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McCain and Obama vs. Peaceful Protesters:

That's the topic of my column in today's Rocky Mountain News, starting with an incident Monday in Denver. As the article makes clear, both campaigns appear to be clearly within their legal rights, because they had protesters expelled from places which are not, under current First Amendment doctrine, traditional public fora. But that doesn't mean that either campaign made the right decision.

Bill Poser (mail) (www):
It seems to me that the ethics of restricting protest depend on the nature of the meeting. A candidate or party should be allowed to have pep rally type events without the opposition raining on their parade, so if they make it clear that the event is of that type and that only supporters are invited, I don't see how you can argue with that. On the other hand, events that are more of an informational nature, town halls, policy speeches, etc., don't have that justification.

What was the basis for ticketing Ms. Kreck? Even if the campaign has the authority to remove protesters, I don't see how a protester could in a semi-public place be treated as a presumptive trespasser. Did she refuse to leave?
7.12.2008 3:26pm
Oren:
DK, can we get a cite on "Precedent from the 10th U.S. Circuit Court of Appeals has specifically held that ... " since I figure you have it handy.
7.12.2008 3:33pm
Oren:
Hawkins v. City &County of Denver, No. 98-1003, UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT, 170 F.3d 1281; 1999 U.S. App. LEXIS 3801; 160 L.R.R.M. 2705; 1999 Colo. J. C.A.R. 1525, March 10, 1999, Filed , Certiorari Denied October 4, 1999, Reported at: 1999 U.S. LEXIS 5797.
7.12.2008 3:42pm
MnZ:
Protesting candidates seems a bit creepy to me. After all, a candidate for elected office is (you know) just a candidate. Opponents of his or her policies can influence the outcomes by campaigning to have someone else elected. Disrupting a candidates ability to campaign seems a bit too much like Germany circa 1930.
7.12.2008 4:12pm
Benjamin Davis (mail):
I like the disorder that comes with hecklers. Candidates try to create these pristine spaces in the television age which attempt to make us feel that people are all supportive of them. The control of where free tickets can be gotten for these events is one particular way that candidates control the space. I have been on the outside of such events in "designated protest spaces."

Most memorable was back in January 2004 when Bush came to speak at Owens Community College. I was protesting the torture and had a handmade "indict Bush war crimes" sign. Most folks there were from the unions protesting the training plan Bush proposed which did not have a clear path to a job. The 300 or 400 of us were herded into a penlike area until Bush got in the building. We were then allowed to walk down the road next to the speaking place to the union local. As Bush was about to finish we came out of the union local and were allowed to stand 100 yards from the road. So we stood in this long single file line in this field in Ohio in January raising all kinds of Cain. Bush's car came by. All that protest was important to show the candidate that we are not happy with his policies. The only thing I regret is that we did not all pull down our pants and turn around and moon the President. I did not have the presence of mind to think of that on the spur of the moment. THAT would have been something!
Best,
Ben
7.12.2008 5:04pm
Viceroy:
Isn't there a cheney case ongoing in federal court (and I think plaintiff(s) have fared reasonably well). Facts are slightly different, but I'm not sure the rule is as black and white as you make it out to be.

Either way, the mccain protest person I'm sure will file suit. It will result in some bad publicity for mccain no doubt.

:)
7.12.2008 5:27pm
Viceroy:
Oops, didn't realize the librarian was in a mall. Scratch my comment.
7.12.2008 5:34pm
Viceroy:
And Bill Poser's comment seems on point.
7.12.2008 5:35pm
Perseus (mail):
The only thing I regret is that we did not all pull down our pants and turn around and moon the President. I did not have the presence of mind to think of that on the spur of the moment.

Regretting an absence of a puerile mind? Talk about the coarsening of the culture.
7.12.2008 6:09pm
Oren:
If an unclothed buttocks is the mode of expression that best conveys his thoughts then it would be unpatriotic to do anything less.
7.12.2008 6:21pm
PatHMV (mail) (www):
Some of us would prefer to actually listen to the candidates and hear what they have to say, rather than have to put up with uniformed (but highly CERTAIN) protesters interrupting things. By the way, Ben, any President is well aware that not everybody approves of their policies. They do take a look at polls and such, you know. But hey, glad you feel like you've accomplished something by holding up a sign! woo hoo!

