Tuesday, January 20, 2009

Consult a Constitutional Lawyer

A previous post asked "what happens when the court charged with determining the legality of warrantless searches for the purpose of intelligence agrees that the president has the right to order such searches after millions of people have invested themselves in the premise that such searches were immoral because they were illegal?"

If you are a Constitutional lawyer, like Glenn Greenwald, you read carefully and apply legal knowledge to the false claims of reporters who can't be bothered with little details like facts.


Dennis L Hitzeman said...

I really have to disagree with Greenwald's assessments for two reasons:

First, his bias is a mile wide because he leads a group of people who specifically want Bush to be guilty of a felony so that he can be tried.

Second, whenever someone comes out swinging with words like "dumb", "ignorant", and "lying" without having access to any of the source documents in question (both the ruling in question and the classified ruling that was its source) it seems to take some of the wind out of the argument.

As for myself, I never said that I thought this was a vindication of anything other than the concept that a Constitutional authority does seem to exist, at least in the opinion of the FISA court.

Dennis L Hitzeman said...

Although, I will admit that the general conservative cry that this ruling proves that previous actions are vindicated lies outside the scope of the ruling.

David said...

Yeah, bias is a tricky thing. If you (the general "you") agree with a person, bias is defined as "has a reason" and if you disagree it is defined as "has an axe to grind."

I read Greenwald just about every day. When I first started reading him, I didn't know who he was. I think I can lay claim to objectivity when it comes to assessing him. Here's what I've discovered: Greenwald is certainly passionate, but his opinions on a subject are about as balanced as can be expected from a person who has passion and, because of his legal training, that's actually pretty balanced. He is generally scrupulous about his facts and presents well-reasoned and generally well-supported arguments.

He has demonstrated these traits time and again and is currently doing so in his very balanced comments about our new President. So, I don't think claiming "bias" as a way of deflecting his comments is such an effective weapon, at least with people who are willing to read and think for themselves. That doesn't mean you can't do it, and it doesn't mean that you should change your mind, though it might be a good idea to read more of him and make a more informed determination. (Of course, if you HAVE read a lot of his stuff, then I guess you'll see my point as moot.)

As to your second reason for dismissing his assessments, did you read his updates? I'm pretty sure that after reading the actual ruling, there were no significant changes to his assessment.

That said, I'm glad you see the narrowness of the ruling. Not everyone who criticizes the ex-President started out as a hater or has partisan axes to grind. It's pretty clear, even to people with nothing but basic human decency to guide their appraisal, that high-level Bush administration officials authorized torture, broke national and international law, and generally betrayed the principles of conduct that we tout as being somehow uniquely American. It is not vengence, as so many claim, but simple justice that demands an accounting for such acts taken in our name.

Defend him if you will -- and I have some definite opinions about the moral character of those who do -- but if any proclaim to believe in the rule of law, we have to agree that an investigation is warranted since their are valid questions to be answered about his administration's conduct about wiretapping and torture to name two issues. If evidence is found that confirms what many of us believe we already know, a trial is called for. In that forum -- one that upholds the rule of law -- George Bush and other ranking members of his administration can receive justice, not vengence.

Contrast that to what might happen if we applied their own sense of justice to the situation. Under that definition of justice, President Obama need only declare Bush and his top-level officials to be "terrorists." No actual evidence will be asked for, needed, or even tolerated (in most cases). Bush and his merry men can then be sent to Guantanamo where they can await whatever fate the President decides. No charges need be brought, no legal council provided. That is vengence.

Of course, if the President has done nothing wrong, he has no fear of an honest investigation. I'm sure that everyone who believes it is ok for the government to eavesdrop on us would agree with that, since I so often hear that an innocent man has nothing to fear from the law. I'm rather surprised (not really) that Bush's own supporters aren't eager for an investigation as it will surely vidicate him. Won't it?

Dennis L Hitzeman said...

I track with up until "and I have some definite opinions about the moral character of those who do " simply because this is the point where the objectivity of most people on this topic seems to fail.

I agree that there needs to be investigation, but what I think should be done with this investigation seems to disagree completely with your own, at least based on your comments. I, and many people, believe that George W Bush reacted to the events of his presidency with the tools available to him at the time. Sure, he used a scalpel as a hammer in some cases, but I am convinced he did what he believed he needed to do. I do not believe that there was any attempt at malfeasance or malevolence on Bush's part specifically or on the administration's in general.

I think what most people respond to with GWB is his methodology, which I agree was brusque. Methodology, however, does not equal criminality.

As for Greenwald, I just can't like the guy. His methodology alienates me simply because he assumes he knows more than everyone else. What he has in his personal experience does not outweigh what other people who disagree with him have in their own. Greenwald is a partisan who uses his forum as a weapon, and I cannot give him whatever credit he might deserve because of it.

Ironically, that makes my opinion of Greenwald strangely similar to your apparent opinion of GWB.

David said...

Yeah, the "moral character" quip is too broad by far. There are reasonable arguments to be made in his defense. Your own is a rather common one. So "moral" isn't the right area of belief or conduct or whatever to rail about.

The thing is, reasonable doesn't equal legal or even, in some cases, valid. The defense that "he meant well" is really beside the point. His actions were not accidents. They were deliberate and, it appears that he broke the law, defied treaties to which we are signatories, and contravened the Constitution. We'll never know whether those actions actually saved lives, cost lives, or had no quantitative effect because we can't go back and do it another way.

