Category: The Dish

How did the Bush Office of Legal Counsel actually conclude that "waterboarding" – finally publicly confirmed as a "no-brainer" by the vice-president and practised by the U.S., following the Khmer Rouge – actually qualify as "legal" and "not torture"? Marty Lederman explains why here.

A reader writes:

I am almost awestruck by how well you handled yourself during the inquisition. I read the transcript yesterday, and I am still thinking about it. You provided many valuable insights, but what I find most remarkable is something I suppose your interviewer could never fathom: You are doing Christianity a service. You inspire me, a person of slight Catholic upbringing and tenuous faith, to turn back to the Church.

My greatest sadness these past few years is how the Christianists and fanatics have made the word "Christian" a dirty word for so many people. As if the inspiring, dangerous, beautiful, unforgettable words of Jesus were not as powerful now as ever. My book is, in fact, a defense of Christianity, of the core message of the Gospels, of peace and forgiveness and love and doubt, against the politicized brutality some have now turned it into. I’m not alone in this. David Kuo makes a moving case for just such a Christianity in his book (and we’ll be dialoguing next week about that on this blog and his). My book is not just about politics. The word "soul" in its title is no accident. It is really about the love of God in the person of Jesus. Money quote from Chapter Five:

The message of the Gospels seems to me to be constantly returning to this theme: those who set themselves up as arbiters of moral correctness, the men of the book, the Pharisees, are often the furthest from God. Rules can only go so far; love does the rest. And the rest is by far the most important part. Jesus of Nazareth constantly tells his fellow human beings to let go of law and let love happen: to let go of the pursuit of certainty, to let go of possessions, to let go of pride, to let go of reputation and ambition, to let go also of obsessing about laws and doctrines. This letting go is what the fundamentalist fears the most. To him, it implies chaos, disorder, anarchy. To Jesus, it is the beginning of wisdom, and the prerequisite of love.

Love. Agape. How much of it do you see on the gay-baiting, fear-mongering, politically controlling Christianist right?

Remember Arthur Chrenkoff? He did some great work showing how in the early period of the Iraq invasion, there were indeed signs of hope and progress, now fast eclipsed by civil war. He has a new book out, called "Night Trains". He describes it thus:

"A supernatural, alternative reality war thriller about a contemporary young man travelling back to help right the greatest wrong of the last century."

Calling Dr Freud. I asked him whether he now recants his former optimism about Iraq and scorn for MSM reporting, championed by me and others like Reynolds and Taranto and NRO. His response:

Re Iraq – it’s funny, because I’m not by nature an optimistic person (I think that the stereotypically romantic but melancholic and fatalistic Polish psyche has been too strongly beaten into us over the centuries between the hammer of Germany and the anvil of Russia), but I remain cautiously optimistic, even if for the sake of all the decent people in Iraq. I remember what it’s like to live in a shit state, so I feel great empathy for all the people over there who want to transcend the horror or the three decades of Baathism and the current problems just to have a normal life, that all too many in the West take for granted.

As my late grandmother used to say, things are rarely as good or as bad as they seem. I think that one way or another Iraq will muddle through. It really sickens me to see people who seem to cheer the problems over there just so they can score a political point domestically.

On that last point, I am in complete agreement. My only motive in exposing the lies and incompetence of the Bush administration is precisely because I want Iraqis to have a decent future, and my heart breaks for those brave souls facing down murder and blackmail each day to protect themselves in the face of our arrogant incompetence. I fear it’s too late now. But then I’m Irish, not Polish.

Garry Wills at his best.

A constitutional law professor writes:

Hewitt said this, to you, in an attempt to make you feel stupid.

"The only time the government needs a compelling reason to treat people differently is when they do so on the basis of race. I mean, that’s what’s so astonishing about this book, is that you purported to write a book about the Constitution, and you dont know how it works."

Well, since he kept saying he would flunk you in ConLaw, let me tell you, as someone who has graded several hundred constitutional law final exams, that I, and any other professor of constitutional law, even at the undergraduate level, would flunk a student who said something so dumb as Hewitt’s quote.

There are three levels of scrutiny that the courts apply to laws that treat people differently (ie, equal protection cases). In the first, the government merely needs a "rational basis" for making distinctions. I.e. we treat those who commit robberies differently, because there’s a rational basis for the law.  Or laws setting sexual age of consent, which clearly discriminate against those of a certain age, but there’s a rational basis, which the court accepts.

Then, there is "substantial relationship" test, which is applied only in sex discrimination cases. It means there must be a close connection between the law and some well-founded purpose (ie, it must be more than the assertion of some rational basis). It is consequently MUCH harder to have laws that treat men and women differently than it is to have laws that treat children and adults differently. But, for example, a state-run insurance plan that charged men and women different rates because of established differences in lifespan would probably meet this standard.

