When we identify ourselves as "liberal" or "conservative" to others before they have a chance to observe it in us ourselves, what is our purpose? When the others are of like politics, do we want to associate ourselves with a community? When the others are of opposite politics, do we want to gloss over differences without getting into the gritty details? Either way, I was struck by the way that Ben Wittes, a pragmatic thinker, tends to look down his nose at such self-identification, apparently seeing it as simplification of our views.
Yet I've realized that the reason I self-identify is in order to qualify some of the more pragmatic statements that I make, in order to fend off snap judgments by the more reactive of liberals. This alert gives them a heads-up that, in total, I have reached a different conclusion than my immediate judgment might suggest. Yet even this seems to be an attempt to evade dirty details-debates or not to lose their camaraderie...
Does anyone really know what these labels mean, beyond vague association with certain noted persons and policies? Is there any real consistency implied by "I am liberal"? (At least according to Bryan Garner, the Republicans are winning the popular battle because they are able to describe their values in two-word catch-phrases that are just concrete enough to attract constituents but not concrete enough to alienate them once they are drawn in.) I often find that the liberal or conservative position simply boils down to some basic rhetoric and to the convenience of the moment. It is liberal to oppose gun rights against state force, but to support defendant rights against state prosecutors? It is conservative to vehemently oppose abortions - any sacrifice of opportunity for life - but to support schemes that might deny certain poor kids opportunities in life? "Liberalism" and "conservatism" seems, in its haste to cut men into two groups alone, to set up rigid positions on everything from individual rights against the collective to tradition in general to economics - in ways that are not necessarily logically consistent (as civil libertarians, especially, have found).
Just try asking someone, What does it mean to be liberal?
[Digression warning: I don't quite understand, except for the vague suggestion that conservatives favor the small and localized (including individual initiative and goals) while preferring continuity with the past on a large, structural level. Essentially, these individuals advocate showing respect to society by obeying traditional rules, but stretching those rules in every possible way - and openly - in order to achieve one's self interests. They oppose any attempt for society to define what ends you should work for, or to compare you in substance with others; or of any attempt to craft "ideal" social rules that are unpredictable and based on any "collective" or abstract goals.]
In short, our partisan association seems an easy way to divide ourselves into clean camps, while evading the - sometimes significant - differences between our views and those of the larger camp. We seem to derive great pleasure from ideological company.
Or is there something about these base issues that make them fundamental to the human experience? After all, it seems that conservatives tend to prefer certain types of social services, while liberals prefer others. As a recent article in The Economist explains, Americans now are now dividing geographically along partisan lines. Truth be told, I would prefer to live in a liberal community, and this seems to be based on very real personal discomfort that I feel around conservatives.
But while this may be relevant to our personal feelings, partisan identification is not useful in discussing compromise policy options. I would argue that we should avoid wearing our politics on our sleeves at all - it's unclear when this knowledge will actually aid a conversation or relationship. It's better to just work out the gritty details.
Monday, July 28, 2008
Saturday, July 19, 2008
Leaving the Altar
So the churches are modernizing, too. Someone seems to have come to terms with Mill and the realization that dogma cannot survive the harsh light of forced sunshine - and thus it must willingly open the curtains itself. Contemporary congregations are, I imagine, much more comfortable believing creeds that invite competing views and interpretations. Why has the Coos Bay Christian Science Church, with its somber services with eight elderly men sleepnig throughout, still sacrificing genuine communication for the sake of tradition?
The church in the basement of a coffeehouse that I attended today was a far cry from the pews and organ of a traditional church. The pastor embellished his sermon with colloquial terms like "awesome" and "like," and used catchy taglines like "you have a green light" and "be missional." The "hymns" were accompanied by guitar and drums and their lyrics were projected onto overhead computer screens. As Joel informed me, the session was being taped for broadcast in movie theaters on Sunday morning. When the songs resonate with people, they are much more compelling. It made me realize that organ music may at one time have been inspiring - rather than sleep-inducing as it currently is. In fact, even the inclusion of music might have attracted audiences in the mid-twelfth century.
