quote:President Bush effectively blocked a Justice Department investigation of the National Security Agency's warrantless surveillance program, refusing to give security clearances to attorneys who were attempting to conduct the probe, Attorney General Alberto R. Gonzales said yesterday.
Bush's decision represents an unusually direct and unprecedented White House intervention into an investigation by the Office of Professional Responsibility, the internal affairs office at Justice, administration officials and legal experts said. It forced OPR to abandon its investigation of the role Justice officials played in authorizing and monitoring the controversial NSA eavesdropping effort, according to officials and government documents.
Article goes on to give the Admin/GOP response which is that the origin of the probe was political anyway (since a bunch of Dems and one independent had called for it). And besides, senior people in the Adminstration (including Alberto Gonzales) review the program every 45 days to be sure it's not straying into illegal territory. Arlen Spector says that every clearance granted raises the probability of leaks.
Doesn't say much for their view of integrity at Justice (or at least of OPR within Justice), or of their own ability to conduct good background checks.
Or, of course, it's just possible that the thing they are protecting is their own backsides.
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quote:"In all those years[ 31 years], OPR has never been prevented from initiating or pursuing an investigation."--OPR chief lawyer, H. Marshall Jarrett
So this is the only OPR investigation that was stillborn. At Bush's behest. I guess he does believe in abortion. And the "it's too classified" excuse is lame--OPR has handled information "classified at the highest levels" according to Jarrett. The next excuse of limiting access to a few select individuals doesn't fly either:
quote:Jarrett noted that clearances were granted to lawyers and agents from Justice and the FBI who were assigned to investigate the original leak of the NSA program's existence to the media. He also noted that numerous other investigators and officials -- including members of Congress and the members of a federal civil liberties board -- had been granted access to or had been briefed on the program.
It's a White House white-wash, alright. If Senate Judiciary Committee chairman Arlen Specter would only have the guts to keep after the administration, instead of talking tough one week then backing down the next! Posts: 6316 | Registered: Jun 2003
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Since when do suspects get to pick which police are allowed to investigate?
"Yeah, I know you think I robbed the Quickie-mart. I want my cousin Vinny to be the cop in charge of the investigation."
ps. Actually, this may be a tactic by Specter. If he were to come out swinging hard at Gonzales over this, then he loses Republican support. On the other hand, he forces Gonzales to admit this is what happened, then he leaves it to the press to dig up the facts, and to attack the White House. If its an attack that has momentum, he can come back and take credit for uncovering the cover-up. If it flips and flops like the banking transaction scare, he is clear.
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This is so scary! Bush is scary! When is this guy leaving office? Please let it be soon. This reminds me of the Stasi.
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Nope, because he doesn't need to worry about us. Why pick us up for disloyalty when it doesn't matter what we think?
I don't think we've reached Bush-as-dictator yet. I do think that this adminstration is chugging along a dangerous road of top-heavy power and unaccountability.
Dagonnee, before the inevitable begins and this thread turns into an argument over whether this was legal or not -- I have no doubt it was legal, but that's not what people in the thread are going to be upset over -- I'd be interested in hearing your take on it. Twice, actually; once as a lawyer and once as a United States citizen.
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Unaccountability? Bush has obeyed the SCOTUS rulings that have gone against him. His spending is decided by Congress. There's an election in 4 months and he'll be out of office in 2 and a half years.
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I wonder if Bush'll try to scare the country into staying the course with him at the helm. Or he'll just make an executive decision to abolish term limits and declare himself dictator for life.
It'll never be over!!
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quote:Dagonnee, before the inevitable begins and this thread turns into an argument over whether this was legal or not -- I have no doubt it was legal, but that's not what people in the thread are going to be upset over -- I'd be interested in hearing your take on it. Twice, actually; once as a lawyer and once as a United States citizen.
Hatrack is no longer a place where I feel it productive, fun, or safe to discuss certain aspects of my opinion on politics.
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Kat, let's not get hysterical. Bush, for all his faults, has given no indication of defying the 2-term amendment (whichever it is.)
