of Lords (the two main speeches being given by Lords Bingham and Hoffman) decision was to the effect that, in the words of Lord Hoffman, "both are so protected". The House in effect agreed with the decision of the European Court of Human Rights in Al-Adsani v United Kingdom (2001) 34 EHRR 273, where it was held that claims of torture were not a "peremptory norm" (or, even more obscurely, in legal Latin, a jus cogens) such as to take precedence over, and create an exception to, the usual rule of state immunity. The effect of the exception argued for by the claimants would be that the U.K. courts (and, by definition, the courts of every other state) were, in the words of Lord Hoffman again, "entitle[d] or perhaps require[d] states to assume civil jurisdiction over other states in cases in which torture is alleged." The House was not prepared to take such a step. Lord Hoffman's speech ends with a quotation from one of the great Irish judges of the 20th century, Kingsmill Moore J.: "safety lies only in universal rejection". In that case, the Irish Supreme Court had been concerned with revenue claims by foreign states*. But that aphorism perhaps sums up the impulse that led the House to decide as it did - why it was unwilling to tip the balance "between the condemnation of torture as an international crime against humanity and the principle that states must treat each other as equals not to be subjected to each other's jurisdiction" to the extent contended for by the claimants.

(*As an aside, the position in relation to that area of international law has moved on, as a result of developments at EU level, namely Council Regulation 1346/2000 on Insolvency Proceedings, in relation to which see
In the matter of Cedarlease Ltd. [2005] 1 I.R. 470; High Court, March 8th 2005.)

Hudson v Michigan

For any lawyers or interested non-lawyers, the U.S. Supreme Court decided Hudson v Michigan (pdf.) last week. It concerns the Fourth Amendment's knock-and-announce rule, and the exclusionary rule for unconstitutionally obtained evidence.

The police entered Hudson's house, but failed to observe the knock-and-announce requirement. There they found guns and drugs, which became evidence used to convict Hudson of several offences. Hudson argued that the evidence was obtained in violation of his constitutional rights and therefore ought to have been supressed i.e. excluded from his trial. The Supreme Court decided that supression was not necessary in this case. The judgment of the Court was given by Scalia J., with whom Roberts CJ., Thomas, Alito and Kennedy J. concurred. Scalia J. relied on various instances over the last fewe decades when the Court has declined to order that evidence be supressed in every case where constitutional rights may have been infringed, speaking of the "substantial social costs" of such an absolute rule. (Of course, we in Ireland have a rather absolute rule, as is clear from the judgment of our own Supreme Court in People (D.P.P.) V Kenny.) In a brief concurring judgment, Kennedy J. emphasised that any breach of the Fourth Amendment was a serious matter, but that on the facts of this case supression was not required.

The case is interesting for a number of reasons. It represents a break from the pattern of unanimous rulings that Chief Justice Roberts has established since taking up his position last autumn. With cases on Guantanamo and other matters of high controversy still to come in this term, it will not be the last such break. Also, the make-up of the majority and minority in a constitutional case was unchanged from Garcetti v Ceballos (as to which see below). It seems that Justice Kennedy may have taken over Sandra Day O'Connor's mantle as the swing vote on the Court. The influence of Bush's two appointments is starting to take shape, but there is plenty more still to come in that regard. (They are lifetime appointments after all. And that is even before one considers which party will pick the replacement for Justice Stevens, who is 86 years old if I'm not mistaken.) Thirdly, there is a rather stinging dissent in Hudson from Breyer J., who all but accuses the majority of being indifferent to precedent and to the purposes of the Fourth Amendment.

The case is worth reading for anyone interested in the debate around whether unconstitutionally obtained evidence should ever be admissible in the Irish courts.

