Denny has previously made the claim that our democracy works precisely because its flexible nature allows it to withstand temporary threats to its basic principles. He has pointed to our debates here as evidence that the democracy is working because it indicates that there is sufficient transparency to allow the mechanism of our government to work through its problems.
I would argue that a similar trend is in action here at AHOCF. We have, from time to time, strayed from the path of reasoned debate into the more contentious and less civil discourse, only to recover time and again. Cooler heads do prevail and our path is once again set aright. Huzzah indeed.
In recognition and support of this resilience, I'd like to offer up a modest proposal.
Denny and I have concluded a truce of sorts -- to be humorous about it -- over at his Worldview blog. More accurately and more seriously, I think we've come to an understanding. We each took time to calmly clarify our positions about a disagreement we were having about who characterized what statements inaccurately. While we may not have reached a perfect harmony, I think both of us are satisfied with the results. We have concluded that further discussion -- I stress that term, discussion -- of the legality of warrantless surveillance is, um, warranted. It is upon this question -- is warrantless surveillance legal -- that our disagreement seems to rest.
So to my proposal. As a writing teacher, I have often used an approach with my students to attempt to get them to see other sides of an issue they have chosen to write about. We often talk about counter-arguments, but this term seems to denote a "thing" they have to create rather than a natural set of ideas that exist that they must discover. To overcome this misunderstanding as well as to encourage reason over emotion, I'll often ask them to argue the opposite of what they currently believe about an issue. This forces them to take seriously other points of view and, just as importantly, to understand them.
I would like to think we don't need this lesson and that it would merely be an interesting exercise, but our history calls that hope into question. Nevertheless, I think it would be an interesting exercise and might well benefit our discussion.
I think we can reliably, at this point, propose two theses: 1) Warrantless surveillance is legal, and 2) Warrantless surrveillance is illegal. Before we begin to argue, in the best sense of that word, those points, we might want to work together to further clarify or focus those theses. For example, would it be helpful to define warrantless surveillance of whom is legal/illegal? We want our theses to actually represent the core of the current argument, after all.
So, is anyone interested in trying this approach? If so, shall we begin by clarifying those basic theses so we actually spend our time trying to argue precisely what we want to argue? And as we choose up teams, who wants to be shirts and who wants to be skins?
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David, I will happily take on the task of assualting my own position. In the Middle Ages, kings and nobility often engaged in similar actions to discover the flaws in their own fortifications and to train their own troops, and I am very interested in seeing the flaws in my own position by seeing how it stacks up against an opposing viewpoint I do not support.
Count me in for developing the illegality thesis.
Excellent. Thus far I recall from your own arguments that you've called upon the Constitution, the Federalist Papers, a link you shared that talked about Presidential precedents. In addition to these and any sources I might come up with on my own, are there any sources that you would like me to review as I build the argument for the legality of warrantless surveillance?
Also, do you want to establish a clearer thesis or establish any ground rules?
Great idea, David. You are truly wise beyond your years -- advanced though they may be. :) I used to do the same thing with kids across a chessboard: right before I lowered the hammer on them, I'd switch seats and have them deconstruct their own position. (They often managed to lose anyway, but I'd still like to think something was learned.)
Since I mostly sat on the sidelines for the first round of the discussion (except for one brief, unwise foray that I quickly retracted), I think I'd like to sit this one out, too. Perhaps this discussion needs an adjudicator?
If I'm going to play, though, I'm totally skins. I have no problem taking off clothes in public.
David, I think the theses are fine as stated. They will develop over time on their own.
As for sources, the Constitution always serves as my first source, followed by historically relevant writings. I also tend to check my own thinking against the thinking of people I know I agree with (Hanson), people I don't always agree with (Jules Crittenden and Michael Yon), and people I know I disagree with (most writers at Slate and the Daily Kos). Typically, federal law is my last source since it is usually what is being argued over, is typically self contradictory, and generally oversteps the bounds anyway (in my opinion).
I think the only ground rule should be that each side makes a faithful effort to represent their chosen position. Otherwise, at least for right now, the rules should be open.
Out of curiousity, with no interest in creating a furor and in the interest of expanding and expounding and whatnot, could you dwell for a moment on what you mean about how "generally oversteps the bounds"?
Oh, and David... I'll consider this a challenge and I shall endeavor to try. Though I'm not sure how to make a case for something I so vehemently oppose.
But I shall try.
Are we posting them here?
Scott said, "Though I'm not sure how to make a case for something I so vehemently oppose."
I'm pretty sure that figuring out how to do so is exactly the point...
Re: Ground rules -- Agreed. I've already considered a number of approaches from a bulleted "logic" list to a more narrative argument. I think my argument might grow as I gather information as well.