Yes, Dag, Bush has obeyed SCOTUS rulings. But he has certainly demonstrated unaccountabilty in his and his aides very broad views and policies of over-arching executive powers. Like the laughable interpretaion that the narrow congressional vote to go to war in Afghanistan was really a vote authorizing him to bypass FISA.
And his use of signing statements to neuter laws he disagrees with, like McCain's torture bill. And dozens of other ways Bush has expanded the power of the president.
Surely you see that unaccountable is a polite way to phrase "massive power grab?" You said yourself in the stem cell thread that Bush has had "a remarkably pliant congress of his own party for the 5 and a half years he's been in office." So if he's not accountable to Congress, isn't that halfway to unaccountable?
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quote:Originally posted by Dagonee: Hatrack is no longer a place where I feel it productive, fun, or safe to discuss certain aspects of my opinion on politics.
I'm sad to hear that as well.
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quote:Yes, Dag, Bush has obeyed SCOTUS rulings. But he has certainly demonstrated unaccountabilty in his and his aides very broad views and policies of over-arching executive powers.
Accountability isn't about how much power one has, it's about who one has to account to for its use and how. We have safeguards in place, safeguards that are fully operational and working. These include Congress, the courts, and the people.
quote:Like the laughable interpretaion that the narrow congressional vote to go to war in Afghanistan was really a vote authorizing him to bypass FISA.
The Supreme Court - a majority including both liberals and conservatives - interpreted that bill to authorize the indefinite detention of American citizens with minimal judicial review and no criminal proceedings. Given that as a precedent, it's certainly not a reach to conclude that a bill whose goal is to prevent another attack in the U.S. by use of military operations would cover signal intelligence into the U.S.
To legitimately call it laughable, you have to somehow account for the SCOTUS ruling in Hamdi.
quote:And his use of signing statements to neuter laws he disagrees with, like McCain's torture bill. And dozens of other ways Bush has expanded the power of the president.
How is it "expansion" to do something done hundreds of times by the last three presidents?
quote:You said yourself in the stem cell thread that Bush has had "a remarkably pliant congress of his own party for the 5 and a half years he's been in office." So if he's not accountable to Congress, isn't that halfway to unaccountable?
Not in a democracy. The people have put an undivided government in place and have the ability to hold all of them to account.
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Only indirectly -- by voting them out after they screw up, or by voting out representatives who will then try to hold others to account if they are not stonewalled or simply ignored. The closest thing to an immediate method of calling an adminstration to task is the press.
I don't claim that anything that has been done by this administration has been illegal or even something never performed by other adminstrations. I don't think Republicans are doing anything different than what Democrats have done in the past (although I suspect they do it harder ). But, as I did then, I can express my dismay and fear that this country is moving in a direction that I believe to be ethically wrong.
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Dag, I bow to most points of law when you comment, but I disagree that my analogy was wrong. You claim that this was not a crimminal investigation, but it was an investigation to determine if anything crimminal was going on.
Sure, my analogy could be more accurate--"We have a video tape of you taking money from the Quickie Mart till. We think you robbed it." said the police. "No I didn't. It was perfectly legal, at that time, for me to take that money. I was going to deposit it in the bank for Mr. Quickie." the young man answered. "We need to investigate this to make sure you were not robbing the place." the police respond. "OK," said the youth, "but I think my cousin, Sgt Vinny, who owes me $500 for last month's rent, should be the cop who does the investigation."
But the flavor is the same as above. President Bush gets to choose who determines if what he is doing is legal. That is a major conflict of interest.
Further, he didn't tell us the truth when the investigation was first denied. While this is not illegal, it does demonstrate the lack of facts many people find worrisome about this administration. When President Bush says, "Trust me, we made sure its legal" we find it harder and harder to trust him.
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To see if the lawyers who advised Bush gave proper legal advice. They are a Professional Responsibility Office - they don't do criminal investigations.