As to the post, I agree they campaigns are over-reacting if they try to restrict what's going on outside the event (even where they legally can). But I'm all for campaigns taking a hard line on protesters INSIDE the event, because there's just too high a risk of disruption. It's been shown time and time again that the people who just despise a candidate consider "any means necessary" to disrupt an event. Far from championing free speech rights, they seek to deny the candidate the right to speak. They do not speak in opposition, they speak to drown out a message they think should not be heard by anybody.
7.12.2008 6:23pm
Snarky:

They do take a look at polls and such, you know.


Actually, Bush has bragged on countless occasions about ignoring the polls and ignoring the news.

Nonetheless, I am sure that he is aware that there are those who do not agree with him.
7.12.2008 6:33pm
Dave Hardy (mail) (www):
"Regretting an absence of a puerile mind? Talk about the coarsening of the culture."

Hey, we're in a campaign where a candidate's testicles are being menaced!
7.12.2008 6:34pm
Benjamin Davis (mail):
Given the incredible protection surrounding the President (helicopters everywhere, police every 15 feet hassling everybody, the car with its windows up so he could not hear our protests) it just occurred to me that mooning would have been the best expression of our disagreement with him that he could not miss unless he really wanted to avert his eyes.

I have stood in protest with a large sign in Columbus on another occasion the President spoke at one of these tailored events where the people who were allowed inside were only those who agreed with the President. There we were that little band of 13 or 14 odd souls standing on a street corner with our homemade signs saying hooray for our side.

Of course, the wonderful moment was when all the persons supporting the President streamed out of the event and we continued trying to speak to them about why we should stop U.S. torture (It's against the law!). Made sure that the persons could not deny that they had not heard about it while it was going on.

Also for persons with less courage to express their beliefs, it encourages them to feel more comfortable with their dissent from the carefully orchestrated groupthink.

Protest is one of those wonderful things about our democracy. All these persons who seem so eager for everything to be so ordered disappoint me. Dissent is by its nature a dissonance and a disorder. Yet, that dissent is frequently looked back on by Americans as one of the finest expressions of what the American spirit is.

Like for example the gentleman down in North Carolina who worked for the government and refused the order to have the flag flown at half-mast for Jesse Helms where he worked because of all the bad things that Helms did. Mr. Eason's protest was to retire rather than fly that flag at half-mast. Some of us will remember Mr. Eason for that willingness to buck the hagiography and call it the way many of us saw it - a hateful man who hurt so many people should not be given that respect.

Best,
Ben
7.12.2008 6:45pm
Chris Bell (mail) (www):
I hear that the Obama campaign is discussing a sponsorship deal with Russell Athletic Wear. It will bring money into the campaign and keep him safe from Jessie Jackson. Win-Win.
7.12.2008 6:48pm
Perseus (mail):
it just occurred to me that mooning would have been the best expression of our disagreement with him that he could not miss unless he really wanted to avert his eyes.

Make that: a puerile and unimaginative mind. Surely you could think of something better than a vulgar, semi-articulate gesture. Perhaps Mr. Eason could give you a few ideas.
7.12.2008 7:06pm
Benjamin Davis (mail):
Oh heavens, I seem to have brought out the condescending ones again. So be it. Especially with regard to the ones who hide behind pseudonyms.

I well can remember so many occasions when the form of the protest was ridiculed or disagreed with - as if the form was the only thing that mattered.

Also, it appears that persons here appear not to appreciate the idea of ordinary citizens getting a little hot under the collar after standing in the cold, being shuttled about and carefully kept away and concealed from the President in some type of Potemkin village event where only people who agree with the President are allowed to get access to the event. After a few hours of this and seeing that one will only be allowed to be seen by him as he is whisked by at a high speed with windows up etc. - some of us do get angry. Maybe it is not sufficiently elegant for elitists who only express anger behind closed doors or persons who only express it on websites, but some real people do things like I have suggested precisely to do something that shocks the false civility that masks acquiescence in awful things.

Best,
Ben
7.12.2008 7:58pm
Jmaie (mail):
Protest is one of those wonderful things about our democracy. All these persons who seem so eager for everything to be so ordered disappoint me. Dissent is by its nature a dissonance and a disorder.