Tuesday, June 06, 2006

Garcetti v Ceballos

Richard Ceballos was a deputy district attorney in Los Angeles. Ceballos believed that a police affidavit had made "serious misrepresentations" in order to obtain a critically important search warrant. He wrote an angry memo to his supervisors; he believed the prosecution should be dropped because (he said) the warrant was faulty. The criminal case to which the warrant related went ahead. Ceballos was subpoenaed by the defence, which benefited from his testimony. As a result, Ceballos says, he was punished by various retaliations, including "reassignment from his calendar deputy position to a trial deputy position, transfer to another courthouse, and denial of a promotion." He took a legal action, claiming that his First Amendment (i.e. free speech) rights had thus been breached. His supervisors deny that decisions taken about Ceballos were retaliatory. They argued that several U.S. Supreme Court precedents were designed to prevent employer-employee relationships from becoming constitutional disputes. That Court handed down its decision last week.

To quote George Will:
The [U.S. Supreme Court] has [previously] held that the threshold question in such cases is whether the employee spoke as a private citizen and on a matter of public concern. If so, First Amendment protection is possible. But not mandatory, because the second question is whether restrictions on employees' speech are justified by the government's need, which any employer has, for substantial control over employees' words and actions.
In Ceballos' case, the Court reversed the Ninth Circuit Court of Appeals. The Ninth Circuit had sided with Ceballos, because the matter was one of public concern. Giving the judgment of the Supreme Court, Justice Kennedy (with whom Roberts CJ, Scalia, Thomas and Alito JJ. agreed) pointed out that, as Will notes:
the 9th Circuit did not consider whether Ceballos' speech was made in his "capacity as a citizen." And: "We hold that when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline."
Justice Kennedy wrote that by ignoring the question of whether the statements were made in the empoyee's category as a private citizen, the approach favoured by the Ninth Circuit would produce a huge "displacement of managerial discretion by judicial supervision." It would "commit state and federal courts to a new, permanent, and intrusive role, mandating judicial oversight of communications between and among government employees and their superiors in the course of official business," a flood of "judicial intervention in the conduct of governmental operations to a degree inconsistent with sound principles of federalism and the separation of powers."

This is an interesting question. Employers (including the government) need to control what employees do and say in order to run their operations effectively. As Justice Breyer (dissenting) put it, "the government, like any employer, must have adequate authority to direct the activities of its employees. That is also because efficient administration of legislatively authorized programs reflects the constitutional need effectively to implement the public's democratically determined will." On the other hand, free speech is fundamental in a liberal democracy; a citizen employed by the government shouldn't have this freedom curtailed unless necessary. The relevant test is the Pickering balancing test, named after Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty., 391 U. S. 563 (1968).

Justice Kennedy set out the balancing act necessary as follows:
When a citizen enters government service, the citizen by necessity must accept certain limitations on his or her freedom. See, e.g., Waters v. Churchill, 511 U. S. 661, 671 (1994) (plurality opinion) ("[T]he government as employer indeed has far broader powers than does the government as sovereign"). Government employers, like private employers, need a significant degree of control over their employees' words and actions; without it, there would be little chance for the efficient provision of public services. Cf. Connick, supra, at 143 ("[G]overnment offices could not function if every employment decision became a constitutional matter"). Public employees, moreover, often occupy trusted positions in society. When they speak out, they can express views that contravene governmental policies or impair the proper performance of governmental functions.
At the same time, the Court has recognized that a citizen who works for the government is nonetheless a citizen. The First Amendment limits the ability of a public employer to leverage the employment relationship to restrict, incidentally or intentionally, the liberties employees enjoy in their capacities as private citizens. See Perry v. Sindermann, 408 U. S. 593, 597 (1972). So long as employees are speaking as citizens about matters of public concern, they must face only those speech restrictions that are necessary for their employers to operate efficiently and effectively.
The Court's decisions, then, have sought both to promote the individual and societal interests that are served when employees speak as citizens on matters of public concern and to respect the needs of government employers attempting to perform their important public functions. See, e.g., Rankin, 483 U. S., at 384 (recognizing "the dual role of the public employer as a provider of public services and as a government entity operating under the constraints of the First Amendment"). Underlying our cases has been the premise that while the First Amendment invests public employees with certain rights, it does not empower them to "constitutionalize the employee grievance." Connick, 461 U. S., at 154
The first emphasised phrase is the part of the analysis the Ninth Circuit had elided, the second concern is clearly a motivating concern for the Supreme Court majority.

