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I was previously a constitutional law and civil rights litigator and am now a journalist. I am the author of three New York Times bestselling books -- "How Would a Patriot Act" (a critique of Bush executive power theories), "Tragic Legacy" (documenting the Bush legacy), and With Liberty and Justice for Some (critiquing America's two-tiered justice system and the collapse of the rule of law for its political and financial elites). My fifth book - No Place to Hide: Edward Snowden, the NSA and the US Surveillance State - will be released on April 29, 2014 by Holt/Metropolitan.

Friday, August 18, 2006

The Post Editorial Board tell us how serious, high-minded people should talk about Presidential law-breaking

For the last four years, the Bush administration has deliberately violated multiple laws because it has adopted radical theories which vest law-breaking powers in the President. It also happens to be well on its way to obtaining the power to criminally prosecute journalists for articles they publish about the administration's conduct. And while all of that has been happening, the Washington Post Editorial Board has said virtually nothing about any of it, sitting idly by while the President vests himself with what George Will calls "monarchical" powers that (at least) rival terrorism as a threat to our country, and while Attorney General Alberto Gonzales casually speculates about putting Jim Risen and New York Times editors (and perhaps even the Post's own Dana Priest) into a federal prison, just as his most prominent supporters have been urging.

But at long last, the Post Editorial Board has finally found something to be outraged about -- the fact that the judicial opinion issued by Judge Anna Diggs Taylor yesterday isn't scholarly and "complex" enough for the intellectual tastes of Fred Hiatt. What really matters, says the Post in its unbelievably petty editorial, is not the profound constitutional crisis we face by virtue of a President who believes he has the power to act outside of the law and has been exercising that power aggressively and enthusiastically in numerous ways over five years. No, that is merely a fascinating intellectual puzzle, something for super-smart experts to resolve with great civility and high-minded, complex discussions as they ponder what the Post calls the "complicated, difficult issues" raised by the administration's lawlessness.

To the Post, what really matters here is how impressed law professors are with the complexity and nuance in Judge Taylor's written decision. Condescendingly scoffing at the judicial quality of her opinion is of infinitely greater importance than objecting to the growing extremism and lawlessness to which our country has been subjected.

Complaints of that nature are the province of the lowly, emotional masses -- those whom Jonathan Chait the other day snidely labelled "partisan hysterics" (meaning those who found it objectionable that his magazine defended the vile authoritarian Ann Coulter), in contrast to the open-minded intellectual giants like Chait who so enjoy the high-minded sport of debating all views for fun, including the "clever, interesting, very well-executed" defense of an extremist hate-monger with a following that numbers in the millions. As Chait put it, only "partisan hysterics" care more about "the destination [e.g., stopping presidential lawlessness or condemning hateful extremists] than the journey [meaning the fascinating, self-important process of trying to construct intellectually impressive ways to defend the indefensible]."

Using terms like "law-breaking" and "criminal" and "authoritarian" and "lawlessness" -- why, that is such strident, angry language that is really not necessary. It merely clouds things and prevents high-minded discourse. The fact that a federal court finally made clear what has been evident in plain day for some time -- that the Bush administration is breaking the law in numerous ways because it believes it has the right to do so -- is unimportant to the Post. Thus, when the court ruled (contrary to the Bush administration's clear belief and actions) that we do not live under the rule of a King, the Post says the judge is merely providing lowly "throat-clearing sound bites" that may feed the wild masses but will starve the serious intellect of those who realize what grave and complex matters these are.

Only "partisan hysterics" say that the President broke the law. Serious people -- who appreciate the weighty issues of terrorism which confront the President -- politely say that the program "is at least in considerable tension with federal law" and that it rests on "ever-more uncertain legal ground." What matters is not ensuring that there are consequences for the President's deliberate law-breaking when spying on Americans without judicial approval, but instead, that we "provide firmer legal footing for such surveillance." Thus, a federal court finds that the President has been deliberately breaking the law, violating the Constitutional rights of American citizens, and using radical theories of presidential power which are the opposite of our constitutional framework, and the only thing the Post feels strongly about is that the opinion which explains those findings is neither "careful nor scholarly."