Re: Adjudicator
Well, we need one of those all the time, but yes, I think that would be particularly good in this instance. I generally trust Chris' judgement and his ability to remain objective, but I do think you should declare your current opinion (though you don't have to make an argument, just which thesis do you currently favor) and the degree to which you hold it. For example, "I strongly believe warrantless surveillance is legal" or "I'm not sure about the legality of warrantless surveillance, but I'm leaning toward letting the government do what it needs to do to keep us safe" or whatever it is. That will just help us to gauge your response. One caveat for myself and others: while it is useful to gauge your current opinion, that shouldn't necessarily be used to dismiss your conclusion. I do believe Chris is quite capable of an honest, objective assessment of an argument on its merits. In fact, perhaps that's how it should be judged, not by whether we have convinced him or changed his mind, but by whether he finds the arguments to be sound and valid. Just thoughts.
Re: Scott
I was planning to make my argument as a post or even a small series of posts. I can form a basic argument right now from the ground that Denny has already prepared (I assume he could do the same from our own arguments). However, I'd like to go a little deeper if possible. I can see the argument for a side developing. I also anticipate that we can help one another by sharing "counter-arguments" in the comments. In essence, all we're attempting here is a switching of sides for a time so as to gain a bit of perspective on one another's views and the issue itself.
I don't want to put a time limit on it because of the vagaries of our schedules, but the experiment will, of course, conclude at some point. I should also say that the goal isn't to reach a consensus or anything like that, though that might occur. It's merely to spend some time with each other's views and, as Denny says, make a good faith effort to understand and represent that point of view. If at the end Chris can say we all made a compelling argument for our cases -- each other's cases -- I think we will have been successful.
Scott, it is my understanding that many laws passed by Congress and signed by presidents give little consideration to constitutionality when they are passed in spite of Congress's massive investment in agencies to ensure that fact. This trend is clear when one compares the massive United States Code to the enumerated powers in Article I Section 4 of the Constitution and to the few expanded powers in the Amendments.
Last year, Congressman John Shadegg of Arizona was the latest member of Congress to introduce the Enumerated Powers Act that would require Congress to cite specific Constitutional authority when passing a bill. In some circles, as I understand their argument, as much as 70% of the existing US Code is unconstitutional if forced to abide by the provisions of the act.
Again, it is my opinion that most federal law exceeds the bounds of the Constitution. I am sure there are compelling arguments for most of the laws I would strike, but I am skeptical that most of those arguments are Constitutional ones.
Adjudicator's Postion Statement viv-a-vis the warrantless wiretapping conversation:
I am completely undecided (i.e., generally uninformed) about the specific legality of warrantless surveillance as is currently being practiced and debated.
I tend to put the best construction on people's words and actions, and I suppose that applies to the government as well. I think there are national security questions on which "the government" should be given the benefit of the doubt. I am, however, trying to develop a commeasurate degree of skepticism in matters of public import, and I generally trust individuals (and small groups of dedicated individuals) to do a better job of managing their own affairs than large, centralized, "government" bureaucracies.
(I had to look up how to spell "bureaucracies.")
I like the 10th Ammendment, and I'm sad that it sometimes gets overshadowed by its more popular siblings.
I believe that the "antagonists" in the War on Terror are really bad guys who are (generally) driven by philosophical, political, and religious motivations that are often misunderstood, overlooked, and underestimated in public discourse on the subject.
I don't want to die by the hand of a terrorist, and I don't want to live in Cuba. In the singsong words of Sean Connery's character in Highlander: "B-A-L-A-N-C-E balance!"
I appreciate David's vote of confidence in my objectivity. As a corollary to that, I'd like to point out that I might be the only person alive who's consumed beer with all three of you. That's no guarantee of objectivity, but it certainly doesn't hurt.
Anything else?
I'm familiar with the EP act, and it's probably not the worst idea ever floated. But that's a sidetrip we don't need to take yet, as I'm not sure any of us want to argue for or against 70% of the US Code.
What I'm mostly curious about - and getting around this is the major sticking point for me in this exercise - is how you get around the enumerated power of congress to create laws that bind other officers of the government (Article I:8) and the constitutional mandate that the president "shall take care that the laws (made by the legislature) be faithfully executed".
The only logic path I can find to make my own argument but it doesn't speak to Denny's assertion of inherent Presidential power and therefore falls shy of my understanding of this exercise.
By which I mean: Am I supposed to be finding a way to prove Denny's argument, or am I supposed to be finding my own argument?
Scott, I see my role in crafting a conclusion that opposes (finds illegal) warrantless wiretapping as trying to expose the flaws in my conclusion supporting (finding legal) warrantless wiretapping. The risk in such an exercise is that one may find some fatal flaw in one's held conclusion; however, I believe that is the benefit of the exercise.