However, to accept what he and his administration did -- or is alleged to have done (let's at least have the investigation) -- is to accept a fundamental change in America's stated principles and behavior. We're a country full of contradictions. We've conducted ourselves throughout history with a fair amount of hypocrisy. Even in President Obama's inspiring Inaugural Address we see the impulse to overlook inconvenient facts. His comments about how we survived the challenges of WWII conveniently overlook the internment of Japanese-Americans in a time of high stress.

Nevertheless, we eventually have claimed our mistakes and tried to make whatever amends we could. To let Bush and his helpers go scot free if it is shown they did what it seems they did or to turn away from the actions in the name of some false forward movement is to let a stain stay deeply imbedded on our nation. More importantly, it is a clear signal to any incoming administration, that the law can be flouted at will. We already have too much of a disparity in our justice system between the justice meted out to the wealthy and popular and that shown to the person of little or no means. We can't afford to allow that gap to grow wider; moveover, this is an opportunity to visibly and demonstrably close the gap.

If I ignored reality and believed what everyone tells me, I would have thought the Republicans would be leading the charge on this one. They wanted to impeach Clinton for a little white lie about having consentual sex. Where's the outrage for these crimes? No one ended up stipped of their rights and freedom when Clinton lied. Many have been falsely accused and illegally detained because of the Bush Administration's program of detention and torture. Or so it appears. The evidence is out there. If we applied Bush's own system of justice, we could just grab him off the street now, but we should afford him true American justice. Let's practice what we preach.

Liking the guy or feeling sorry for him 'cause he was just trying his best is no excuse. Heck, we can take that into account during sentencing, but the statement needs to be made that this is a crime and will be punished. That much I do think is a moral issue as well as a legal one.

P.S. On the Clinton issue. I defended him at the time, much like you are defending Bush. I liked Clinton (I'm not sure you're really all that big a Bush fan, so I'm not trying to draw a perfect parallel here). The fact, though, is he broke the law. He should have been impeached. I thought the impulse to do so was petty in the extreme. The current situation is proving me right. Anyone who was promoting justice in that situation who isn't out front on this one clearly had a partisan axe to grind against Clinton.

All that said, the reality of the whole thing is that too many high-ranking Democrats were complicit in at least some of these acts to hold out much hope that there will be charges brought or maybe even investigations. It is a Washington thing -- not merely Democrat and Republican -- to try to sweep this all under the rug and forget it happened. Too bad much of it happened where the whole world could see it. It would be a lot easier to forget about it if it hadn't happened or if the Bushies had been better at their precious secrecy game. I'm glad they weren't because there is still hope that President Obama might rise above partisan politics -- as everyone and their grandma is supposedly crying for -- and do the right thing regardless of party. Still, I'm thinking "good luck with that."

Dennis L Hitzeman said...

It is on the item of legality that you and I will continue to differ, I guess. From my point of view, if the FISA court finds a Constitutional authority for the president to act in a certain way based on the 2007 law, presuming that authority withstands the scrutiny of the Supreme Court, then it seems reasonable that the authority existed previously, thereby rendering the provisions of previous law limiting that authority unconstitutional.

Because I have that view, I do not see this as an issue in need of investigation from the perspective of finding wrongdoing, but instead as an issue in need of investigation to find a better way. My problem with Bush’s approach is that it was always boorish, not that it was incorrect or illegal.

It’s interesting that you bring up Clinton because I also support his use of the same authority, as I support it for every other president who has used it.
As to the other actions of the Bush administration, I have a far less strong opinion. It is possible that certain authorizations by the administration may have crossed the line and allowed for torture. I will let the courts and the historians figure that out, although I think we will all be a little surprised what they determine.

One thing I will say with certainty is that, if we reach the point where we prosecute former presidents for acting in defense of the United States when the supposed crimes are not clear cut or easily defined (I believe the fact that so many people disagree with the idea that crimes even occurred is evidence of that lack of definition), then we risk the fundamental foundation of the nature of the government we currently possess. If presidents are afraid to act because they are afraid of being prosecuted over ambiguity, then we have lost the ability to effectively defend ourselves and the liberty we hold so dear.

David said...

Our understanding of the legal situation is different, to be sure. Since neither of us is a legal scholar, I guess it doesn't make much sense to waste too much energy trying to convince one another. As I've seen it explained, your take is inaccurate, which is about all I can say.

As for the torture issue, I guess I'm not surprised anymore by people's blase acceptance of it as business as usual. Sadly, I'll be surprised if our government actually holds itself accountable, but I don't think there is any question that we tortured people, in many cases, people who were guilty of nothing.

I will overtly disagree with you on one point. You wrote, "I believe the fact that so many people disagree with the idea that crimes even occurred is evidence of that lack of definition." Obviously, I can't argue that your statement is wrong; you DO believe that. However, I believe your premise to be highly questionable. The fact that so many people disagree only indicates that a great many people don't know or understand the definitions in question, not (necessarily) that the definition isn't clear. It also indicates that some people may be willingly (or willfully) twisting or ignoring the definition or the facts.

Who is doing which is, perhaps, still open to debate, at least in some quarters, but I think your belief is based on a very weak premise. You may yet be proven right, but I know where I'd put my money if I were a betting man. :)

Happy New Year, by the way. I hope you had a good holiday season. (And no, I'm not at war with Christmas. It's just that there was more than one holiday in there since we last communicated.) ;)

Dennis L Hitzeman said...

Happy New Year to you as well!