The creed itself was non-denominational, and thus rather generic. The messages were simple motivational ones, and only loosely connected with scripture. For example, the pastor enjoined his congregation to do good wherever they could find it, to be proactive, and to unburden themselves of any material possessions that are unneeded but distracting. All of these are good other-regarding moral principles, whether substantiated by Biblical passages or not. The one - and I mean one - conventional part of the service was communion. But even this was done collectively: each person was given a mini cup of grape juice and cracker so everyone could eat and drink simultaneously, at the direction of the pastor.
The main doctrinal dispute I had was with the idea that God tells us what to do. One of the hymns said "I give you control." I could only think of Alayna and the deterioration of her life and ambitions as soon as she surrendered them to God's ambiguous "will."
Such an open environment made me confront some of the really hard questions of religion. For example, how do we know what is God's will? If God doesn't talk to us directly - and surely few can claim, honestly, to have spoken directly with him - then the author of his opinions must be church personnel. But this sounds like an invitation for abuse.
The church in the basement of a coffeehouse that I attended today was a far cry from the pews and organ of a traditional church. The pastor embellished his sermon with colloquial terms like "awesome" and "like," and used catchy taglines like "you have a green light" and "be missional." The "hymns" were accompanied by guitar and drums and their lyrics were projected onto overhead computer screens. As Joel informed me, the session was being taped for broadcast in movie theaters on Sunday morning. When the songs resonate with people, they are much more compelling. It made me realize that organ music may at one time have been inspiring - rather than sleep-inducing as it currently is. In fact, even the inclusion of music might have attracted audiences in the mid-twelfth century.
The creed itself was non-denominational, and thus rather generic. The messages were simple motivational ones, and only loosely connected with scripture. For example, the pastor enjoined his congregation to do good wherever they could find it, to be proactive, and to unburden themselves of any material possessions that are unneeded but distracting. All of these are good other-regarding moral principles, whether substantiated by Biblical passages or not. The one - and I mean one - conventional part of the service was communion. But even this was done collectively: each person was given a mini cup of grape juice and cracker so everyone could eat and drink simultaneously, at the direction of the pastor.
The main doctrinal dispute I had was with the idea that God tells us what to do. One of the hymns said "I give you control." I could only think of Alayna and the deterioration of her life and ambitions as soon as she surrendered them to God's ambiguous "will."
Such an open environment made me confront some of the really hard questions of religion. For example, how do we know what is God's will? If God doesn't talk to us directly - and surely few can claim, honestly, to have spoken directly with him - then the author of his opinions must be church personnel. But this sounds like an invitation for abuse.
Sunday, July 13, 2008
Culmination of Detainee Thoughts III: The Paradox
The paradox is this: if anyone is guaranteed full judicial process and we cannot adequately differentiate between those who are guaranteed it and those who are not without that judicial process, then we must give full judicial process to everyone. At least, this would be a paradox if we care much more about protecting the rights of those who are due full process than about denying the others process. If we care somewhat about denying process, for retributive or military reasons, we can simply give the maximal due process consistent with that goal. Yet if we claim that even this reduced process is sufficient to differentiate between the lawful and unlawful enemy combatants, then why do POWs need more process? This involves acknowledging that any trial process is necessarily imperfect and allows for some margin of error. The question is how much error we are willing to tolerate.
If we care much more about denying process, then we can easily resolve the paradox by simply ramping up process slightly across the board in order to weed out a few of the most easily differentiable cases. In this case, we are willing to tolerate a wide error margin.
A corollary result is that the Geneva Conventions cannot easily deny their due process protections to violators. Mixed in amongst civilians whose liberties we want to protect - perhaps especially in wartime - they must be given equal judicial process. Of course, once they are adequately determined to be violators, then the Conventions can retributively (or out of military necessity) deny them some rights - but judicial process is part of that determination and thus not subject to such denial.
If we care much more about denying process, then we can easily resolve the paradox by simply ramping up process slightly across the board in order to weed out a few of the most easily differentiable cases. In this case, we are willing to tolerate a wide error margin.
A corollary result is that the Geneva Conventions cannot easily deny their due process protections to violators. Mixed in amongst civilians whose liberties we want to protect - perhaps especially in wartime - they must be given equal judicial process. Of course, once they are adequately determined to be violators, then the Conventions can retributively (or out of military necessity) deny them some rights - but judicial process is part of that determination and thus not subject to such denial.
Saturday, July 12, 2008
What the hell do Congressmen want?