They way I see it, if I am wrong, I am wrong, but facts proving that wrongness have yet to be presented. If I find them, then good for everyone because I will come to the right side. If not, then I stick by my original position.
As to your other point, the restriction to I:8 is I:4 as well as the specific powers granted to the other branches of the government and not Congress. I think, in the case at hand, Congress has crafted laws that have not provided tools for being executed in the given circumstances, therefore the president has used other tools to fulfill his duty to faithfully execute those laws.
I think the above conclusion represents one way of stating the core difference between your view and mine: You see the laws in question as the absolute limit of executive power as framed by the Constitution. I see the laws as inadequately defined, therefore preventing the executive from fulfilling its higher, constitutional purpose. Somewhere between those two positions is likely the answer we are looking for.
Scott: I think you're supposed to take a good-faith try at arguing Denny's case, supplemented by whatever other arguments you feel you need to make an honest, valid, and logically compelling case for the legality of warrantless wiretapping.
Is this the general idea?
Yeah, that's it. The problem I'm running into now is time. There is a lot of information to absorb, and I have other things that need my attention. I don't suppose I'm alone in this, though.
Ultimately, the thesis is going to have to be modified, though I think Denny is right that this can happen naturally. As stated I can already tell you that it is clear that warrantless surveillance IS LEGAL -- in certain circumstances. The real issue we've been arguing is two-fold: did the administration's program as revealed by the NYT break the existing surveillance law? and regardless of the answer to that, should telecoms be granted amnesty for any potential wrong-doing in aiding that program?
Of course we've also veared off into other territory like what powers the government needs and is it ethical/legal to grant them greater powers, etc.
One comment that I found troubling, was Denny's comment about the actual law being his last source and one that he didn't put much stock in (that last bit is my interpretation of Denny's comment. It might not be accurate, and I don't mean to misrepresent him). While I think I understand and even have some sympathy for his broader point, I wonder if we need to agree to a definition of legal(!) or if we can just let each of us take a whack at it and let Chris and each other make the point about the definition if an argument seems to be weak.
David, let me state my "law is last" another way that may help clarify what I said:
A law that is clearly Constitutionally based, is supported by historical precedent, and if needed, has been validated by constitutional judgement is clearly legal. Laws that fail any one of those tests are suspect in my book, especially if they fail the constitutionality test.
Of course the problem is that the definition of the "constitutionality test" remains to be established in exacting terms.
Or, to say it simply, the law is the last in the pecking order because it is dependent in a findamental way on the others?
Chris, your analysis seems right.
"findamental," of course, being a secret neo-con code-word for "able to be set aside whenever we -- um, I mean, they -- feel like it.
Oh, wait. I'm supposed to be the impartial moderator here. Strike that last, and substitute "fundamental".
I had recent reason to listen to the entirety of FDR's first inaugural address, and I was surprised to find a broad segment toward the end seems to apply to our ongoing debate. I'm posting it here as source material because I am interested at how often FDR comes up in the broader debate about the Bush administration's policies (not just here, but in general).
http://historymatters.gmu.edu/d/5057/
"Action in this image and to this end is feasible under the form of government which we have inherited from our ancestors. Our Constitution is so simple and practical that it is possible always to meet extraordinary needs by changes in emphasis and arrangement without loss of essential form. That is why our constitutional system has proved itself the most superbly enduring political mechanism the modern world has produced. It has met every stress of vast expansion of territory, of foreign wars, of bitter internal strife, of world relations.
It is to be hoped that the normal balance of executive and legislative authority may be wholly adequate to meet the unprecedented task before us. But it may be that an unprecedented demand and need for undelayed action may call for temporary departure from that normal balance of public procedure.
I am prepared under my constitutional duty to recommend the measures that a stricken nation in the midst of a stricken world may require. These measures, or such other measures as the Congress may build out of its experience and wisdom, I shall seek, within my constitutional authority, to bring to speedy adoption.
But in the event that the Congress shall fail to take one of these two courses, and in the event that the national emergency is still critical, I shall not evade the clear course of duty that will then confront me. I shall ask the Congress for the one remaining instrument to meet the crisis—broad Executive power to wage a war against the emergency, as great as the power that would be given to me if we were in fact invaded by a foreign foe.
For the trust reposed in me I will return the courage and the devotion that befit the time. I can do no less.
We face the arduous days that lie before us in the warm courage of the national unity; with the clear consciousness of seeking old and precious moral values; with the clean satisfaction that comes from the stern performance of duty by old and young alike. We aim at the assurance of a rounded and permanent national life.
We do not distrust the future of essential democracy. The people of the United States have not failed. In their need they have registered a mandate that they want direct, vigorous action. They have asked for discipline and direction under leadership. They have made me the present instrument of their wishes. In the spirit of the gift I take it."
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