Protests are "wonderful" because they allow the emotionally immature a feeling of accomplishment - as if they have contributed something of value - when in fact they have most likely simply wasted an afternoon standing somewhere holding a sign. "Speak TRUTH to power!!!

Go to Beijing this summer and protest China's human rights record. Then I'll be impressed.
7.12.2008 8:09pm
Perseus (mail):
Especially with regard to the ones who hide behind pseudonyms.

The use of pseudonyms in political debates was quite common in the U.S. during the Founding era when dissent was even more robust (tarring &feathering anyone?), and their use continues to this day among distinguished publications like The Economist. Of course, in modern academia the person making the argument matters more than the argument itself as evidenced by my profession's flagship journal (APSR), which puts the names of the authors in boldface (relegating the titles of the articles to normal typeface).

I also get a kick out of it when fellow members of the elite chattering classes try to portray themselves as part of the voiceless proletariat.
7.12.2008 9:20pm
Smokey:
Benjamin Davis:
I like the disorder that comes with hecklers.
Oh, you would. But only those hecklers that heckle conservatives -- as your all of posts make crystal clear.
7.12.2008 10:48pm
PatHMV (mail) (www):
The protesters lack a fundamental understanding of the concept of democratic pluralism, the idea that we can't all get our way at the same time, that even when you REALLY, REALLY disagree with some course of action, it still may be supported by other people, whose viewpoints and ideas are as valid as yours. They see a black-and-white view of society, where everybody who doesn't believe as they do is not simply wrong, not simply mistaken, but EVIL. Oddly, it is these same people who tend to criticize conservatives for lacking sufficient nuance and subtlety.

I've got news for you, Ben. You don't need to prove that you've put people on notice what's going on. We already know what's going on. We just don't agree with you. We don't consider waterboarding of the likes of Kahlid Sheik Mohammed to be a bad thing, or the beginning of a fascist police state. We understand that the fight over the FISA bill is not about listening to the conversations of Americans, but listening to the conversations of people in foreign countries whose calls are routed through computers physically located in America. We understand lots of stuff, so you might want to: 1) gain a bit better understanding of the facts yourself; 2) try making some rational, coherent arguments rather than holding up silly signs and annoying passer-by.

You make it quite clear that you consider those of us who disagree with you to be unworthy heathens, practicing "false civility." It's not false civility. It's very easy to live peacefully with those with whom you agree. It's hard to be civil to those with whom you disagree. You, however, take the easy way out and convince yourself that civility is nothing more than hypocrisy... it's not. It's accepting the fact that YOU are not omniscient, that however strongly you may feel about something, you may still be wrong. If everybody behaved as you did, we'd all do nothing but scream at each other all day long, and our civilization would collapse.
7.13.2008 12:40am
Mr L (mail):
It appears that persons here appear not to appreciate the idea of ordinary citizens getting a little hot under the collar after standing in the cold, being shuttled about and carefully kept away and concealed from the President in some type of Potemkin village event where only people who agree with the President are allowed to get access to the event.

Personally, I'm more worried about the fact that we have fairly sophisticated media operations attempting to damage candidates by disrupting campaign events with political operatives posing as independent citizens.

Yeah, yeah, Swift Boating, whatever - ProgressAction's a 527, too. Oh, sorry, it's actually a 501(c)(4), which is apparently the new 527 since they started cracking down. MoveOn.org coverted to a 501(c)(4), which should tell you enough.

This is in an election where one candidate basically owns the issue of campaign finance reform and the other specifically targeted 527s for criticism, even trying to get his own closed down. I hate politics.
7.13.2008 4:00am
PersonFromPorlock:
PatHMV, well said!
7.13.2008 7:55am
tarheel:

We don't consider waterboarding of the likes of Kahlid Sheik Mohammed to be a bad thing

Gotta love use of the royal "we." Speak for yourself please, PatHMV.

I think a little political protest/civil disobedience is a great thing. I'm pretty sure that's how this country got started.
7.13.2008 8:29am
PatHMV (mail) (www):
I wasn't using the "royal we," tarheel. I was using it (quite clearly, I thought, from the context) to refer to those of us who largely support the actions taken by President Bush in fighting terrorism and who Ben thinks to be ignorant of the real facts.