This simple question struck me as a conclusion as I was walking across DuPont Circle's park: What the hell do Congressmen want? All my long pondering about congressional motivations and congressional goals culminated in the simple realization that rank-and-file Congressmen are inscrutable. They do not want to play the hero, as the president usually does (or as their presidential-aspiring colleagues may). They do not want to go down in history for changing one issue (though there are some exceptions to this one). They do not (only) want to do what is good and right and true for their constituents.
Congress is insufferably noncommittal. As John Hart Ely raises in his book about war powers, Congress often shrinks from accountability. Therefore in the vast majority of cases, the most important victory is saying a lot while committing oneself to nothing. This, however, belies the theory that Congressmen simply want power. They in fact step back from the wheel quite often.
Oft-cited as it is, surely re-election cannot be their only motivation...
But after Yale-In-Washington met with former Senator Trent Lott a couple weeks ago, I'm beginning to think that Congressmen simply want to succeed in the social hierarchy that is the U.S. Congress. The ceremony is so formal and elaborate, the accommodations so opulent, the traditions and rules so clear - and all topped by an overwhelming sense of importance and purpose. With those conditions at stake, who wouldn't want to get re-elected, or simply to rise in power within Congress?
Sitting across from Lott as he rattled on stories of his exploits with procedure and persuasion, I had to restrain myself several times from asking the incoherent question, Did you often (or ever) step back and remember why you were in the Senate? Of course the people of Mississippi were constantly on the tip of his tongue, ready to be personified in every one of his public comments, but were they ever at the front of his thoughts?
Of course these are gross generalizations. But there is something disturbingly insular about most Congressmen's descriptions of their house and their role. It is almost as though Congress were not a forum, or an instrument of good governance on the ground, but a community, or an end in itself...
Congress is insufferably noncommittal. As John Hart Ely raises in his book about war powers, Congress often shrinks from accountability. Therefore in the vast majority of cases, the most important victory is saying a lot while committing oneself to nothing. This, however, belies the theory that Congressmen simply want power. They in fact step back from the wheel quite often.
Oft-cited as it is, surely re-election cannot be their only motivation...
But after Yale-In-Washington met with former Senator Trent Lott a couple weeks ago, I'm beginning to think that Congressmen simply want to succeed in the social hierarchy that is the U.S. Congress. The ceremony is so formal and elaborate, the accommodations so opulent, the traditions and rules so clear - and all topped by an overwhelming sense of importance and purpose. With those conditions at stake, who wouldn't want to get re-elected, or simply to rise in power within Congress?
Sitting across from Lott as he rattled on stories of his exploits with procedure and persuasion, I had to restrain myself several times from asking the incoherent question, Did you often (or ever) step back and remember why you were in the Senate? Of course the people of Mississippi were constantly on the tip of his tongue, ready to be personified in every one of his public comments, but were they ever at the front of his thoughts?
Of course these are gross generalizations. But there is something disturbingly insular about most Congressmen's descriptions of their house and their role. It is almost as though Congress were not a forum, or an instrument of good governance on the ground, but a community, or an end in itself...
Friday, July 4, 2008
Woolf's Realistic Feminism
Today I read Virginia Woolf's speech, "Shakespeare's Sister," in which she first articulated the "Room of One's Own" formula for the success of a female writer. There is one unusual thing about her views on feminism, which is less their content than their combination: she believes both that women have been systematically disadvantaged in a way that precluded their earlier success in writing, and that they have failed to grasp the modern opportunities to remedy that historical repression. She says, in unequivocal terms, that women have done nothing of historic value.
As it turns out, these views are very similar to my own. I have always been angered by the hump that women must climb before they can succeed like men. It is not an insurmountable slope, but one that ensures only the cream of the crop are recognized. Yet at the same time, I have always repudiated the whining of women who sit at a political or literary discussion and clean their nails or otherwise primp, who "trust that there is always an arm to cling to," as Woolf would say.
I felt like I had been hit by a cold iron when the summarizing article from The Guardian (always printed at the end in this speech series) raised the objectivity of Woolf. My blood raged when he noted that men have also suffered from financial hardship in history, but have overcome it. It seemed very clear to me that this was motivated by a misogynist attempt to discredit Woolf. (He disdainfully concludes his article with an assessment that Woolf always, despite errors in logic, "maintains an unfaltering poise.")