And, to be clear, there's lots of improper legal advice that does not give rise to criminal liability.
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Dag....you have no problem with the way this went then? If this is a non-issue event, why is there an office to investigate things like this at all?
Was Bush right to stop their investigation before it started?
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So what your saying Dag is this is more of an Enron type investigation thing. FTC shows up at Enron's door and says, "We want to take a look at your books to make sure you're accounting is legit." and Ken Lay answers "Nope. Go away. We have a Anderson Schmidt accounting working for us. They'd never do anything illegal for us, no matter how much we pay them. Trust us."
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Dag, I'm just curious what recourse, in a government with as strong an executive branch as you seem to favor, the populace would have to punish and research wrongdoing by that branch in between election years.
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Given our government's history and structure, I'm extremely uncomfortable with the Justice Department investigating the Executive branch in the first place. I realize that there may be highly-skilled, a-political technocrats conducting the investigation, but there's still the USAG at the top of the pile and various appontees between the investigators and anything resembling full disclosure.
To be frank, I'd rather that an independent special prosecutor be appointed.
I'd never heard of this office within the JD before this article so I'm not at all clear on their mandate. If they found evidence of criminal activity, for example, would they be required to turn that part of the investigation over, and if so, to whom? Or could they be told that they'd overstepped their authority and that'd be the end of it?
Perhaps Justice is another function I should add to my list of things that we should treat like we do the Fed -- run by technocrats entirely.
Anyway, it's no secret that I'm prepared at all times to assume the worst motives behind Mr. Bush's actions. In this particular case, if they truly feel this was an investigation launched by partisan politics, wouldn't they WANT it to be conducted by an agency they have so much control over? I mean, the alternative to squashing the whole thing IS having it come up again as a Congressional mandate, special prosecutor, etc., isn't it? Depends on if the people who sponsored this effort have enough votes to get something started along an alternative path.
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quote:Dag....you have no problem with the way this went then?
I didn't say that.
quote:So what your saying Dag is this is more of an Enron type investigation thing. FTC shows up at Enron's door and says, "We want to take a look at your books to make sure you're accounting is legit." and Ken Lay answers "Nope. Go away. We have a Anderson Schmidt accounting working for us. They'd never do anything illegal for us, no matter how much we pay them. Trust us."
No, that's not what I'm saying at all.
Bush was not the one being investigated by this. Ken Lay is not imbued with executive power over government investigations.
This is the equivalent of Ken Lay telling someone in Enron to stop looking into their relationship with a particular partner.
Your analogy is flawed in numerous ways. I pointed it out, simply to make it clear that the particular allegation being made were inaccurate.
I have specifically not ventured an opinion on 1) the NSA program except that it may be constitutional; 2) on whether the classifying of information in such a way that OPR cannot conduct its investigation into the professional conduct of justice department lawyers is a desirable act, except to say that it is not the same as a civilian using illegal influence to control law enforcement investigations; and 3) whether I think the current balance of power between the branches is ideal except to say that Bush is clearly not "unaccountable."
quote:Dag, I'm just curious what recourse, in a government with as strong an executive branch as you seem to favor, the populace would have to punish and research wrongdoing by that branch in between election years.
Please be clear. You don't know how strong an executive branch I favor nor what steps I favor for enforcing accountability.
I have specifically not ventured an opinion on 1) the NSA program except that it may be constitutional; 2) on whether the classifying of information in such a way that OPR cannot conduct its investigation into the professional conduct of justice department lawyers is a desirable act, except to say that it is not the same as a civilian using illegal influence to control law enforcement investigations; and 3) whether I think the current balance of power between the branches is ideal except to say that Bush is clearly not "unaccountable."
It's a rather simple principle I wish I could make clear to you: When I venture a particular opinion, especially as regards to the Bush administration, I am choosing the extent of what I say very carefully. When I defend a particular person or entity from a particular charge, I am not making a blanket declaration that the person or entity always acts perfectly.
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Dagonee, when you venture opinions about the Bush administration they must be negative in nature or else you will be pounced on immediately.