Finally, there’s the place where Hugh makes his gobsmackingly stupid error: strict scrutiny. In strict scrutiny, any discriminatory law must meet two standards – it must identify a compelling need of the government for the law that can only be met by discrimination, AND it must be narrowly tailored to meet that need.  Sometimes, lawyers joke that it is "strict in name, fatal in practice" because it is so hard to meet that standard. Hugh said it ONLY applied to race. He couldn’t be more wrong, as any graduate of my conlaw class could tell him. Strict scrutiny applies to race, religion, national origin, language – and, according to some, any fundamental freedom. There is a debate about which categories strict scrutiny should apply to, but no scholar I’ve ever read limits it only to race. Hewitt is dead wrong.

Actually, he knew he was dead wrong. That’s why he began the interview establishing that I hadn’t been to law school so he could then preen in front of his audience that I don’t know what I’m talking about.

These people are truly rattled by this book. I believe it’s a depth charge into the degerenacy of the current conservative movement. But make your own mind up. It’s available here.

A reader writes:

I can recall a Firing Line show when William F. Buckley, discussing some intractable inner-city problem with a liberal, made a comment to the effect that conservatives do not have solutions to all of our problems, we have approaches.

George Will has spoken of the conservative mindset as one with a sense of proportion about things, and the first rule of government should be to do no harm.

This probably explains why many truly conservative minded folks are so aghast over the President’s Iraq War policies and perplexed by the central theme of his second inaugural.

George Will and Bill Buckley? Don’t you realize they’re leftists these days?

A nugget of pop-culture cross pollination. But I hereby swear that all true South Park fans post excerpts from "The Family Guy" the way true conservatives quote Sean Hannity.

Oh, joy. He hasn’t read the book, of course. But, according to him, it can only be two things: "daft or dishonest". The insults these theocons are throwing my way is a sign of their real fear that the book exposes them for what they are: deeply alien to conservatism in its old, sane sense, theocratic hijackers of a great tradition of moderation and doubt. in the third chapter of the book, for example, "The Theoconservative Project," I carefully take every theocon argument about abortion, end-of-life issues and heterosexual sex and try to argue that they are completely incoherent on their own terms. I think it devastates the arguments of Ponnuru’s mentor, Robert George. But make your own mind up. You can buy it here and here. I welcome all intelligent arguments against my position, and when the book club reading periods ends after the election, I hope to address the toughest with as much candor as I can.

Yes, I haven’t read Ponnuru’s book either. A book that describes anyone who disagrees with it as "The Party of Death" excludes itself from reasonable discussion. But I restricted myself to criticizing its Coulteresque title (and its front cover Coulter blurb) – designed to persuade no-one but to rally and sell to the fanatical base (the Rove technique applied to intellectual discourse) – and to a couple of emails from people who had read the book.

But I’m thrilled they’re angry. They wouldn’t be if they didn’t know this book exposes them in ways few yet have. I’m not on the left. I’ve spent twenty-five years on the right. I know who these people are. And how far they have drifted from the principles they once might have held. And, along with growing numbers of real conservatives, I have no interest in going along with it any longer.

Tonight at 8 pm on CNN, as part of their superb series on broken government, Jeff Greenfield tackles the inflamatory debate on the right, to which my book seems to have provided some gasoline. I’m one of the interviewees, along with fellow heretic Bruce Bartlett. By the way, if you are interested in a book that Hugh Hewitt regards as a mess and as a threat to his version of Christianist Republicanism, you can buy it here or here and make up your own mind.

If the book can prompt the usually level-headed David Brooks to contradict himself in order to criticize it and has sent Hugh Hewitt into conniptions, it might just be on to something about what has gone wrong with American conservativsm.

Later the same night (11 pm Eastern, !0 Central), I’ll be on live on Bill Maher’s show, HBO’s Real Time, on a panel with Harry Belafonte and Christie Todd Whitman. Special guests: Harold Ford Jr and Arianna Huffington. You want fun? I’d watch.

Yesterday, Cheney gave every impression that using Khmer Rouge interrogation techniques was a "no-brainer" to him. Any sane person reading that transcript can see what he’s saying. But Tony Snow, who is more and more becoming a character from "Animal Farm" every day, now says this:

"Let me give you the no brainers here. No brainer No. 1 is that we don’t torture. No brainer No. 2: We don’t break the law – our own or international law. No brainer No. 3: the vice president doesn’t give away questioning techniques. No. 4, the administration does believe in legal questioning techniques of known killers whose questioning can, in fact, be used to save American lives."

Lies; lies, and more lies. At the heart of this election is whether the American people should support people who have contempt for the most basic of American liberties, who have suspended habeas corpus for the indefinite future and who think it is a "no-brainer", in this respect, to adopt the moral interrogation standards of the Khmer Rouge.

This should not be a partisan issue or even a political issue. It is a civic responsibility. Vote Democrat or abstain.