Orin Kerr and the responsibility of elites for the last eight years

There is no virtue in having treated the radicalism and lawlessness of the Bush era as though it were reasonable, decent and worthy of respect


Glenn Greenwald
November 9, 2008 6:40PM (UTC)

I'm going to address once more the multiple-post exchange I've had over the past several days with George Washington University Law Professor (and Fourth Amendment specialist) Orin Kerr, because it is highlighting a much broader and more important point I want to make about the responsibility of American opinion-making elites and legal experts for the abuses and anti-constitutional assaults of the last eight years. 

Yesterday, Kerr purported to respond again to what I wrote about his record of commentary on Bush legal theories -- and his status as, to use my original phrase, "a leading apologist for many (though not all) of the lawless and radical Bush policies of the last eight years."  He responded by lopping off the last part of what I wrote yesterday (point 8 here) and then completely distorting my point (emphasis in original):

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If I understand Greenwald correctly, I deserve condemnation for taking arguments seriously: in his words, I "reasonably debat[ed] these actions as though they were legitimate, as though support for those policies was worthy of serious and respectful consideration." In other words, I was an apologist for lawless and radical Bush policies even when writing posts that rejected them. By rejecting positions through reason rather than invective, I legitimated the positions I rejected.

I think Greenwald has it exactly backwards, though.  If you actually want to persuade folks who haven't made up their mind already on ideological grounds — that is, the crowd that is open to persuasion --invective won't cut it. You need real arguments, and you need credibility, and you can get that only by taking arguments seriously and evaluating them on the merits free of insults and abuse. You don't need to express "outrage" to make the point; in fact, outrage only takes away from it. My approach doesn't sell a lot of books, I realize, but I think it does get to the bottom of things.

In any event, if Greenwald's indictment is that I treated arguments with respect, argued ideas rather than people, and reached the merits without dismissing opponents out of hand, then I happily plead guilty.

That's not even close to what I've argued or what I believe.  One more time:  what makes Kerr (and others like him) an apologist for radical and lawless Bush policies is that he has defended such policies -- not all of them, as I stated explicitly from the start, but many of the worst ones, including, as but one illustrative example, the Bush administration's reprehensible, ongoing detention of Ali Saleh Kahlah al-Marri, based on the broader theory that the President has the authority to order even U.S. citizens (and legal residents) on U.S. soil imprisoned as "enemy combatants" indefinitely without charging them with crimes and without having to prove them guilty in courts of law.

Thus, Kerr -- on both policy and legal grounds -- has expressly defended what is probably the single most flagrant assault by the Bush administration on core constitutional guarantees:  namely, the assertion that the President has the power to detain indefinitely anyone even inside the U.S. without charging them with a crime and without a trial.  Coincidentally, The Washington Post today has an article on the possible Supreme Court resolution of al Marri's claims, and says this:

Ali Saleh Kahlah al-Marri was close to going on trial for fraud when prosecutors marched into an Illinois courtroom with a demand. Dismiss the charges, they said, because President Bush had just designated the defendant an enemy combatant.

Marri's attorneys protested, but U.S. Attorney Jan Paul Miller declared that the military had already taken custody of the Qatari national, now deemed an al-Qaeda sleeper agent. "There is no longer a judicial proceeding before this court," he said.

With that, Marri was whisked to a Navy brig in Charleston, S.C., where he has spent more than five years. His case raises a question with vast implications for presidential power and civil liberties: Can the military indefinitely detain, without charge, a U.S. citizen or legal resident seized on U.S. soil? . . .

A prominent group of former judges and Justice Department lawyers, along with retired military officers, filed briefs backing Marri's position. They include Maj. Gen. Antonio M. Taguba, who led the Army's first official investigation into abuses at Abu Ghraib prison in Iraq.

The ruling supporting Bush is "a grave threat to the civil liberties of American citizens," said the brief submitted by people including former attorney general Janet Reno and former federal judge Abner Mikva, a longtime mentor to President-elect Barack Obama.

If defending that -- what The Post calls "one of the broadest and most controversial assertions of executive authority since the Sept. 11, 2001, attacks" -- doesn't make one an apologist for radical and lawless Bush policies, what does?   As both the Fourth Circuit's majority and dissent in al Marri agreed, whatever detention powers the administration has over someone like al Marri applies exactly equally to U.S. citizens on U.S. soil.  Thus, one who defends the administration's claimed power to detain al Marri without charges and without a trial (as Kerr did) is, by definition, defending the administration's power to treat U.S. citizens on U.S. soil in the same way.

Whether one defends such dangerous radicalism with sober, polite academic discourse (as Kerr, John Yoo and Bill Kristol do) or with shrill, invective-driven bombast (as, say, Rush Limbaugh, John Bolton, Andy McCarthy and Sean Hannity do) doesn't alter the fact that one is legitimizing, defending and serving as an apologist for anti-constitutional extremism.  That also applies to Kerr's defense of the vastly expanded unchecked surveillance powers in the Protect America Act and his defense of telecom immunity (it's true that these various policies entail varying degrees of radicalism, though they are all grounded in the same worldview) .

* * * * * 

I haven't argued, and don't believe, that discussions of these matters should be driven by invective rather than reason.  That's a transparent and ludicrous strawman Kerr creates in order to depict himself as doing nothing more than defending substance-based discourse and to depict my argument as a demand that commentators dispense with substance in favor of "invective."  That's not what I believe or what I do.  Passion and substance aren't mutually exclusive.