For anyone interested in this sort of thing, the case is worth reading. Justice Breyer's dissent in particular is worth reading too; his approach is interesting and persuasive. But the majority's reasoning is also attractive. Anyone who believes in limited government should hesitate to see the courts insert themselves unnecessarily in employer-employee disputes. Whatever about the facts of Ceballos' case, Justice Breyer might be correct in saying that their doctrinal analysis is potentially too sweeping. Ideally, of course, the matter of whislte-blowing would be dealt with by legislatures as they see fit. In that regard, I would share the majority's hesitance to intervene and set constitutional requirements for all 50 states i.e. the federalist and separation of powers arguments.

Sunday, June 04, 2006

Mr. A v Ireland

“Splendid!” exclaimed Senator Norris. The Minister for Justice had just informed the Seanad that the Supreme Court had allowed the State’s appeal and ordered that Mr. A (as he was known) be re-arrested. Relief must have coursed through government veins; the political storm had abated – at least for now. Quite apart from the immediate context of the re-arrest of Mr. A (and indeed the political uproar of recent days), the Court’s decision has important and interesting legal implications.

The background to this episode will be known to most readers. On May 23rd the Supreme Court held that section 1(1) of the Criminal Law Amendment Act 1935 was constitutionally invalid. That case, CC v. Ireland, involved a man now aged 23. He was charged with four offences under s.1(1), which made it an offence for any person to have unlawful carnal knowledge of (i.e. sexual intercourse with) any girl under 15. This was the offence usually referred to as “statutory rape”. (Under section 2, which was not challenged by CC, a similar offence was created in relation to girls aged less than 17.) An offence under section 1 was punishable by a sentence of up to life imprisonment.

The consequence of the wording of the legislation was that the offence was committed where the fact of intercourse and the fact of the girl’s age at the particular time were proved. No mental guilt (in legal Latin, mens rea) needed to be proved; and it was irrelevant whether the girl had in fact consented. The clear and admirable aim of the law was to protect young girls from sexual predators. The question of consent should not arise, because they were not deemed capable of making such a decision. Given their youth, they should be protected “not alone against lustful men, but against themselves” (per Maguire CJ. Attorney General (Shaugnessy) v. Ryan [1960] IR 181).

The wider question of the age of consent did not arise in CC’s case. Rather it was claimed that s1(1) was inconsistent with Article 38.1 of our Constitution (which states that no person may be charged with a criminal offence “save in due course of law”) and with his personal rights under Article 40, because an accused person had no defence whatsoever, irrespective of the circumstances. When the incidents in relation to with CC was charged were said to have taken place, he was 18. The girl in question was under 15. He said she had told him she was 16, that he had believed her, and that she had consented to all that had taken place. The crux of his case was that he had no defence in law, even where he honestly believed that the girl was over 15, and had reasonable grounds for so believing. Counsel for CC cited American and Californian case law. In one Canadian case, Wilson J. stated as follows:
“Our commitment to the principle that those who did not intend to commit harm and who took all reasonable precautions to ensure that they did not commit an offence should not be imprisoned stems from an acute awareness that to imprison a mentally innocent person is to inflict a grave injury on that person’s dignity and sense of worth. Where that person’s beliefs and his actions leading up to the commission of the prohibited act are treated as completely irrelevant in the face of the State’s pronouncement that he must automatically incarcerated for having done the prohibited act, that person is treated as little more than a means to an end.”
CC said he had not intended to do any harm; the law, however, said that his state of mind at the time of the incident was always completely irrelevant. Because of this, CC argued that the law failed to protect his dignity and right to a good name; and that his trial would not be in “due course of law”, because he would be made a criminal despite not being mentally blameworthy. In July 2005, the Supreme Court gave judgment on another aspect of CC’s case, and seemed to hint that the sub-section was constitutionally frail. It wasn’t until last week that the Court handed down its decision holding the sub-section to constitutionally invalid. Mr. Justice Hardiman, giving the unanimous decision of the Court, said:
"It appears to us that to criminalise in a serious way a person who is mentally innocent is indeed “to inflict a grave injury on that person’s dignity and sense of worth” and to treat him as “little more than a means to an end”, in the words of Wilson J. quoted earlier in this judgment. It appears to us that this, in turn, constitutes a failure by the State in its laws to respect, defend and vindicate the rights to liberty and to good name of the person so treated, contrary to the State’s obligations under Article 40 of the Constitution."