However, the reviewer does have a point about the emotion with which she speaks. Indeed, women have not done poorly solely because of the material constraints that they faced: they seem, by their very nature, to have scuttled away from the limelight and retreated at the slightest sign of resistance. Indeed, men in 1928 could proudly say that they had done much to advance the cause of women - including granting them the vote less than a decade earlier (and the worries of minorities who seem to be progressing but still aspire to parity is often dismissed as whining at the expense of more pressing problems).
The reviewer's overlooked point is that this is the female second nature - the one shoved at them by society. It is not in the first nature of a woman to primp during an intellectual discussion. But a man would be scorned for doing so, while a woman would only be discouraged with a condescending smile and sigh; and women have been taught to appreciate the condescending smile of their male guardians.
But even a socially imposed disadvantage can only be stretched so far into martyrdom. For one fearful moment, I worried that even moderate feminists like Woolf, who empowered women to act rather than whining, were on par with the crazed and single-minded head of PETA. Since we cannot hope to think entirely outside our own experience, we may victimize ourselves more than is fair - and, going below the PETA level, we may do so as an excuse not to act. Primping girls may take the condescending smile as a reassurance that they need not struggle to grasp the meaning of the discussion in order to please.
Yet the reviewer conveniently ignored that Woolf herself acknowledges the passivity of women and urges them to action in a stirring peroration.
But, even if more could be said to supplement Woolf's analysis, I do think that civil conventions demand tolerating some exaggeration (though that is not quite the issue here) and some single-minded "framing" of one's subject in a public speech. The author of this article violated that convention.
[Perhaps I should note, I'm listening to Frank Sinatra right now - which just maddens a woman already in a feminist frame of mind.]
As it turns out, these views are very similar to my own. I have always been angered by the hump that women must climb before they can succeed like men. It is not an insurmountable slope, but one that ensures only the cream of the crop are recognized. Yet at the same time, I have always repudiated the whining of women who sit at a political or literary discussion and clean their nails or otherwise primp, who "trust that there is always an arm to cling to," as Woolf would say.
I felt like I had been hit by a cold iron when the summarizing article from The Guardian (always printed at the end in this speech series) raised the objectivity of Woolf. My blood raged when he noted that men have also suffered from financial hardship in history, but have overcome it. It seemed very clear to me that this was motivated by a misogynist attempt to discredit Woolf. (He disdainfully concludes his article with an assessment that Woolf always, despite errors in logic, "maintains an unfaltering poise.")
However, the reviewer does have a point about the emotion with which she speaks. Indeed, women have not done poorly solely because of the material constraints that they faced: they seem, by their very nature, to have scuttled away from the limelight and retreated at the slightest sign of resistance. Indeed, men in 1928 could proudly say that they had done much to advance the cause of women - including granting them the vote less than a decade earlier (and the worries of minorities who seem to be progressing but still aspire to parity is often dismissed as whining at the expense of more pressing problems).
The reviewer's overlooked point is that this is the female second nature - the one shoved at them by society. It is not in the first nature of a woman to primp during an intellectual discussion. But a man would be scorned for doing so, while a woman would only be discouraged with a condescending smile and sigh; and women have been taught to appreciate the condescending smile of their male guardians.
But even a socially imposed disadvantage can only be stretched so far into martyrdom. For one fearful moment, I worried that even moderate feminists like Woolf, who empowered women to act rather than whining, were on par with the crazed and single-minded head of PETA. Since we cannot hope to think entirely outside our own experience, we may victimize ourselves more than is fair - and, going below the PETA level, we may do so as an excuse not to act. Primping girls may take the condescending smile as a reassurance that they need not struggle to grasp the meaning of the discussion in order to please.
Yet the reviewer conveniently ignored that Woolf herself acknowledges the passivity of women and urges them to action in a stirring peroration.
But, even if more could be said to supplement Woolf's analysis, I do think that civil conventions demand tolerating some exaggeration (though that is not quite the issue here) and some single-minded "framing" of one's subject in a public speech. The author of this article violated that convention.
[Perhaps I should note, I'm listening to Frank Sinatra right now - which just maddens a woman already in a feminist frame of mind.]
Friday, June 27, 2008
Culmination of Detainee Thoughts I
Several key ideological issues separate my own views from those of Ben Wittes, my employer. The ironic part is that Ben thinks that his own view is pragmatic and essentially non-ideological.
