Ponnuru & Bazelon Go Another Round:
This morning on NRO, Ramesh Ponnuru responds once again to Emily Bazelon on how Senators and the Supreme Court (mis)handled the legislative history of the Detainee Treatment Act.
Related Posts (on one page):
- Debating the DTA Debate Redux:
- Ponnuru & Bazelon Go Another Round:
- Debating the DTA Debate:
Also, his way of dealing with Levin's November 14th comments is just bizarre. As far as I can tell, he is refusing to draw a distinction between substantive standards and jurisdiction, but that of course was exactly the distinction that Levin was drawing in his November 14th remarks. And of course the Graham/Kyl brief took the opposite position on the issue of jurisdiction--and yet Ponnuru inexplicably claims, "[Levin's] November comments don’t contradict what Kyl and Graham maintained in their brief."
But as I noted elsewhere, this is all a smokescreen--Ponnuru's obvious goal is to try to give the GOP watercarriers something to say in an effort to distract people from the very serious issues raised by Graham and Kyl's conduct.
Stevens' lie is contained in one sentence, and the subsequent citation:
In that sentence, Stevens was attempting to contrast Kyl/Graham's colloquy (which Stevens cited in the prior sentence, stating that Kyl/Graham "arguably contradict Senator Levin’s contention", but stating that the statements "appear to have been inserted into the Congressional Record after the Senate debate") with Levin's statements during the debate. As Ponnuru pointed out in the initial article, Stevens' purported contrast between Kyl/Graham being "inserted ... after the Senate debate" and Levin's being "during the debate itself" is just downright false. In the statement that was a lie, Stevens points solely to December 21 statements by Levin that were inserted into the record in the exact same manner as Kyl/Graham's were.
Bazelon deliberately obfuscates this point by citing to other parts of footnote 10 that have nothing to do with Stevens' contrast. But doing so is completely dishonest - the citations that Bazelon points to have nothing to do with the sentence in which Stevens lied. To point to them is another way of shouting "look over there"! Ponnuru appropriately - and succinctly - calls Bazelon on this dishonest tactic: What I wrote was that Stevens referred only to Dec. 21 testimony when illustrating his point about “all statements made during the debate itself.” And I quoted the passage accurately.
It is but a small point that Stevens was wrong in claiming that Levin's (and other) Dec 21 remarks were made before debate concldued. We can throw out all Dec 21 post-debate remarks as being equally invalid in determining the legislative history. We still get to the same result: the legislative history supports Levin's claim.
Some people have a very powerful ability to willingly suspend disbelief. And in any event, for a long time now, the blogospheric defenders of the new-and-improved GOP have been taking on an increasingly postmodern sensibility, and thus for them words like "honesty" and "truth" have no objective content, and are simply relative to political leanings and allegiances.
In other words, it is all just a word game for them, the goal of which is to have their political side win. Thus, you see some people keeping score between Bazelon and Ponnurum and counting "points", as if it simply doesn't matter whether or not Graham and Kyl actually tried to commit a fraud on the Supreme Court, and that all we are watching is a debating contest. Because after all, the notion of an actual fraud would seem to depend on the notion of some objective truths, and they have long since abandoned any such idea.
It is not really my business, but I think it is clear that A.S.'s primary goal--as was also intended by Ponnuru--is to be as inflammatory as possible about Justice Stevens's opinion in order to distract attention away from the serious issues raised by Graham and Kyl's conduct.
So, I doubt you will be able to have a serious discussion with A.S. about Justice Stevens's opinion, because having a serious discussion is not his goal. Indeed, the whole point of his efforts is to distract you and others away from having a serious discussion about Graham and Kyl, and so he has already achieved his goal as soon as you are talking about Justice Stevens and not Graham and Kyl.
Nope, let's not talk about Graham and Kyl attempting to mislead the Supreme Court, let's talk about Justice Stevens' citation errors! I can't imagine a more obvious attempt to obfuscate.
That could very well be correct. I haven't read all of the statements, prior versions of bills, etc. So I haven't taken a position on whether the legislative history supports Levin's claim. (Nor have I really looked at Scalia's claim about the text.)
My point is solely limited to Stevens' lie (or error). Indeed, that was the sole point that Ponnuru was making in his original article -- the article doesn't say that you don't get to the ultimate conclusion that the legislative history supports Levin's claim; rather it says that one of the pieces of evidence supporting that conclusion is flawed.