I certainly support Ben's RIGHT to protest. I'm merely expressing my opinion that his methods of protest are juvenile (seriously, are you comparing the founding fathers to a protester who regrets not mooning the President?) and that the cause in which he protests is, at best, misguided.
7.13.2008 10:37am
Sam Hall (mail):
Jmaie , Well said.

tarheel said:

"I think a little political protest/civil disobedience is a great thing. I'm pretty sure that's how this country got started."

They didn't stand in the middle of the street naked with big puppets. They did things that make a difference.
7.13.2008 10:38am
Daniel Chapman (mail):
He was speaking for himself and those who agree with him. Hence the plural.
7.13.2008 10:38am
tarheel:
Fair enough. That's what I get for posting pre-coffee.
7.13.2008 11:06am
PatHMV (mail) (www):
No problem, tarheel... the effects of morning caffeine deficit on reading comprehension is an ill which crosses all political borders!
7.13.2008 11:49am
LM (mail):
Speak for yourself, PatHMV. Some of us can't read, whether or not we're not coughing.
7.13.2008 12:19pm
ejo:
the peaceful protester is someone actually interested in exercising the heckler's veto. debate? no, these are folks who want to shout down speakers, maybe even throw a few pies like the moronic leftists at campus events. toss them out on their keisters-the First Amendment will survive.
7.13.2008 1:03pm
Benjamin Davis (mail):
PatHMV and others,

Just got to this after lunch.

It is precisely because there are plenty of people who go around thinking that waterboarding KSM is fine and that everything is hunky dory with FISA and the rest of it, that there are others who tread in the political space to disagree.

I can pick a large number of things from American history that people were happy to go along with while others tread (courageously in my view) in the political space to disagree. I think many of the people we respect when we look back are those who did disagree with the ambient views.

One of the important things about putting people on notice is because there is a tendency at times in the US to a certain amnesia about awful things. Some things have to be repeated. It is the "I didn't know" in the quiet bucolic communities. I am pleased that you are on notice about these things, notwithstanding all the efforts of the government to hide or deny that it is torturing people, to use euphemism like "enhanced interrogation techniques", to create black sites, and to send people off to third countries to be tortured by surrogates. I am glad you are on notice and I hope that others are on notice about all these things.

To be further on notice, I suspect in a few days you will see a book come out entitled "The Dark Side" by Jane Mayer which, from the advance reviews, appears to be a very detailed explanation of the extent of the torture that has been going on in the past few years under the administration. I commend it to you.

I also hope that in thinking torturing an enemy is OK that you would ponder that was not the considered opinion of the top legal advisors for the four military services.

And, if you are onboard with all the torture and FISA snooping, I think I am permitted to highlight that many of these things broke domestic and/or international law and that ordinary citizens are permitted to have a problem with that and protest.

I know you respect my right to protest as I respect your right to support whatever you want. I do not consider those who disagree with me to be heathens. My experience has been the reverse, those of us who actually don't go along with the prevailing view are the ones who are looked at as the heathens, silly etc. Those of us who do not protest in a genteel way are criticized for the form of our protest. Even genteel protest is considered upsetting to some - take a look at the criticism so aptly described in MLK's "Letter from a Birmingham Jail". All of these gradations of critique of protest appear after a certain point to just be rationalizations for immobility and acquiescence.

It is precisely to interact with persons of other views in this space that I engage with you. I hope I do not condescend and certainly do not try to condescend.

In a way, the thing about these conversations reminds me of something. I relish going to places like Washington and New York to conferences and introducing myself as Benjamin Davis from the University of Toledo. I have noted a certain (how should I say) "noblesse oblige" from my "betters" at higher ranked schools as they respond to comments from a person from the hinterland professing a somewhat more blue collar view of things in a direct manner. I think the idea is that no good idea can come out of a place that is not one of the 10 or 20 top schools. To combat that smugness I feel coming at me, I do keep in the back of my mind that every four years, those mighty elites make their pilgrimage out to good ole Toledo to beg us "poor saps" for our votes as Ohio is a key swing state and Toledo is right in the middle of that.

To give a wonderful example of this dynamic, when protest faced John Yoo when he came to speak here a couple of years ago he made the off the cuff comment, "This is reminding me of Berkeley." Someone in the audience piped up, "No, this is Toledo." The heart of the heartland my friends.