First, Ben harbors a deep-seated fear of judicial power. He senses sinister motives around every dismissal for want of jurisdiction, every constitutional question left unanswered - nearly every ruling on process rather than the merits. At the same time, he scorns any judicial interference on a detailed, policy-making level.
Many would - as Seth Waxman does - contend that this approach is contradictory. Ben wants the courts to do both less and more. Yet there is no necessary contradiction: Ben merely wants the courts to evaluate the adherence to rules, and not to administer those rules themselves. Therefore he gets nervous when courts are less than fully transparent and thus leave open to themselves the possibility of crafting further, and more detailed, rules. In fact, he acknowledges this in his book with a chapter entitled "The Necessity and Impossibility of Judicial Review."
Yet, while I see no contradiction, I still think that Ben's fears may be gratuitous. After all, he trusts the executive with more open-ended authority. The courts have, historically, paused before doing much more than craft very abstract rules, and even these do not depart too much from popular, slowly evolving sentiment. I think the court's ruling in the series of Gitmo cases reflects not an attempt for them to "carve a seat for themselves at the table." I actually think that judges do not hunger for power in the same way that politicians may. They are already influential, and are usually satisfied to simply deliver the final word on cases. While I think the opponents of judicial activism may be right that judges will decide cases based on their preconceived notions about outcomes - thus taking the opportunity that arises to decide an issue as they personally see fit - I'm not so sure that judges are thinking about the bigger picture of power.
But I think Ben may have some valid points. What is it about the structure of the courts that gives Ben pause to delegate authority to them? Since judges are usually appointed not elected, it could be their lack of democratic underpinning. (Yet at the same time Ben opposes many of the political strategies to hamper judicial nominations and appointments.)
He sees the judicial-congressional dialogue as an inefficient one that prevents thoughtful, unified crafting of policies. This can - as in the case of the California Supreme Court ruling on gay marriages - disrupt a historical legislative-popular dialogue and other, more organic processes.
This reason seems persuasive to me.
Yet I believe Ben also thinks that a legal society should be contained and as organic (democratic?) as possible. None of this Platonic guardianship for him. This is an expanded version of the idea that I have articulated above about legislative-popular dialogues. This is also why he dislikes the influence of foreign law in the US. He generally has pretty low regard for international treaties and agreements. (Although his writings suggest a cautious attempt not to trample on too many feet in this controversial arena, and he generally tries to read US law in conformity with international commitments anyway.) This is why he opposes Justice Breyer's advocacy for citing (and perhaps using, though I'm not clear on this point) foreign law precedent in domestic court decisions. It certainly seems coherent to think that, as American law evolves, it should evolve according to the standards of the governed rather than the standards of foreign peoples who are not under its jurisdiction anyway.
However, I am not altogether persuaded by this point. While I admit its coherence, I am just honestly more of a Platonist than Ben, in a narrow sense. I tend to think that, while it is important that a court's decisions favor its people's standards, I am not generally excited about codifying the standards of one group of people - say the majority - in law that forces others to comply. Accordingly, I am willing to cite whatever authority (even if it is abroad) that favors civil liberties over the substantive will of the governed population. (Of course this doesn't extend to the codification of foreign substantive practices.)
Our views diverge even more on the issue of executive power. Especially in the conduct of war, Ben scorns the attempt of the courts to intervene in executive decisions. Certainly the comparative lack of information and expertise of the courts is beyond doubt. Moreover, the threat of internal divisiveness is real: a power struggle between two equal branches during a time of national crisis could be disastrous to efficient and effective action.
More specifically, Ben and I may differ on how severe the national conflict must be before we defer to the executive. While Ben is content to let the executive rule with many freedoms in any time of "war," I'm only ready to start tipping the balance of power when we approach a genuine "national crisis." We may technically be "at war" in the current counterterrorism initiative, but I think many Americans find the label "war" to be an exaggeration insofar as there seems to be no imperative threat to our national integrity (as opposed to mere security). I am torn, because I know that even the greatest, integrity-threatening al Qaeda plot might only be anticipated as a threat to security. But I generally agree with the civil liberties activists, especially with regard to Guantanamo.