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quote:It's a rather simple principle I wish I could make clear to you: When I venture a particular opinion, especially as regards to the Bush administration, I am choosing the extent of what I say very carefully.
Oh, I know that. I just wish you'd show some more guts occasionally. Does it really not occur to you that the logical consequences of your "very careful" positions might be less than desirable? Or have you trained yourself to not care about this?
It disturbs me that you always seem to feel compelled to stake out legal positions that defend the increasingly disturbing actions of our executive branch, and yet refuse to acknowledge that this constitutes a defense of the actions of our executive branch.
As our rights and oversights are slowly and "carefully" defined out of existence, it will be an enormous comfort to all of us to know that narrow legalisms could be used to justify each step down that path.
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I think Dag has his own reasons for being very careful, and shouldn't be attacked for it.
edit: Hmmm, they weren't the reasons I thought, but it's still silly to attack someone for carefully framing opinions, just as off-the-cuff BS shouldn't be praised.
quote:Oh, I know that. I just wish you'd show some more guts occasionally.
It has nothing to do with courage, Tom. But thatnks for speculating.
Considering you haven't even stated an opinion in this thread about anything but me, I wonder why the hell you feel qualified to comment on my "guts."
Oh, I forgot, you knew that the NSA program was impeachment-worthy the day the story broke. Yes, you're very brave.
As to why I won't venture certain opinions here, it's very much related to this willingness to go so far beyond what I've said as to make it unrecognizable. The few times I've made specific criticisms of the Bush administration here, I've seen them quoted - sometimes in other threads - an expanded far beyond my original intent to support positions I don't agree with. Usually with something like "Even Dag says..." If people are going to appeal to me as authority, I'm not going to provide fodder to be misused.
Since, to date, there hasn't been an equivalent misuse of my statements that defend a particular aspect of the administration, I haven't felt the need to limit such defenses.
I very clearly remember an exchange in which I defended a very particular action which ended up with someone saying something like , "You're right! Bush is the best president ever. He's perfect."
It pisses me off to no end. The fact that you're more subtle in your exaggerations of what I say doesn't make you any less manipulative and dishonest, it only makes you better at hiding it.
quote:Does it really not occur to you that the logical consequences of your "very careful" positions might be less than desirable? Or have you trained yourself to not care about this?
Excuse me? The logical consequences of my very careful positions are not less than desirable unless one assumes - as you seem wont to do - that I have no other positions on the matter.
I'm really sick of this attitude, Tom. You have zero evidence to make any assumption about whether less than desirable consequences "occur" to me or whether I care about those consequences.
What I've trained myself to do is to examine the law and to be able to see both sides of a legal argument in great detail - something necessary for anyone who wishes to actually prove a legal point, ever.
quote:It disturbs me that you always seem to feel compelled to stake out legal positions that defend the increasingly disturbing actions of our executive branch, and yet refuse to acknowledge that this constitutes a defense of the actions of our executive branch.
Bullshit, Tom. I'm sorry, but there's no other word for it. When I am making a particular proposition - that action X does not violate law (statutory, constitutional, or case-derived) Y - that is all I am saying. That's not a defense for the action any more than saying killing a dog isn't murder is a defense for dog-killing.
It disturbs me that your grasp on reasoning is so tenuous that you can't wrap your mind around this concept. The other alternative is that you do grasp this and are purposefully ignoring it, which disturbs me even more.
Not every immoral or undesirable action is illegal.
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I look at Dag's posts as an excellent way of forcing me to get my facts straight. He doesn't tolerate vague accusations of menace any more than a hypothetical impeachment court would, and that should tell you a lot about how you need to present your arguments if they are to be taken seriously be anyone who doesn't already agree with you.
"Bush must be stopped because he's always doing stuff like this" will not get you anywhere. "Bush must be stopped because he violated this law, this ruling, and this interpretation" is an accusation with meat in it.
I just read all of Dag's posts with the understood disclaimer "Personal opinions not included."