As to protest methods, for those who sniff down their noses at the methods of today, I suspect that throwing tea into Boston Harbor was considered moronic by the Brits and Tories back in our founding fathers' day. I believe all kinds of acts of protest are considered moronic (do I have to invoke Birmingham or the Edmund Pettus Bridge?). Big puppets, large crowds, great songs or whatever all will have those who think they are moronic. Same with filibusters on the floor of the Senate. When one is disagreeing with the ambient view, it does seem to be very difficult to keep from being stifled and so persons do what they can to get the word out.

Now, maybe persons want their protests to be silent or to be long suffering in a Sydney Poitieresque kind of nobility - but that narrow view appears to be so emasculating to protesters confronted with others who are controlling and exercise control over all the levers of power. One does not have to be a saint or act saintly to protest.

For lack of a better way to think of this, the question for me is whether in my action/inaction I am acquiescing or resisting the bad things as they occur.

You know there use to be thousands of people standing around and happily watching some poor black sap being lynched. There use to be towns where a whistle blew to tell black people that they had to be out of town by sundown. There use to be people who put covenants in their deeds that stated their house could not be sold to a black person. There use to be people who would alter the votes of black people - if they got a chance to vote - so that the black persons vote would not count. There use to be people who were happy that a black who wanted to go to graduate school could not go to the flagship school in the state but had to go out of state. There use to be people who were perfectly happy to have black kids get an education in leaky shacks with dirt floors. And there were plenty of people who were well aware of that reality and were happy to go along with it even if it was wrong and also illegal.

There use to be people protesting in the mills of North Carolina in those company towns who were beaten and put into corrals by corporate security persons and the military. And there were plenty of folks to go along with that because these were "rabblerousers". But there were some who said it was wrong to treat the average working person in that way and that there was a need to get a union in place.

There use to be Japanese-Americans interned as a security threat. And there were neighbors who went down to the Mayor and said, "Mayor, that's wrong. Joe is a good guy and it's not fair."

These were the people who would come into those places or come out of church one day and say this is not right and we need to do something. And there would be people who would say, "Don't make waves Charlie!" and all that. But, there are people who are built that way to resist and use the legal means at their disposal to resist. Why? Because I think there is a sense that if we are not resisting then we form part of that great mass of persons who are acquiescing in allowing the awfulness to occur.

And, at the end, when our grandkids, if we are fortunate to live that long, ask us about what we did during those times, we can at least tell them "We did what we could."

If I can not convince, then I can put people on notice and hope that something other than me will get them to reconsider. That is why I engage with you. And I will stop when that voice inside tells me it is time for me to stop. That voice is telling me to make MORE AND MORE noise (sorry for the caps) in this atmosphere. So that's what I will do. Not from any sense of superiority, but precisely because I think we are all better than this and should not let our fears lead us to put aside our humanity.

Best,
Ben
7.13.2008 2:29pm
Benjamin Davis (mail):
On Jane Mayer's book, here is a Glenn Greenwald review that someone sent me.

Torture and the rule of law
The New Yorker's Jane Mayer, one of the country's handful of truly excellent investigative journalists over the last seven years, has written a new book -- "The Dark Side: The Inside Story of How the War on Terror Turned Into a War on American Ideals" -- which reveals several extraordinary (though unsurprising) facts regarding America's torture regime. According to the New York Times and Washington Post, both of which received an advanced copy, Mayer's book reports the following:

"Red Cross investigators concluded last year in a secret report that the Central Intelligence Agency's interrogation methods for high-level Qaeda prisoners constituted torture and could make the Bush administration officials who approved them guilty of war crimes."


"A CIA analyst warned the Bush administration in 2002 that up to a third of the detainees at Guantanamo Bay may have been imprisoned by mistake, but White House officials ignored the finding and insisted that all were 'enemy combatants' subject to indefinite incarceration."


"[A] top aide to Vice President Cheney shrugged off the report and squashed proposals for a quick review of the detainees' cases . . .

'There will be no review,' the book quotes Cheney staff director David Addington as saying. 'The president has determined that they are ALL enemy combatants. We are not going to revisit it.'"