Many of us are willing to concede that the Gitmo detainees may pose a nontrivial threat to national security, individually. Yet Ben also regards the hassle to the executive in providing full civilian trials as a threat to national security, and thus worthy of deference to the executive. Even this is a tricky point, since he wants to provide increased procedural safeguards for the detainees. More than anything, I think he wants the rules settled beforehand, so they are predictable for the executive's use.
Thus the contentious issue is about as simple as the way we weigh national interests versus civil liberties. Many of us value civil liberties for all people so much that we are willing to give up a little security for their sake (Benjamin Franklin notwithstanding). When Ben asks the question, "What if the number of dangerous individuals is 120 rather than 5?" I think this evades the tougher question: "What if the number of dangerous individuals is 60?" That number is probably the more realistic one, anyway.
Ultimately, I think Ben is not substantively far from the views of many of us. The problem is that, in order to combat the extreme rhetoric of human rights groups, he often adopts his own extreme rhetoric. Yet even that rhetoric is underpinned by some genuine convictions about the trustworthiness of our government.
First, Ben harbors a deep-seated fear of judicial power. He senses sinister motives around every dismissal for want of jurisdiction, every constitutional question left unanswered - nearly every ruling on process rather than the merits. At the same time, he scorns any judicial interference on a detailed, policy-making level.
Many would - as Seth Waxman does - contend that this approach is contradictory. Ben wants the courts to do both less and more. Yet there is no necessary contradiction: Ben merely wants the courts to evaluate the adherence to rules, and not to administer those rules themselves. Therefore he gets nervous when courts are less than fully transparent and thus leave open to themselves the possibility of crafting further, and more detailed, rules. In fact, he acknowledges this in his book with a chapter entitled "The Necessity and Impossibility of Judicial Review."
Yet, while I see no contradiction, I still think that Ben's fears may be gratuitous. After all, he trusts the executive with more open-ended authority. The courts have, historically, paused before doing much more than craft very abstract rules, and even these do not depart too much from popular, slowly evolving sentiment. I think the court's ruling in the series of Gitmo cases reflects not an attempt for them to "carve a seat for themselves at the table." I actually think that judges do not hunger for power in the same way that politicians may. They are already influential, and are usually satisfied to simply deliver the final word on cases. While I think the opponents of judicial activism may be right that judges will decide cases based on their preconceived notions about outcomes - thus taking the opportunity that arises to decide an issue as they personally see fit - I'm not so sure that judges are thinking about the bigger picture of power.
But I think Ben may have some valid points. What is it about the structure of the courts that gives Ben pause to delegate authority to them? Since judges are usually appointed not elected, it could be their lack of democratic underpinning. (Yet at the same time Ben opposes many of the political strategies to hamper judicial nominations and appointments.)
He sees the judicial-congressional dialogue as an inefficient one that prevents thoughtful, unified crafting of policies. This can - as in the case of the California Supreme Court ruling on gay marriages - disrupt a historical legislative-popular dialogue and other, more organic processes.
This reason seems persuasive to me.
Yet I believe Ben also thinks that a legal society should be contained and as organic (democratic?) as possible. None of this Platonic guardianship for him. This is an expanded version of the idea that I have articulated above about legislative-popular dialogues. This is also why he dislikes the influence of foreign law in the US. He generally has pretty low regard for international treaties and agreements. (Although his writings suggest a cautious attempt not to trample on too many feet in this controversial arena, and he generally tries to read US law in conformity with international commitments anyway.) This is why he opposes Justice Breyer's advocacy for citing (and perhaps using, though I'm not clear on this point) foreign law precedent in domestic court decisions. It certainly seems coherent to think that, as American law evolves, it should evolve according to the standards of the governed rather than the standards of foreign peoples who are not under its jurisdiction anyway.
However, I am not altogether persuaded by this point. While I admit its coherence, I am just honestly more of a Platonist than Ben, in a narrow sense. I tend to think that, while it is important that a court's decisions favor its people's standards, I am not generally excited about codifying the standards of one group of people - say the majority - in law that forces others to comply. Accordingly, I am willing to cite whatever authority (even if it is abroad) that favors civil liberties over the substantive will of the governed population. (Of course this doesn't extend to the codification of foreign substantive practices.)