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Dag, I think you should take it as a compliment that people (including me) so want to know what you think that we are frustrated when we don't get to. Your opinion carries some weight.
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quote:Originally posted by Dagonee: To legitimately call it laughable, you have to somehow account for the SCOTUS ruling in Hamdi.
"It" being the administration argument that the Authorization for Use of Military Force (AUMF), passed September 18, 2001, authorized indefinite ignoring by the NSA of the FISA courts. Dag, I do call it laughable, and here is one argumment why:
quote: In Hamdi, Congress had not established a preexisting statutory scheme governing the detention of enemy combatants. As a result, Congressional intent could be gleaned from the AUMF alone. With respect to the NSA surveillance program, Congress has established a complex statutory scheme, through FISA and its amendments, governing electronic surveillance of U.S. persons for the purposes of gathering foreign intelligence information. There is no indication in the AUMF that Congress intended to authorize the President to ignore an existing statute that established a comprehensive scheme for conducting domestic electronic surveillance. --former CIA general counsel Jeffrey H. Smith
http://mediamatters.org/items/200601270007 The web page has other arguements why Hamdi did not assert that the AUMF is a blank check for presidential power. "Blank check" is even in the opinion! And the more recent Hamdan v Rumsfel case continues to show SCOTUS' view that the AUMF does not bypass other laws.
Here's a quote from the majority opinion in Hamdi:
quote:We have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the Nation ’s citizens. Youngstown Sheet &Tube ,343 U.S.,at 587. Whatever power the United States Constitution envisions for the Executive in its exchanges with other nations or with enemy organizations in times of conflict,it most assuredly envisions a role for all three branches when individual liberties are at stake. Mistretta v.United States, 488 U.S.361,380 (1989)(it was “the central judgment of the Framers of the Constitution that,within our political scheme,the separation of governmental powers into three coordinate Branches is essential to the preservation of liberty ”);Home Building &Loan Assn.v.Blaisdell,290 U.S.398,426 (1934)(The war power “is a power to wage war successfully,and thus it permits the harnessing of the entire energies of the people in a supreme cooperative effort to preserve the nation.But even the war power does not remove constitutional limitations safeguarding essential liberties ”). Likewise,we have made clear that,unless Congress acts to suspend it, the Great Writ of habeas corpus allows the Judicial Branch to play a necessary role in maintaining this delicate balance of governance, serving as an important judicial check on the Executive ’s discretion in the realm of detentions.
http://journals.democraticunderground.com/Vyan/36 So Hamdi asserts a role for the Judicial Branch, as a check against executive power, which the FISA statutes codifies in the case of survelliance. How does that mean that Hamdi supports indefinite bypassing of FISA?
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quote:As our rights and oversights are slowly and "carefully" defined out of existence, it will be an enormous comfort to all of us to know that narrow legalisms could be used to justify each step down that path.
Hmmm. I didn't see this when I first looked at that post.
Once again, nothing I've said justifies any step down any path. The "legalisms" are only "narrow" if one thinks they are a complete analysis of a particular program. As you have no reason to think so at this stage except willful disregard for my words, your opinion on the subject of what my "narrow legalisms" will or won't justify is simply not a pressing concern to me.
quote:"Bush must be stopped because he violated this law, this ruling, and this interpretation" is an accusation with meat in it.
Thank you, Chris.
"Bush must be stopped because actions A, B, and C are bad for the country because of X, Y, and Z" with no mention of legality at all is also an accusation with meat on it, depending on what X, Y, and Z actually are.
In other words, "because it makes us like the Nazis" is almost certainly a meat-lacking accusation, while "because it shows less than proper respect for this specific right of these persons" has meat. Valid arguments to the latter type are that A, B, and C aren't actually happening, or that X, Y, and Z won't result from A, B, and C, or that X, Y, and Z are actually good things. In having that discussion, much of what's important to our country is discussed.
quote:Your opinion carries some weight.
