For the last week or so, I've been aggressively commenting on Mark Shea's blog, basically arguing that people should refrain from rash judgement about a Justice Department memo (a memo! not a policy! a memorandum!) I've also said that some foreign detainees are not entitled to the protection of the Geneva Conventions, and that all forms of coercion are not torture.
Not for the first time, this revealed the worst tendencies of blog commenters. If you say X, somebody yells at you because although you said X, you "really" mean Y. Your motives get questioned, even though the people don't know you. Insults get thrown that would never be directed toward me in person.
And then there is my least favorite aspect of Internet commentary in general: rank hyperbole. As a part of the continuing torture discussion, Mark compares this memo to the statute giving Hitler plenary powers over the German state. Here's the exact quotation:
Taken seriously, and aggressively pursued and enforced as a course of actual action by the American State, I can see small difference between that statement and the Enabling Act of 1933 which gave Hitler the power to do Whatever He Deemed Necessary for the Security of the Reich.
Please read it in context, as well as his other statements elsewhere on his blog.
The memo argues that a law enacted by Congress is superceded by the president's constitutional authority as commander-in-chief. You can debate that point. You can question the substance of the memo. What you can't do -- logically, at least -- is translate a legal opinion written by a bunch of government lawyers into the birth of an American Third Reich.
Mark asks: "...how ready will we be to sell basic human rights down the river to the first Man on Horseback who promises us bread and safety should things get worse?"
I'd ask: if you're going to wail and moan about a *memo* you don't like, how will you be able to warn people of *real* dangers to society, when people have already inured themselves to your hyperbolic rants?
All I'm asking for is a sense of proportion. Because if you don't have a sense of proportion, you're worse than Hitler, Stalin, and the people who write computer viruses.
Eric,
If the president isn't limited by statute, any statute, when he's commander-in-chief, then how, pray tell, is that different from the powers given to Hitler. Mark didn't say that the memo made Bush into Hitler (in fact he said he wasn't saying that), he was just saying that the opinion in the memo mirrored the act giving Hitler unlimited power in defense of the state. How was Mark wrong.
Dear PTFKAAC,
kindly note that this was not a LAW or even an official POLICY. In order to approach the level of the "Enabling Act," it would have to be a LAW or at least an Executive Order -- neither of which would withstand the natural process of legislation or a court test.
Please! Settle down and have a cool beverage. The nice people in the white coats will bring your cookies and "happy pills" in a little while.
No, it wasn't a LAW. It was, however, a claim about what the LAW already says - namely, that it pretty much gives Bush plenary powers, etc. The attack on Mark doesn't work.
Nobody's attacking Mark, at least not here. I'm taking issue with his general approach to this subject and the specific language he uses.
What we're talking about is a separation-of-powers issue, namely: can Congress issue a law that encroaches on the president's explicit constitutional authority?
Let me give you a very clear hypothetical situation. Suppose Congress passed a law forbidding the president from issuing orders to the military. That is a clear violation of Article II, section 2, clause 1 of the Constitution. The president would not only be within his rights to ignore that law, he would be obligated to do it because of his oath of office.
That is what I understand this memo to be saying: that Congress can pass a law limiting the president's power as the commander-in-chief, but the executive branch cannot be bound by this law.
I am not arguing -- and the authors of the memo do not argue -- that the president can simply ignore any laws he finds inconvenient. Rather, they say that he may disregard any law that encroaches on his constitutionally-mandated power. I am not certain that I agree. But I would rather discuss what the memo actually said, instead of what it might have said if indeed we were slouching toward Berlin.
By the way, Coward, thank you for demonstrating my point that many blog commenters have a hard time grasping the plain meanings of others' words. Read my post and tell me where it says Mark was equating Bush with Hitler. He compared the memo with the German law, and did not say Bush = Hitler. That's how I quoted him, too.
(Clarification: when I said "he would be obligated to do it" I meant "he would be obligated to ignore the illegal law."