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I doubt there are many people, if there are any, who have written more than I have about the legal and constitutional aspects of the eavesdropping controversies and the more general Article II claims which have been invoked by Bush officials and defenders to justify them -- particularly to a largely non-legal readership.  My first book was devoted primarily to an examination of those legal and constitutional arguments, court precedents and designs of the Founders, and I literally spent almost every day of the first year of my blog, and countless days since, writing about the constitutional and other legalistic arguments demonstrating the extremism and lawlessness of the Bush administration (see here for a compendium of the legal analyses I've written on the Bush defenders' FISA and Article II arguments; here and here on the legality of Bush's detention and interrogation programs; here, here and here on the legal and factual aspects of the al Marri case specifically; here and here on Hamdan, habeas corpus, and military commissions, etc.).  Kerr himself has spent ample time in the past disputing those substantive anti-administration arguments.

Beyond that, I've repeatedly interviewed the leading lawyers and other advocates involved in most of these controversies.  And many of the exchanges I've had with Kerr himself in the past were based not on moral condemnation or invective, but on glaring deficiencies, and at times willful (and acknowledged) ignorance, in the legal arguments he was voicing in order to defend the Bush administration and attack its critics (see here for the leading example, where Kerr -- along with fellow Law Professor Ann Althouse -- were running around attacking Judge Anna Diggs Taylor's decision finding Bush's NSA program unconstitutional and otherwise illegal based on complete and easily demonstrated ignorance about the case itself).  

The question isn't whether invective as opposed to reasoned argument is appropriate.  Even with regard to the most morally urgent debates -- perhaps especially there -- conclusions are only worthwhile if steeped in premises that are well-supported, analysis that is well-informed, and reasoning that is sound.  Nobody disputes that.  The issue is that huge numbers of elites and other experts (such as Kerr) who came forth to opine on what the Bush administration was doing failed to inform the public, failed to sound the alarm, about just how radical and lawless these assertions were -- what a profound departure from our constitutional traditions they represented.   

Instead, many of our leading opinion-makers and elites often defended those policies and thus legitimized them.  Even when there was opposition, it was typically tepid, mild, respectful, ambivalent, constrained, dispassionate -- creating the appearance to a citizenry that relies upon experts and elites to sound the alarm when things have gone fundamentally off track that there was nothing unusual or noteworthy about the powers this administration was claiming and the conduct in which it was engaging.

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* * * * *

As the Bush administration comes to a close, one overarching question is this:  how were the transgressions and abuses of the last eight years allowed to be unleashed with so little backlash and resistance?  Just consider -- with no hyperbole -- what our Government, our country, has done.  We systematically tortured people in our custody using techniques approved at the highest levels, many of whom died as a result.  We created secret prisons -- "black site" gulags -- beyond the reach of international monitoring groups.  We abducted and imprisoned even U.S. citizens and legal residents without any trial, holding them incommunicado and without even the right to access lawyers for years, while we tortured them to the point of insanity. We disappeared innocent people off the streets, sent them to countries where we knew they'd be tortured, and then closed off our courts to them once it was clear they had done nothing wrong.  We adopted the very policies and techniques long considered to be the very definition of "war crimes".  

Our Government turned the NSA apparatus inward -- something that was never supposed to happen -- spying on our conversations in secret and without warrants or oversight, all in violation of the law, and then, once revealed, acted to immunize the private-sector lawbreakers.  And that's to say nothing about the hundreds of thousands of people we killed and the millions more we displaced with a war launched on false pretense.  And on and on and on.

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Prime responsibility for those actions may lie with the administration which implemented them and with the Congress that thereafter acquiesced to and even endorsed much of it, but it also lies with much of our opinion-making elite and expert class.  Even when they politely disagreed, they treated most of this -- and still do -- as though it were reasonable and customary, eschewing strong language and emphatic condemnation and moral outrage, while perversely and self-servingly construing their constraint as some sort of a virtue -- a hallmark of dignified Seriousness.  That created the impression that these were just garden-variety political conflicts to be batted about in pretty conference rooms by mutually regarding elites on both sides of these "debates."  Meanwhile, those who objected too strongly and in disrespectful tones, who described the extremism and lawlessness taking place, were dismissed by these same elites as overheated, fringe hysterics.

Some political issues, including ones that provoke intense passion, have many sides, but not all do.  Not all positions are worthy of respect.  Some actions and policies require outrage and condemnation, to the point where it becomes irresponsible to comment on them without expressing that.  Some ideas are so corrupted and dangerous and indefensible that they do reflect negatively on the character and credibility of their advocates, on the propriety of treating those advocates as though they're respectable and honorable.  Most of all, elites who seek out an opinion platform have a responsibility to accept that their ideas and arguments have consequences and they should be held accountable for what their actions spawn (see Atrios' related point yesterday about Tom Friedman's responsibility arising from his advocacy for the Iraq War). 

Over the last eight years (at least), we have not only crossed the line of what ought to be within the realm of reasonable, respectful debate, but we have crossed it repeatedly, severely, and with great harm to our political system and huge numbers of people.  And one of the prime reasons that happened is because those with the most vocal platforms and with the greatest claims to expertise failed in their responsibility to oppose it passionately and to describe its extremism, and, instead, eagerly served as apologists for it.   Those who seek now to depict their tepidness in the face of all of that as some elevated form of enlightened reason are merely illustrating one of the key mechanisms that enabled all of it to happen.

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Glenn Greenwald

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