Thank you, Kate. However, this makes me more concerned about potential misuses of those opinions.
quote:Hmmm, they weren't the reasons I thought, but it's still silly to attack someone for carefully framing opinions, just as off-the-cuff BS shouldn't be praised.
Thank you as well, Morbo. I'm curious what you thought those reasons are, if you feel like sharing.
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If you genuinely care about what someone thinks then you don't try to bully and taunt them into making statements.
It's very simple. People come in with exaggerated, misplaced, and improper accusations against the president and Dag basically steps in and says "don't exaggerate", "that isn't proper", or "you aren't complaining about the right person." How in the hell does that make him lacking in guts?
Tom, you are treating Dag like he's sneaking around pretending to be against the president when he's not, like his missives against Jay and Bean Counter are some kind of smoke screen so he can have credibility, and like he has somehow fooled us into believing he is a genuine and concerned conservative when he's really just a schill for Bush. Is that your honest opinion of him?
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quote:In Hamdi, Congress had not established a preexisting statutory scheme governing the detention of enemy combatants. As a result, Congressional intent could be gleaned from the AUMF alone. With respect to the NSA surveillance program, Congress has established a complex statutory scheme, through FISA and its amendments, governing electronic surveillance of U.S. persons for the purposes of gathering foreign intelligence information
There is no need for a "blank check" for Hamdi to support the NSA program. The Hamdi decision stated that Congress authorized the override of one of the two most fundamental protections we as United States citizens enjoy: the Great Writ of Habeas Corpus (the other being jury trials). Further, the interception of enemy communications is far more relevant to military operations than the detention of American citizens on American soil.
The right at issue in Hamdi was far more fundamental, the protection far more explicit in the Constitution, and the core power being exercised was far more related to the specific authority granted.
Hamdan v Rumsfeld does not stand for the proposition that the AUMF didn't authorize anything else. While it's true that "even the war power does not remove constitutional limitations safeguarding essential liberties," it apparently does render them highly mutable. Further, it's not at all clear at the NSA program violates the fourth amendment in any way, whereas what was done to Hamdi clearly violated the right against imprisonment without a suspension of the Writ or a trial by jury.
That's not to say that the contrary position doesn't have constitutional and legal merit. It is to say, however, that this position is not laughable when one truly appreciates the extent of what Hamdi did by finding an act of Congress to be a partial suspension of the writ of habeas corpus when there is no mention of the writ in the act itself.
Somehow, the Court read that act to mean that congress had suspended the writ and also imposed a lengthy set of procedural protections to soften the impact of the writ.
THAT'S a laughable position. However, once that position is precedent, it seems highly plausible that Congress also empowered the president to conduct signal interception which does not violate a clearly established constitutional right when it authorized the use of military force to stop subsequent attacks on American soil.
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Absolutely - it was horrible precedent. I think Scalia and Steven's dissent was right on the money.
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Dag, isn't there an inherent conflict of interest in having the President stop an investigation of a program that he is closely and politcally associated with?
Ken Lay did stop internal investigations of accounting practices--because he was hiding the mess that either he, or others, had created.
The President is head of the executive branch. Almost all investigative organizations are under him. If he can pick and choose when and if his policies are investigated, that puts him precariously close to being above the law. In other words, "All law enforcement is headed by the President, so the President is above all the law."
The Judicial branch has no investigative powers.
The investigative powers of the legislature is severly limited. Is the only ones legally able to force an investigation on presidential doings the legislator?
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quote:If he can pick and choose when and if his policies are investigated
It depends on what you mean by "can." Absent a special prosecutor or other entity declared to be independent of executive control, then yes, the President has the power to stop any executive investigation. The comparisons you've made to other people stopping an investigation have all contained an element of bribery or influence peddling - of outsiders controlling things they shouldn't control. This is a very serious charge, one that amounts to a felony in most states and one that can't be sustained with respect to Bush and the OPR.
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quote: Tom, you are treating Dag like he's sneaking around pretending to be against the president when he's not...