Hardiman J. said that such a finding “cannot reasonably be regarded as surprising”.

A week later, Ms. Justice Laffoy was faced with an application by a man, identified only as Mr. A (in order to protect his victim), for release. This man had plied a 12 year old girl (a friend of his daughter) with alcohol and later had sexual intercourse with her. The man was convicted under s.1(1) and sentenced to three years imprisonment. He argued that, since the Supreme Court had held in CC v. Ireland that s.1(1) was constitutionally invalid, this invalidity must have existed since 1937, when the Constitution was enacted. Therefore, he said, s.1(1) had effectively perished in 1937 and his conviction was of no legal validity. On Tuesday May 30th Ms. Justice Laffoy accepted this argument and ordered his release. The Irish Times the next day argued she had “had no choice”, given the Supreme Court’s decision. My own reaction was similar. The prospect arose of several dangerous individuals who had committed heinous crimes being released prematurely. Not only that, but their names would likely be removed from the sex offenders’ registry.

The State asked the Supreme Court for an early appeal date, which was set for Friday June 2nd. Gerard Hogan SC, the doyen of Irish constitutional lawyers, represented the State. He argued that, were the Court to sanction the release of Mr. A (and others like him), it would represent the triumph of abstract and absolute legal logic over justice. Although the Constitution was a “marvelous charter” of freedom, justice and liberty, it was also a charter of order and was concerned to protect victims of crime and the greater good. The decision in CC’s case should be held to have created a gap in the law through which individuals like Mr. A could march. The cases of CC and Mr. A were completely different: Mr. A had pleaded guilty; he had neither appealed his conviction nor challenged s.1(1) on constitutional grounds; and no one could claim he would have been able to make the “honest mistake” argument in any event. He knew the age of his victim. For the released prisoner, Conor Devally SC, argued that the liberty of the individual was fundamental to the Constitution. If the State could not show that a person was fairly convicted of an offence “in accordance with law” it had no right to imprison that person. The legislation had always since 1937 been invalid, even though it was only in 2006 that this had been judicially determined. The fact that most people might regard Mr. A’s incarceration as just did not change the fact that he had been convicted under legislation that was constitutionally invalid. (At the moment I’m reading Fareed Zakria’s The Future of Freedom: Illiberal Democracy at Home and Aboad. Zakaria describes the U.S. Bill of Rights as “a list of things that the government may not do, irrespective of the wishes of the majority.”) The effect of Mr. Devally’s argument seems to be that every individual convicted under s.1(1) could have their convictions quashed, and that anyone in prison solely for offences under s.1(1) could be released.

The Court rejected what Chief Justice John L. Murray, announcing the decision at around four o’clock on Friday afternoon, called Mr. Devally's "novel assertion", and ruled in favour of the State. Although we await the Court’s detailed reasons for its decision, we may speculate on the approach it may take. According to news reports, Mr. Hogan cited U.S. and Canadian authorities (i.e. case law), to the effect that it was open to the Supreme Court to limit the consequences of a declaration of invalidity. These may have included Linkletter v. Walker 381 U.S. 618 (1965), where the U.S. Supreme Court held that it had the power to withhold complete retroactive effect for its rulings, by looking, among other things at the “purpose and effect” of the constitutional decision. The courts were not restricted to either upholding legislation or holding every act under the legislation to be invalid. This third path seems to have been taken by our Supreme Court in Mr. A’s case.