Our views diverge even more on the issue of executive power. Especially in the conduct of war, Ben scorns the attempt of the courts to intervene in executive decisions. Certainly the comparative lack of information and expertise of the courts is beyond doubt. Moreover, the threat of internal divisiveness is real: a power struggle between two equal branches during a time of national crisis could be disastrous to efficient and effective action.
More specifically, Ben and I may differ on how severe the national conflict must be before we defer to the executive. While Ben is content to let the executive rule with many freedoms in any time of "war," I'm only ready to start tipping the balance of power when we approach a genuine "national crisis." We may technically be "at war" in the current counterterrorism initiative, but I think many Americans find the label "war" to be an exaggeration insofar as there seems to be no imperative threat to our national integrity (as opposed to mere security). I am torn, because I know that even the greatest, integrity-threatening al Qaeda plot might only be anticipated as a threat to security. But I generally agree with the civil liberties activists, especially with regard to Guantanamo.
Many of us are willing to concede that the Gitmo detainees may pose a nontrivial threat to national security, individually. Yet Ben also regards the hassle to the executive in providing full civilian trials as a threat to national security, and thus worthy of deference to the executive. Even this is a tricky point, since he wants to provide increased procedural safeguards for the detainees. More than anything, I think he wants the rules settled beforehand, so they are predictable for the executive's use.
Thus the contentious issue is about as simple as the way we weigh national interests versus civil liberties. Many of us value civil liberties for all people so much that we are willing to give up a little security for their sake (Benjamin Franklin notwithstanding). When Ben asks the question, "What if the number of dangerous individuals is 120 rather than 5?" I think this evades the tougher question: "What if the number of dangerous individuals is 60?" That number is probably the more realistic one, anyway.
Ultimately, I think Ben is not substantively far from the views of many of us. The problem is that, in order to combat the extreme rhetoric of human rights groups, he often adopts his own extreme rhetoric. Yet even that rhetoric is underpinned by some genuine convictions about the trustworthiness of our government.
Tuesday, June 3, 2008
Lithwick v. Wittes
Well, it was perhaps more of a conversation than a debate, but it was provocative.
Some important points:
The realization that, in creating a legal system, we do calibrate our laws to the situation. We would not want to have trials in which no one was convicted, and thus we may end up changing our laws in ways to achieve that. Ben points out a useful contrast with the Nuremberg trials and those at Guantanamo: in Nuremberg, any trial was a concession, whereas at Gitmo our baseline is a civilian trial.
Lithwick did not actually have a point of clash with Ben's view (part of this, of course, is because Ben is rather moderate and likes the image of the radical more than the argument of him - unlike many people). However, she staunchly held that, "after waterboarding is in the picture, all bets are off" because you can't salvage anything from the previous legal procedure - essentially, you can't put on trial any of the tortured detainees. I don't quite understand this argument, because she also agrees that we shouldn't have wholly civilian trials state-side.
Ben made a great point that Scalia tends to have as much - or more - empathy with victims as do the liberal justices on the Supreme Court. He simply defines victimhood differently than the rest of us might.
I always admire that Ben is able to catch liberals in their rhetoric, when they have latched onto a side of an issue because of the particulars of the short-term, rather than because it is right in the details, the philosophy, or the long-term. That I truly respect.
Some important points:
The realization that, in creating a legal system, we do calibrate our laws to the situation. We would not want to have trials in which no one was convicted, and thus we may end up changing our laws in ways to achieve that. Ben points out a useful contrast with the Nuremberg trials and those at Guantanamo: in Nuremberg, any trial was a concession, whereas at Gitmo our baseline is a civilian trial.
Lithwick did not actually have a point of clash with Ben's view (part of this, of course, is because Ben is rather moderate and likes the image of the radical more than the argument of him - unlike many people). However, she staunchly held that, "after waterboarding is in the picture, all bets are off" because you can't salvage anything from the previous legal procedure - essentially, you can't put on trial any of the tortured detainees. I don't quite understand this argument, because she also agrees that we shouldn't have wholly civilian trials state-side.
Ben made a great point that Scalia tends to have as much - or more - empathy with victims as do the liberal justices on the Supreme Court. He simply defines victimhood differently than the rest of us might.
I always admire that Ben is able to catch liberals in their rhetoric, when they have latched onto a side of an issue because of the particulars of the short-term, rather than because it is right in the details, the philosophy, or the long-term. That I truly respect.
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