I am so relieved at your take on this. I really worry that the liberal left is using the issue of misconduct in Iraq as a smokescreen to make the public forget that we have one chance for a pro life president. I received an e mail from my IL senator, Chris Lauzen, saying pretty much the same thing. (I am not saying Mark Shea is the liberal left!)
Dear Eric,
Your post is precisely why I stopped going on Mark Shea's blog: the repetitive hyperboles got the better of me (whether it was about the "gay brown shirts", the condescending yet virulent opinions, but more importantly his [and his commenters'] habit of developing an inflamatory meaning beyond that of the facts) ... but the happy consequence of that is my newfound addiction to CL: what a great blog you guys have.
Actually I had a couple of thoughts about this whole torture brouhaha here and here. Could you let me know your thoughts when you have time. Thanks!
The President has to obey the law and do what's right. These are not necessarily the same thing although we hope they are not in conflict. Step 1 is to figure out what the law is and what ought to be done. In the context of war this is not a simple question. When armed civilians outside of a military structure engage in combat and terrorist attacks on civilians at home and abroad, the question gets very complex. Resolving these issues requires the administration to think the unthinkable. This has to be done behind closed doors. It would be a shocking sign of incompetence if embarrassing internal memos did not exist. That is why internal deliberations of the Administration must not be subject to public scrutiny.
My advice is similar to Yann the Frenchman's . . . I simply got tired of the level of language used on Mark's blog, not simply by him but by his many commenters. I visit there MUCH less frequently now.
Charles, I'd say appopriate public scrutiny is okay. Otherwise our government officials really will start fashioning the system to benefit themselves; that's the tendency in any organization. But as for your larger point, which I take to be that officials should be able to have a robust internal debate without being second-guessed, I agree completely.
How then do you deal with Jose Padilla, an American citizen, detained in the United States, who is held without bail, without being charged with a crime, and without access to lawyers and denied the right to a speedy trial? How did he get into this situation? he was "designated" by the President as an "enemy combatant" nothing more. The president apparently claims to have the power to do this to you, me and anybody else. How is that not similar to the dictatorial powers ultimately assumed by Hitler?
The claims that the executive branch has made in the Padilla case are not new, and there are precedents to justify them. The president has the authority to designate who is and is not a combatant. You may have read about the case of the German saboteurs caught on American soil who were tried by a military tribunal and executed. Some of the perpetrators were American citizens, but as they were acting as agents of a foreign government, they could be treated as combatants.
Apparently, Padilla was acting on behalf of al Qaeda, a group that the president designated as an enemy of the United States. You may remember that Congress instructed the president to make war against any group or state responsible for the terrorist attacks that month.
I do not know if holding Padilla under these circumstances was the most prudent thing to do. It may have been better to try him for attempted murder, but probably those claims would not have held up in court. So instead of turning him free so he could kill innocent people, he was detained.
Thank you also, Joe, for coming to Catholic Light to demonstrate the "hyperbole" theme of my post. Keep them Hitler comparisons coming! And by all means, use those would-be mass-murderers as your poster boys. I know everyone will sleep safer knowing that Jose Padilla and his friends will be free under a Kerry presidency.
Eric, I'd like to point out some of your own hyperbole in this very post (I'm sure I could find more from your other posts, too):
"If you don't have a sense of proportion, you're worse than Hitler, Stalin, and the people who write computer viruses."
The definition of hyperbole is extravagant exaggeration. If saying that Mark Shea could be worse than Hitler and Stalin isn't extravagant exaggeration, then I don't know what is.
I guess this goes to show how tricky satire and sarcasm on the Internet can be.
Nathan,
Tell me: Do Hitler, Stalin, and the guys that write computer viruses really go together? No? Perhaps then Eric was employing irony.
I will commence using XML-style tags to mark up my posts:
<humorous conclusion>
Because if you don't have a sense of proportion,
you're worse than Hitler, Stalin, and the people who
write computer viruses.