"[T]he [CIA] analyst estimated that a full third of the camp's detainees were there by mistake. When told of those findings, the top military commander at Guantanamo at the time, Major Gen. Michael Dunlavey, not only agreed with the assessment but suggested that an even higher percentage of detentions -- up to half -- were in error. Later, an academic study by Seton Hall University Law School concluded that 55 percent of detainees had never engaged in hostile acts against the United States, and only 8 percent had any association with al-Qaeda."


[T]he International Committee of the Red Cross declared in the report, given to the C.I.A. last year, that the methods used on Abu Zubaydah, the first major Qaeda figure the United States captured, were 'categorically' torture, which is illegal under both American and international law".


"[T]he Red Cross document 'warned that the abuse constituted war crimes, placing the highest officials in the U.S. government in jeopardy of being prosecuted.'"
This is what a country becomes when it decides that it will not live under the rule of law, when it communicates to its political leaders that they are free to do whatever they want -- including breaking our laws -- and there will be no consequences. There are two choices and only two choices for every country -- live under the rule of law or live under the rule of men. We've collectively decided that our most powerful political leaders are not bound by our laws -- that when they break the law, there will be no consequences. We've thus become a country which lives under the proverbial "rule of men" -- that is literally true, with no hyperbole needed -- and Mayer's revelations are nothing more than the inevitable by-product of that choice.

That's why this ongoing, well-intentioned debate that Andrew Sullivan is having with himself and his readers over whether "torture is worse than illegal, warrantless eavesdropping" is so misplaced, and it's also why those who are dismissing as "an overblown distraction" the anger generated by last week's Congressional protection of surveillance lawbreakers are so deeply misguided. Things like "torture" and "illegal eavesdropping" can't be compared as though they're separate, competing policies. They are rooted in the same framework of lawlessness. The same rationale that justifies one is what justifies the other. Endorsing one is to endorse all of it.

In fact, none of the scandals of radicalism and criminality which we've learned about over the last seven years -- including the creation of this illegal torture regime -- can be viewed in isolation. They're all by-products of the country that we've become in the post-9/11 era, primarily as a result of our collective decision to exempt our Government leaders from the rule of law; to acquiesce to the manipulative claim that we can only be Safe if we allow our Leaders to be free from consequences when they commit crimes; and to demonize advocates of the rule of law as -- to use Larry Lessig's mindless, reactionary clich├ęs -- shrill, Leftist "hysterics" who need to "get off [their] high horse(s)".

That is the mentality that has allowed the Bush administration to engage in this profound assault on our national character, to violate our laws at will. Our political and media elite have acquiesced to all of this when they weren't cheering it all on. Those who object to it, who argue that these abuses of political power are dangerous in the extreme and that we cannot tolerate deliberate government lawbreaking, are dismissed as shrill Leftist hysterics.

All the way back in May, 2006 -- just months after the NYT revealed the illegal NSA spying program -- I wrote in my first book, How Would a Patriot Act, the following about the NSA eavesdropping scandal:

This is not about eavesdropping. This is about whether we are a nation of laws . . . . The heart of the matter is that the President broke the law, repeatedly and deliberately, no matter what his rationale for doing so was . . . .

The National Security Agency eavesdropping scandal is not an isolated act of lawbreaking. It is an outgrowth of an ideology of lawlessness that has been adopted by the Bush administration as its governing doctrine. Others include the incarceration in military prisons of U.S. citizens who were not charged with any crime or even allowed access to a lawyer, the use of legally prohibited torture techniques, and the establishment of a military detention center in Guantanamo Bay, a no-man's-land that the administration claims is beyond the reach of U.S. law. In the media and the public mind, these issues have been seen in isolation, as though they are unconnected.

In fact, all of these controversial actions can be traced to a single cause, a shared root. They are grounded in, and are the by-product of, an unprecedented and truly radical theory of presidential power that, at its core, maintains that the president's power is literally unlimited and absolute in matters relating to terrorism or national security. . . .

What we have in our federal government are not individual acts of lawbreaking or isolated scandals of illegality, but instead a culture and an ideology of lawlessness.