In 1980, in Murphy v. Attorney General [1982] I.R. 241, the Supreme Court declared that certain parts of Income Tax Act 1967 were unconstitutional, because they had the effect of taxing a married couple more heavily than an unmarried couple. This opened the possibility that couples could reclaim tax payments made over the preceding 12 years. The Chief Justice of the time (Tom O’Higgins) held that the unconstitutionality should only have effect from the date of the Court’s declaration. His four colleagues, however, disagreed and held that “the date of enactment [was] the date from which invalidity is to attach to the measure which has been struck down [as unconstitutional]”. In passing, Henchy J. said (although the point did not directly arise in Murphy) that a declaration of invalidity in relation to a pre-1937 statute amounted to “a judicial death certificate [for the legislation], with the date of death stated as the date when the Constitution came into effect”.

CC’s case had involved a 1935 statute. If, as Henchy J. might have argued, s.1(1) was invalid ever since 1937, how could a conviction under it be lawful? After all, the central plank on which the State based its claimed right to imprison Mr. A seemed to have been kicked away by the decision in CC’s case. Not so, it now appears. The Supreme Court in Mr. A’s case seems to have turned away from the pure logic of such a position and tempered the law with pragmatic considerations and with a welcome concern for the rights of victims, as well as public order and the common good. The community has a legitimate right to have serious criminal offences punished accordingly. An accused person has the right to a fair trial and to his personal rights, including his right to a good name. After Friday, it seems that the courts will distinguish between the constitutionality of legislation per se and the validity of acts done under the same legislation. When the latter are challenged, the court will have to be open to countervailing considerations of the public good, while bearing in mind its duty to protect the personal rights due to each citizen and protected by out Constitution.

CC may not have been granted his due by the old law, but Mr. A's legitimate interests had not been prejudiced in any concrete manner. The scope of the statute’s constitutional invalidity did not extend to the facts of his case. Some legal philosophical purists might question the logic of the Court’s decision, but few have so far been in evidence. In the CC case, counsel for the State had asked the Court declare that s.1(1) was constitutionally invalid only to the extent that it failed to provide a defence of honest and reasonable mistake. The Court declined to do so. It held that it was not for the courts to re-write legislation. Section 1(1) was invalid, but there were various possible constitutionally permissible laws that could achieve the same goal. It seems from the news reports that the Court has now declared that the ruling in CC is to be interpreted as only allowing successful to challenges by applicants who could have made the same or similar arguments to CC. The distinction between the two cases seems to be as follows: In CC the Court was unwilling to be seen to dictate to the legislature the scope of amending legislation, but in Mr. A’s case it bit the bullet and dictated to the courts the manner in the constitutional decision was to be interpreted. The point might be a fine one; and indeed at this point it is speculation on my part.

The Court’s reasoning will become clearer when the written judgment(s) are handed down, but one suspects the Court had in mind some of the considerations mentioned by Henchy J. in Murphy’s case:
Once it has been judicially established that a statutory provision enacted by the Oireachtas is repugnant to the Constitution, and that it therefore incurred invalidity from the date of its enactment, the condemned provision will normally provide no legal justification for any act done or left undone, or for transactions undertaken in pursuance of it; and the person damnified by the operation of the invalid provision will normally be accorded by the Courts all permitted and necessary redress.
...
While it is central to the due administration of justice in an ordered society that one of the primary concerns of the Courts should be to see that prejudice suffered at the hands of those who act without legal justification, where legal justification is required, shall not stand beyond the reach of corrective legal proceedings, the law has to recognize that there may be transcendent considerations which make such a course undesirable, impractical, or impossible. Over the centuries the law has come to recognize, in one degree or another, that factors such as prescription (negative or positive), waiver, estoppel, laches, a statute of limitation, res judicata, or other matters (most of which may be grouped under the heading of public policy) may debar a person from obtaining redress in the courts for injury, pecuniary or otherwise, which would be justiciable and redressable if such considerations had not
intervened. (emphasis added)

The Supreme Court may simply reason that Mr. A suffered no prejudice by operation of the statute, even though the statute was constitutionally invalid. In rejecting the pure logic of the Mr. A's argument, the Court has accepted that in this instance "transcendent considerations which make such a course [namely releasing Mr. a and others like him] undesirable". Not the least of those considerations, it might be ventured, is the necessity that the law should retain at least some degree of public faith.