</humorous conclusion>
Those tags don't appear to be conforming.
Something like
<conclusion style="humorous">
</conclusion>
looks better.
Wait 'til the DTD comes out. You'll see.
I have been silently following the discussions and have agreed with you, Eric.
One thing that has bothered me about that whole mess of blogs and comments is that asking for a good solid definition of torture causes people to assume that you are trying to push the limits and/or are for it.
We need more clarity and charity both on the issue.
Mr. Shea has demonstrated a number of ethical lapses that he *has been confronted with multiply* over time, including known falsehoods to achieve a desired end, hyperbole, and false witness.
The problem with the Padilla case, is that unlike the German sabateurs in WWII, he is only alleged to have been involved. Since he has no access to charges, a lawyer, his accusers *or any of his unalienable rights which God has given to all mankind according to the Declaration of Independence*, he might not even know what is going on.
Bush is restrained. I doubt that a Kerry or a Hitlery MacBeth would be. Ted Kennedy has already called all Americans who oppose homosexuality as being "domestic terrorists" That is just one jot of the pen from Mr. Padilla's fate.
Since you can't respond to me without invoking the very hyperbole you accuse Mark of, maybe you could respond to Kevin Miller's observation--without hyperbole, of course?
Circumstances prevent me from taking the time to write more this week, but I just want to say I agree with your arguments, Eric, and I agree that you aren't attacking anyone with hyperbole. Intended extravagant exaggeration as argument and are two different things that I for some reason don't have trouble telling apart.
The last sentence should read "intended extravagant exaggeration and exaggeration as humorous style are two different things that I for some reason don't have trouble telling apart. I put the phrase "e. as humorous style" in HTML brackets to follow Eric's joke and it deleted the text!
Okay, Joe, I'll respond to Kevin: a memorandum is not a law, any more than a sports article is a baseball game. It's an *interpretation*, not something that commands the assent of those who enforce the law.
The memo states that the president's authority as commander-in-chief trumps a congressional law that compromises that authority. They say the 1994 torture law does exactly that. Rather than rending your garments and proclaiming that the Third Reich is at hand, it would be better to argue that the law is binding because it does not compromise the president's authority. (You might be interested to know that I hold to that interpretation, not the memo's.) I'm sure you would agree that a congressional law isn't on the same legal plane as the Constitution, would you?
[Note: Mr. McFaul is a former military lawyer and practicing civilian attorney. He made the assertion that this memo was the equivalent of the Enabling Law that gave Chancellor Hitler his "emergency powers." You can see the whole thing on Mark's blog.]
Thanks, Eric I appreciate the very fair and anlytical reply. I think there is substantial legal support for the statement that the president's power is limited by Congress,(Torture Act) Treaties, (Missouri v Holland) and the Cositution (Steel Seizure cases). Theses weren't analyzed in the memo which suggested to me a very bad one sided memo and I see the President is backing away from the memo now and will have it redrafted.
I do admit I'm suprised, but you may also be surprised at my harshest criticism of the memo. The Field Manual 30-15 for prisoner interrogation indicates that the people at the sharp end of the spear see no particular need to "torture" or otherwise inflict any unusual pain upon captives. The memo suggests that Military members who depart from the manual may claim some derivative power from the President, but it is far more likely that they will potentially expose themselves to UCMJ liability and that's grossly unfair to the military who do not have all the "defenses" that the memo suggests the President has.
Also I do believe in inflicting extreme emotional distress on those who are part of the resistance in Iraq. (surprised?) In my lay opinion, that is best inflicted upon armed resistance fighters by marine snipers at 600 meters with nightscopes. Interrogation of terrified survivors will be fruitful in many cases. My gripe (also admittedly far outside my expertise) is that we didn't invade with enough troops so there is a shortage of snipers and other combat troops necessary to secure all cities, protect the supply lines and the Iraqi infrastructure. I think we should have had two or three times as many troops as we have there now.