No. I'm treating Dag like I believe -- which I do -- that the President is currently using the law as a smokescreen behind which he and others are chipping away at various freedoms through the establishment of precedent. And by justifying each little chip as "legal" within a specific interpretation of the law's wording (if not intent), lawyers are actually abetting the steady expansion of the executive -- which I, as someone who remains firmly opposed to the necessity of a strong executive or any executive at all, consider absolute anathema to American liberty.
When Dag says "I'm only commenting on whether this is legal or not, and not whether it's moral," the completely natural and understandable response is and should be "well, do you think it's moral?"
And a lawyer who refuses to answer this question, once you grant these premises, is dangerous. Because it's exactly that kind of lawyer and exactly that sort of legal argument that's being used to tiptoe us as a society -- largely unknowingly and often unwillingly -- further down this particular path.
At some point, we have to hope those lawyers will stop and say, "Okay, so it's conceivably legal under the current arrangement, or at least we think we can get the current court to let it slide -- which, by definition, is the same thing. But it's so freakin' corrupt that we, as lawyers, will quit our jobs and demand that the law be changed before we write an opinion justifying this kind of thing."
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But why should he have to offer an opinion on that. Why is he (and only he-- I've never seen this accusation leveled at anyone else, and to be fair to you, you are not the only one who has said it of him) cowardly for simply stepping in and saying "calm down, it's not as bad as you say"? If that's the only opinion he wants to offer, why should he have to offer more to have "guts"?
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quote:When Dag says "I'm only commenting on whether this is legal or not, and not whether it's moral," the completely natural and understandable response is and should be "well, do you think it's moral?"
And a lawyer who refuses to answer this question, once you grant these premises, is dangerous.
Go take a Valium, Tom. I don't represent anyone. If I was contending that legal = moral, then I might be dangerous. But I'm not. In fact, I'm begging you to recognize that I've said legal <> moral dozens of times now.
quote:Because it's exactly that kind of lawyer and exactly that sort of legal argument that's being used to tiptoe us as a society -- largely unknowingly and often unwillingly -- further down this particular path.
No. A lawyer who refuses to indulge in shoddy legal reasoning in order to obtain the policy outcome he desires is dangerous. What's more dangerous are people who encourage lawyers to do so. They're the ones who turn the law into something that chips away at freedom and causes immoral results, because they've decided that their ends are worth corrupting the law.
The decision in Hamdi, joined by all but the two most conservative and the one most liberal justice, is a perfect example of this kind of malleability. And the most conservative and most liberal member of the Court were the only ones to say, "Wait a minute? Are you nuts? The Constitution allows indefinite detention of American Citizens under one and only circumstance, and that's not present here."
The rest (except Thomas, who at least had the balls to say that if Congress did suspend the writ, then Hamdi is out of luck) looked to the purpose of the habeas protection and then decided Congress must have meant to do this, because that's the best policy outcome. Please. It's the exact same mishmash reasoning that results in the court saying, "well, if we think what's being done is as good as a jury trial, we'll allow it, but only if it's not too unfair." It's on the same evolutionary path as Dred Scott, just disguised by the fact that the outcome seems (but really isn't) supportive of civil liberties.
quote:At some point, we have to hope those lawyers will stop and say, "Okay, so it's conceivably legal under the current arrangement, or at least we think we can get the current court to let it slide -- which, by definition, is the same thing. But it's so freakin' corrupt that we, as lawyers, will quit our jobs and demand that the law be changed before we write an opinion justifying this kind of thing."
So I should quit Hatrack? Please stop taking your incoherent rage at the legal profession out on me.
There is nothing to be gained by not acknowledging what the law is. There's everything to be gained by determining if something is legal or constitutional, whether we want it to be done or not, because only then can we identify the gaps left by the Constitution.
Your view of the law is the one that invites corruption, because it says, "We should not apply sound legal reasoning if we do not like the outcome." The fact that your desired outcome is anti-corruption doesn't mean that the law isn't weakened.