But those who argued such things were The Shrill Leftists, The Crazed Civil-Liberties Extremists, the Hysterics. And they still are. By contrast, Serious People understood -- and still understand -- that our leaders made complex and weighty decisions for our own Good and that terms like "lawbreaking" and "war crimes" and "prosecutions" have no place in respectable American political circles. Hence, our political leaders operate in a climate where they know they can do anything -- anything at all, including flagrantly breaking our most serious laws -- and they will be defended, or at least have their behavior mitigated, by a virtually unanimous political and media establishment. The hand-wringing over Mayer's latest revelations will be led by the very people who are responsible for what has taken place -- responsible because they decided that rampant, deliberate lawbreaking by our Government officials was nothing to get worked up over.

There are many political disputes -- probably most -- composed of two or more reasonable sides. Whether the U.S. Government has committed war crimes by torturing detainees -- conduct that is illegal under domestic law and international treaties which are binding law in this country -- isn't an example of a reasonable, two-sided political dispute. Nor is the issue of whether the U.S. Government and the telecom industry engaged in illegal acts for years by spying on Americans without warrants. Nor is the question of whether we should allow Government officials to break our laws at will by claiming that doing so is necessary to keep us Safe.

There just aren't two sides to those matters. That's what the International Red Cross means when it says that what we did to Guantanamo detainees was "categorically torture." It's what the only federal judges to adjudicate the question -- all three -- have concluded when they found that the President clearly broke our laws with no valid excuses by spying on our communications for years with no warrants. It's why the Bush administration has sought -- and repeatedly received -- immunity and amnesty for the people who have implemented these policies. It's because these actions are clearly illegal -- criminal -- and we all know that.

And that's true no matter how many Bush-loyal DOJ lawyers justify the behavior, no matter how many right-wing lawyers go on TV to defend the Government's conduct, no matter how many Brookings "scholars" go to The New Republic in order flamboyantly to boast how deeply complex these matters are and how only Super-Experts (like themselves) can grapple with the fascinating intellectual puzzles they pose. Displaying cognitive angst and/or above-it-all indifference in the face of unambiguously illegal and morally reprehensible government conduct isn't a sign of intellectual sophistication or political Seriousness. It's exactly the opposite. It's the hallmark of complicity with it.

Law Professor Jonathan Turley, on MSNBC last night discussing Mayer's revelations, put it this way:

[The IRC] is the world's preeminent institution on the conditions and treatment of prisoners and specifically what constitutes torture. And the important thing here is they're saying it's not a close question, that as many of us, and there are many, many of us who have argued for years that this is clearly, unmistakably a torture program; the Red Cross is saying the same.

The problem for the Bush administration is they perfected plausible deniability techniques. They bring out one or two people that are willing to debate on cable shows whether water-boarding is torture. And it leaves the impression that it's a close question. It's not. It's just like the domestic surveillance program that the a federal court just a week ago also said was not a close question. These are illegal acts. These are crimes. And there weren't questions before and there's not questions now as to the illegality. . . .

I never thought I would say this, but I think it might, in fact, be time for the United States to be held internationally to a tribunal. I never thought, in my lifetime, that I would say that, that we have become like Serbia, where an international tribunal has to come to force us to apply the rule of law. I never imagined that a Congress, a Democratic-led Congress would refuse to take actions, even with the preeminent institution of the Red Cross saying, this is clearly torture and torture is a war crime. They are still refusing to take meaningful action.

So, we've come to this ignoble moment where we could be forced into a tribunal and forced to face the rule of law that we've refused to apply to ourselves.

That's the inevitable outcome when a country's political establishment decrees itself exempt from the rule of law. If the rule of law doesn't constrain the actions of government officials, then nothing will. Continuous revelations of serious government lawbreaking have led not to investigations or punishment but to retroactive immunity and concealment of the crimes. Judicial findings of illegal government behavior have led to Congressional action to protect the lawbreakers. The Detainee Treatment Act. The Military Commissions Act. The Protect America Act. The FISA Amendments Act. They're all rooted in the same premise: that our highest government leaders have the power to ignore our laws with impunity, and when they're caught, they should be immunized and protected, not punished.