So my point is exactly on the topic that Ponnuru wrote about. Arguments that say that, even without the flawed evidence, you ultimately come the conclusion about the meaning of the DTA are not responsive to the limited point that Ponnuru and I make.
"But Stevens has it wrong. None of the statements he cites — on either side of the issue — was made during floor debate in the Senate."
"The Kyl-Graham statements were inserted after the debate but before the vote — which was also the case for every Democratic statement that Hamdan’s lawyers cited on their side of the argument."
"The truth is that there never was much floor debate at any time about whether the act applied to pending or only to future cases."
All of these claims are false unless you pretend that Stevens and the petitioners only cited remarks from December 21st, and indeed that no other remarks exist, which of course is not true.
But again, the more outrageous the statements by Ponnuru and his cohorts, the better, because it all just helps to create the desired distraction from the very serious issues raised by Graham and Kyl's conduct.
Moreover, he totally ignores the difference between changes of jurisdiction that only change procedure, the prior precedent for retroactivity, and laws like this which totally remove an individuals right to appeal. This distinction was critical in Steven's rejection of Scalia's argument and at least deserves a mention if you are going to rest so heavily on it.
Medis is just plain wrong. And Ponnuru is correct.
The citations by Stevens and others for the issue in Stevens' opinion that Ponnuru addressed - that Levin made statements "during the debate itself" while Kyl/Graham "inserted [statements] after the Senate debate" - were all to December 21. All of the other citations that Medis and others point to (i.e., those in November) were for different issues. The fact that there are other citations elsewhere in the opinion does not make them citations for the point that Ponnuru addressed in his original article.
One wonders why Medis repeats the same false claim over and over.
Of course, those qualifications didn't appear in Ponnuru's original article, but it doesn't matter. We both know what you are really trying to do, and judging from the comments of others, it isn't working. You can try to shift the topic of the conversation to Justice Stevens, Bazelon, or even me, but it won't make people forget the serious issues raised by the conduct of Graham and Kyl.
For example, Ponnuru says Hamdan's lawyers were guilty of manipulation when they quoted Reid's agreement with Levin. Ponnuru complains that, "Reid’s statement, too, was inserted into the record after the debate. It does not appear on the videotape." It does not appear on a videotape, but it was inserted a month before the debate.
Exactly: Ponnuru's claims were either trivial (if you read into them the qualifications that A.S. is now suggesting) or false (if you don't read in those qualifications).
Of course, this is an well-worn but popular play in the political playbook: state something that appears to be broad and thus significant, and when it is later disproven, claim that you only really meant something much more narrow which is arguably true. Among those who stopped paying attention once you told them what they wanted to hear, you get the benefit of the broad-but-false statement, and among those who are still paying attention but don't want you to be discredited, you get the benefit of your narrow-but-arguably-true interpretation.
Of course, one would expect that anyone not already committed to support you could see through all this pretty easily. But if your goals are just: (1) to give your supporters something to say; (2) to distract your critics from what they should be saying; and (3) to confuse everyone else, then it could work quite well.
I think Ramesh typically has a very lucid and nuanced mind. But he sometimes reaches the wrong conclusion early on, colors that conclusion in categorical and over-the-top language, and, as far as I can tell, almost never refuses to concede that he's wrong. He'll have to start doing better if he wants to be taken seriously as a commentator outside of rightwing circles.
This chain contains the relevant links: http://volokh.com/posts/chain_1109777023.shtml.
If I can answer for Rex, you can find that link under serialized posts. It's the one that says "Related Posts (on one page)"; the "on one page" part links to the chain page. It's a useful tool, and I wish more blogs would use it.
To Justin's point, I think Ponnuru's lack of training in the law is a weak defense. If he's going to dive head-first into complex legal debates, then he's responsible for the risk associated with directly challenging lawyers like Bazelon on their area of expertise. Plus, Ponnuru's arrogance as displayed in the exchange with Tom Goldstein suggests that he would admit no shortcomings in his legal qualifications in the first place.
Furthermore -- and I recognize that this thread is likely dead anyway -- it says quite a bit about someone who gets himself involved in a debate beyond his background and then resorts to using ad hominem attacks as a means of self-preservation.