The answer to the question "Is X constitutional?" or "Is X legal?" should only take into account those outcomes on which a legal rule is based. The moral advice should be distinct - not necessarily in a different document, but as a clearly separate opinion.
quote:the completely natural and understandable response is and should be "well, do you think it's moral?"
Finally, to return to this, I, unlike you, am not comfortable giving my moral opinion on these matters in a single sentence. It takes time to fully think it out. The absolute unwillingness of some, including you, on this board to accept the boundaries of what I'm willing to discuss make it absolutely necessary to me that I take that time if I'm going to venture a moral opinion on a complicated issue.
You won't change that. Your continued attempts to change that are manipulative and annoying.
Posts: 26071 | Registered: Oct 2003
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Dag, that is why I asked you those questions. I wasn't trying to imply that I already knew what you thought.
I bet you have an idea what I think of the matter, but you might be surprised why I think it.
I understand why you might want to be cautious about expressing an opinion on this, but in this I sort of agree with Tom.....just because something is legal doesn't mean it is right.
I know you feel the same way about some things as well, and I just wanted to know what you thought about some of the other issues raised by these actions.
Sorry if it read like an ambush. I don't do ambushes, not on line anyway. I prefer my on line conflicts a little more...well, honest....than that. Posts: 15082 | Registered: Jul 2001
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quote:I understand why you might want to be cautious about expressing an opinion on this, but in this I sort of agree with Tom.....just because something is legal doesn't mean it is right.
I agree. Which means, if I say something is legal, I'm not saying it's right.
I don't think it was an ambush. It's just not something I want to take the time to formulate fully, and it's not something I feel comfortable discussing without taking that time.
Posts: 26071 | Registered: Oct 2003
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No problem. That IS what I was getting at...that you do not always equate legality with right. I can understand why the distinction is hard to catch at times, but I know better. Posts: 15082 | Registered: Jul 2001
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I find incredible value in learning what is and is not legal, and what is open to question.
I believe the worst of GWB at every turn (yes, DarkKnight, I'm one of those), and I will rarely give him the benefit of the doubt. I don't really need the opinions of others who already look at Bush et al's latest actions as another attempt at ruining America. I already take that as given. What I need is one or more perspectives that tell me why an action might be interpreted differently than what I already assume. I come here and learn that there might be real legal questions surrounding one or another issue, or that there might be motivations other than turning America into a police state.
It really helps.
It helps in ways that hearing an opposing opinion (a la the rabid Bush supporter style) would not. 'Cuz I'm not really able to listen to that (e.g., DarkKnight's little outburst) with anything but a . Now a well-thought-out opinion, that'd be great. And we do get that from various people here from time to time. But that takes real effort. And you can't just go around making people produce that stuff on demand.
As for dangerous lawyers, hell, they're all dangerous.
Posts: 22497 | Registered: Sep 2000
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quote:Why is he (and only he-- I've never seen this accusation leveled at anyone else, and to be fair to you, you are not the only one who has said it of him) cowardly for simply stepping in and saying "calm down, it's not as bad as you say"?
The problem I have is that Dag isn't actually saying "it's not as bad as you say." Dag is quite frequently saying "it's exactly as bad as you say, but we have to let them do it. Because whether it's bad or not, it might well be legal."
I quite frankly don't respect the system that much, and am coming to regard the law as an enemy of freedom. Had I more faith in the American electorate, that might be less of an issue for me.
Posts: 37449 | Registered: May 1999
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quote:The problem I have is that Dag isn't actually saying "it's not as bad as you say." Dag is quite frequently saying "it's exactly as bad as you say, but we have to let them do it. Because whether it's bad or not, it might well be legal."
No, Dag is NEVER saying that.
Posts: 26071 | Registered: Oct 2003
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). But, as I did then, I can express my dismay and fear that this country is moving in a direction that I believe to be ethically wrong.
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. Now a well-thought-out opinion, that'd be great. And we do get that from various people here from time to time. But that takes real effort. And you can't just go around making people produce that stuff on demand.