When our political and media elite aren't defending the Bush administration's lawbreaking, they're dismissing its importance. David Broder believes that government crimes are mere "policy disputes" that shouldn't be punished. And here's "liberal" pundit Tim Rutten of The Los Angeles Times, acknowledging that our highest political officials ordered illegal torture, but then invoking the very common -- and indescribably destructive -- mentality of most of our Good Establishment Liberals to insist that they should not be held legally accountable:

It's true that there are a handful of European rights activists and people on the lacy left fringe of American politics who would dearly like to see such trials, but actually pursuing them would be a profound -- even tragic -- mistake. Our political system works as smoothly as it does, in part, because we've never criminalized differences over policy. Since Andrew Jackson's time, our electoral victors celebrate by throwing the losers out of work -- not into jail cells.

The Bush administration has been wretchedly mistaken in its conception of executive power, deceitful in its push for war with Iraq and appalling in its scheming to make torture an instrument of state power. But a healthy democracy punishes policy mistakes, however egregious, and seeks redress for its societal wounds, however deep, at the ballot box and not in the prisoner's dock.

To do otherwise risks the stability of our own electoral politics almost as recklessly as the Bush/Cheney regime has risked our national interests abroad.

That warped mentality -- as much as the most lawless elements of the Bush administration -- is what is responsible for the destruction of our fundamental national character over the last seven years. "Laws" and "crimes" are only for the common people and for other countries. We're too magisterial a country, our political leaders are too Important and too Good, to subject them to punishment when they break our laws. That's the mentality that has created the climate of Lawlessness that defines who we are.

Yes, I'm well aware that the U.S, like all countries, was deeply imperfect prior to 9/11, and that many of the systematic excesses of the Bush era have their genesis prior to 2001. The difference (a critical one) is that what had been acts of lawbreaking and violations of our national values have become the norm -- consistent with, rather than violative of, our express values and policies. As Mayer writes in her book:

For the first time in its history, the United States sanctioned government officials to physically and psychologically torment U.S.-held captives, making torture the official law of the land in all but name.
The enactment of the new FISA bill last week was destructive for many reasons, including the fact that it legalized a regime of warrantless eavesdropping that is certain to be abused. But the far more destructive aspect of the new law is that it was just the latest example -- albeit the most flagrant -- of our political class abolishing the rule of law in this country.

It will never stop being jarring that Pulitzer-Prize-winning revelations from the New York Times that the President and the telecom industry were committing felonies for years culminated in the full-scale protection of the lawbreakers and retroactive legalization of the criminality by the "opposition party" which controls the Congress.

One cannot coherently sanction or even acquiesce to serious government lawbreaking and then feign outrage over illegal torture and other war crimes. The sanctioning of government illegality is precisely what leads to abuses like the American torture regime. Those who have spent the last seven years scoffing at Unserious, Hysterical objections to Bush lawlessness are the very people who have created this climate that they will now pretend to find so upsetting. The "rule of law" isn't some left-wing dogma that is the province of Leftist radicals and hysterics. It's the cornerstone of every civilized and free society, and Jane Mayer's new book is but the latest piece of evidence to prove that.

-- Glenn Greenwald
7.13.2008 2:37pm
AnonLawStudent:
Ejo's comment that "the peaceful protester is someone actually interested in exercising the heckler's veto" is spot-on. As a nation with a very high degree of free speech, the United States offers a vast market place for ideas. Subject to the forces of the market, many of these ideas are rejected or discredited; disruption is merely a tool for losing advocates to gain ground via blackmail. Not surprisingly, these advocates often provide poor justification for their support.

As to the the utility of pseudonyms, the names Publius, Brutus, and Federal Farmer lay waste to complaints over their use. I, for one, much prefer that ideas be judged based on merit rather than authorship. Indeed, the quality of academic discourse would almost certainly rise if authors were anonymous, with work judged solely on content. In that vein, I find it interesting to see the same individual complain about use of pseudonyms and the smugness of the brand-name academic elite.
7.13.2008 3:37pm
Benjamin Davis (mail):

Indeed, the quality of academic discourse would almost certainly rise if authors were anonymous, with work judged solely on content.



Anonymous review in law journals - to some extent - do occur but is certainly far from uniform. There are many anecdotal stories about the market for academic ideas that suggests that the school from which the academic comes from will dictate whether the paper will be read.

As to use of psuedonyms, what can I say - all you folks using pseudonyms however erudite are hiding behind avatars. But it's a free country. Lumps and all WYSIWIG (what you see is what you get) with me.

Best,
Ben
7.13.2008 5:38pm