24 November 2008

Arguing from fact, not emotion

On a theological listserv I am on, this exchange took place. I pointed out that all authority comes from God, citing Romans 13:1-2. A colleague responded:

Al-Qaeda claims the same. So has virtually every ruler and government since Austrailopithicus. It's truly refreshing, after eight years of pseudo-religious-nationalistic-imperialism, to have a government-elect that is a bit less presumptuous.

Another colleague wrote this:

Sounds to me like Bush and Al-Qaeda are both right. And since Bush's goals are to institute freedom and Al-Qaeda's goals are to institute world domination of the Muslim religion across the globe, I would say that your assessment of the pseudo-religious-nationalistic-imperialism is 180 degrees out of phase.

And yet a third colleague - whom I would have expected to know better - wrote this:

To claim that Bush’s goals are to institute freedom is to ignore the steady erosion of civil liberties in this country since 2001. The Patriot Act certainly isn’t about instituting freedom. The actions of the last few weeks to allow the Feds to start investigations of people with no need to show cause don’t seem to be about freedom. Warrantless wiretapping. Guantanamo Bay. The consolidation of more and more power in the executive branch. Yes, I am gazing upon the chimes of freedom flashing.

We would be on a very strange spectrum for me to be described as a liberal, but let’s not ignore the shredding of the constitution in the name of security. Let’s not pretend that Bush is above critique.

Well, no one was pretending that Bush is above critique. But AG Michael Mukasey gave a speech last week - well, he tried, anyway - in which he answered the above criticism of the GWOT tactics:

As the end of this Administration draws near, you would expect to hear broad praise for this success at keeping our Nation safe. Instead, I am afraid what we hear is a chorus with a rather more dissonant refrain. Instead of appreciation, or even a fair appraisal, of the Administration’s accomplishments, we have heard relentless criticism of the very policies that have helped keep us safe. We have seen this in the media, we have seen this in the Congress, and we have heard it from the legal academy as well.

In some measure, those criticisms rest on a very dangerous form of amnesia that views the success of our counterterrorism efforts as something that undermines the justification for continuing them. In an odd way, we have become victims of our own success. In the eyes of these critics, if Al Qaeda has not struck our homeland for seven years, then perhaps it never posed much of a threat after all and we didn’t need these counterterrorism policies...

For example, earlier this year, the head of a legal organization that prides itself on what it calls its “nonpartisan approach to the law” gave a speech condemning what he called “the oppressive, relentless, and lawless attack by our own government on the rule of law and our liberty.” According to this person, we live now in a -- “time of repression” where the “word ‘Patriot’ names a statute that stifles liberty,” and where we face “assaults by our government on constitutional rights, the Separation of Powers, and the Geneva Conventions.” You can practically hear the rumble of tanks in the background.

It is interesting—and telling—that even in the published, written version of these remarks by a lawyer, the references and footnotes are not to statutory texts, the Constitution, treaties, or laws. Instead, the author relied on such authorities as the New York Times, the Washington Post, and the New York Review of Books. This style of criticism can be called many things—provocative perhaps, or evidence that the author could be regarded by some as well-read —but what it cannot be called is a reasoned legal critique.

Also completely absent from these remarks, and from many remarks like it, is any fair appraisal of the legal issues actually involved or an acknowledgement of the difficulty or novelty of the legal questions confronted by the Administration lawyers who made these decisions. Nor was there any discussion of the atmosphere in which these decisions were made. I was in New York City when the two planes hit the Twin Towers, and I know what it was like to be in the city at that time. But I cannot speak from any experience of my own to what it was like to be a lawyer in the Justice Department at that time. There must have been almost unimaginable pressure, without the academic luxury of endless time for debate. The lawyers called on to make critical legal judgments at that time – and in real time – certainly had no time to consult the New York Review of Books when looking for answers to these difficult and pressing questions.

If we could only get back to arguing facts instead of opinions and feelings ....

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