One of the many ironies here is that while the Post editors parade their hunger for a complex, scholarly discussion, they actually have no idea what they are talking about with regard to several of the most critical issues before the court. The Post tells us, for instance, that the administration (oh-so-surprisingly) does not agree with the court's conclusions, "nor is its dispute frivolous," and to prove that, points to "a broad congressional authorization to use force against al-Qaeda" which "the administration argues permits the wiretapping notwithstanding existing federal surveillance." But particularly in the aftermath of Hamdan -- which decisively rejected the administration's view of the AUMF -- the AUMF claim is not even a serious argument. The fact that the Post thinks it is (along with the fact that the Post never even once mentions Hamdan) demonstrates that they are hardly in a position to decree which judicial opinions are "neither careful nor scholarly."

This Editorial, with all of its condescension and self-important open-mindedness to administration law-breaking, illustrates a common character flaw among our political and journalistic elites. In their world, the way you should how show smart and thoughtful and serious you are is to see two or more sides to everything, to treat every argument (especially from the Government) seriously and respectfully and be open to it because your great intellect and non-partisan fair-mindedness allows you to avoid the shrill, definitive conclusions in which the emotional and partisan masses traffic.

This borderline religious belief in the need to be open to every claim is enhanced -- severely -- when it comes to claims made by the Bush administration that are justified with the use of the word "terrorism." Particularly with regard to such matters, we are subjected to an endless parade of self-consciously "serious" journalists, law professors and editorialists who mistake indecision and an inability to take a definitive stand on anything -- along with acquiescence to morally and intellectually corrupt behavior as long as it masquerades under a veneer of high-minded grappling with terrorism compelxities -- as a sign of moral and intellectual superiority.

But not everything has two or more sides. Some issues are complicated, but some are not. And some dangers are profound and grave enough that putting a stop to them is infinitely more important than engaging in fun, intellectual games designed to show how serious and studious and intellectually dexterous one is. Sometimes, the "destination" matters more than the soul-searching, intellectually impressive "journey." Yes, sure, it is true that the judicial opinion issued yesterday is very weak, in places borderline incoherent, in its reasoning with regard to some issues. Anyone can see that. Most everyone who commented on it, including me, pointed that out. But that does not undermine in any way the fact that this President has been systematically breaking the law for no reason other than he thinks that he can, and that judge's rejection of that belief is quite eloquent and powerful. Most importantly of all, it is indisputably correct.

In the scheme of the profound issues our country faces, obsessing about the inartfulness of this judicial opinion is not unlike those who use a laughably grave tone to write articles about fights between Daily Kos diarists or the latest blogger "scandal" while ignoring our national media's grotesque failure to scrutinize meaningfully our government's conduct and claims -- particularly on matters of war and peace or threats to constitutional liberties.

There is nothing commendable or impressive about always being restrained and muddled and ambivalent in one's tone and views. It is not a sign of intellectual prowess to be open-minded to frivolous claims or corrupt and dangerous behavior. And when the claims are particularly frivolous, and when the corruption and dangers reach a certain level of severity, self-important ambivalence -- hospitality to extremist ideas and systematic government law-breaking -- is actually irresponsible, reckless, and morally and intellectually bankrupt.

UPDATE: Thank you to Jon Henke for leaving this comment, which I know will be the reaction of those who fail to see the point (how can you complain that "the Washington Post insist(s) on a substantive and comprehensive legal analysis and conclusion about this vitally important legal issue"?). This was my reply:

It's an issue of priorities, Jon. If you sit on the street corner and watch 3 criminals assault a pedestrian with a gun, and the pedestrian begins screaming in a really shrill and unpleasant voice, and all you do is complain that the victim's voice is unpleasant, you will be engaged in behavior worthy of condemnation, even though what you are saying might actually be true.

Some of the issues before the court are debatable (standing and the First Amendment claims, and some would say the Fourth Amendment claim), but some issues are not debatable (the administration's violation of the law with no excuse). Some parts of the Judge's opinion are poorly reasoned even when her conclusion is right. But between Anna Diggs Taylor's opinion-writing abilities and the fact that we have a President who is systematically violating the law becuase he thinks he can, it is not a difficult challenge to see which is the most important problem. The Post Editorial Board and others appear incapable of making those distinctions.

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