Re: Get 'Em

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because widespread belief that we are a nation of laws is in this case more important than whether we are in fact.

How's that work? Am I gonna run stop signs because Rove defies a supoena?


Posted by: bob mcmanus | Link to this comment | 02-15-08 11:01 AM
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I'm sure this isn't the first time I've been able to say this, but it's the first time I can remember being able to say this: I agree with Kotsko.


Posted by: SomeCallMeTim | Link to this comment | 02-15-08 11:02 AM
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There must be prosecutions and jail sentences.

Not that I expect there will be.


Posted by: apostropher | Link to this comment | 02-15-08 11:08 AM
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Kotsko was just pointing to another Democratic failure of nerve. For a long time Democrats were saying that they couldn't fight because public opinion wasn't with them and they couldn't win. Now they're saying that they don't have to fight because public opinion is with them and they're going to win the election.

Too many Democrats and consultants only have very short-term, concrete goals, often simply $$$, and too many basically agree with the Republicans on the stuff we're talking about. By now I think that all the stuff about "We'd like to fight this one but it's not a strategically good time" is a big lie. Either thay just don't care about the issue at all, or they support the Republicans. All they're trying to do is keep the left-liberal-progressive Democrats on board with smoke and mirrors.

But I'll be a Democrat as long as I'm an American, because, you know, two-party monopoly.


Posted by: John Emerson | Link to this comment | 02-15-08 11:16 AM
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Rule of law, my bitches!

I've been reading The Third Reich in Power recently, and while I'm surprised and thrilled to see how freaking wierd and foreign life under honest-to-God fascism seems to me, one thing that does pop out as an important barrier to us and, you know, them is the importance of a relatively even-handed application of consistent laws. The Bush administration has been trying to get away with shit, and there's a whole bunch of people who are trying to stand in their way and point to laws on the books. That's a very, very good thing.

(Another massive difference I'm noticing are the thousands of armed thugs from various parties who'd been wandering around for years even before 1933. Paramilitary battles on the streets are just way, way outside my experience.)


Posted by: Jackmormon | Link to this comment | 02-15-08 11:16 AM
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Here's the Kotsko argument.


Posted by: ogged | Link to this comment | 02-15-08 11:17 AM
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What 3 said.

Here as well as there.


Posted by: nattarGcM ttaM | Link to this comment | 02-15-08 11:18 AM
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because widespread belief that we are a nation of laws is in this case more important than whether we are in fact.

Well, sure, in the sense that laws belong to the social imaginary or whatever.


Posted by: Michael Vanderwheel, B.A. | Link to this comment | 02-15-08 11:19 AM
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Widespread belief?"

Cite please just kidding

Part of my resistance to Obamism is that I can't seem to wrap my mind around the concept of the "moral character of a nation", as defined by either right or left. Material factors, like demographics or unemployment or regulation seem more important.

Course consumer sentiment was way down today.

(Prob pawned by Vanderwheel)


Posted by: . | Link to this comment | 02-15-08 11:20 AM
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Seems to me that if that kind of reasoning is at all commonplace, then the cat is already out of the bag.


Posted by: Michael Vanderwheel, B.A. | Link to this comment | 02-15-08 11:20 AM
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10 to nobody in particular.


Posted by: Michael Vanderwheel, B.A. | Link to this comment | 02-15-08 11:20 AM
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Paramilitary battles on the streets are just way, way outside my experience.

Twentieth-century Americans are lucky that way.


Posted by: Flippanter | Link to this comment | 02-15-08 11:24 AM
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I posted about this a few years back but I can't find it (because it's gone) and nobody reads my blog anyhow (I feel you, Farb) but, essentially, pretending we're a nation of laws doesn't make it so. This shit has to be dragged into daylight and stamped on, whatever the cost.


Posted by: Sifu Tweety | Link to this comment | 02-15-08 11:25 AM
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Setting the precedent that it's possible to commit high crimes against your Republic, in full public view, and then retire to the talk-show circuit would seem like a bad idea.


Posted by: DS | Link to this comment | 02-15-08 11:27 AM
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Perhaps unsurprisingly, I agree with Tweety and the Doc in 13 and 14.


Posted by: Eric | Link to this comment | 02-15-08 11:31 AM
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re: 13

I blogged about it on my [defunct-but-to-eventually-rise-from-grave] blog, too, iirc.

Anyway, lengthy jail terms, minimum.


Posted by: nattarGcM ttaM | Link to this comment | 02-15-08 11:33 AM
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Something that in my memory goes back to Iran-Contra, but may go back way before it (Iran-Contra's about the beginning of my having any sense of what was going on in the political news), is the idea that law-breaking in the service of policy disagreements isn't really law-breaking, and isn't really wrong in the sense that anyone should be punished for it. That's evil, and really needs to be stamped out (putting me right on board with 13, 14 and 15.)


Posted by: LizardBreath | Link to this comment | 02-15-08 11:33 AM
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Try those fuckers and jail 'em. Foolishmortal should have a series of many of him being led away in handcuffs.


Posted by: Megan | Link to this comment | 02-15-08 11:35 AM
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Institution building (and destruction?) has been a topic on some blogs recently, especially in reference to third world development. IIRC, Dana Rodrik has chosen to just blow it off. OTOH, MY posted that we do democracy overseas because we don't know how to build social institutions, and someone who had worked in Eastern Europe slapped him silly.

Since feelthy Republicanism works best with a weakening of (some kinds of) social bonds and felt obligations, I am paranoid enough to believe that the whole housing crisis (for instance, there are many more) is a designed event with the expected result of mass defaults (walk away renee) & bad credit, thereby changing Americans' attitudes toward our institutions.

Point for Obamism, I suppose, if it works, and if it works toward a nationalism rather than communitarianism.


Posted by: bob mcmanus | Link to this comment | 02-15-08 11:35 AM
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We can call the fiction of being a nation of laws important, but part of that fiction would seem to include when someone does something bad, they get smacked. It doesn't preserve the idea of a nation of laws to pretend everything's okay when everyone can point to violations of it.


Posted by: Cala | Link to this comment | 02-15-08 11:36 AM
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You are all crazy, and apparently--on skimming the link in 6--I agree with ogged, not Kotsko.


Posted by: SomeCallMeTim | Link to this comment | 02-15-08 11:37 AM
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everyone can point to violations of it

That's an important part though, and I don't think most people think we're living under a suspended constitution. My concern (which I project onto the Democrats) is that if we provoke a crisis/hold hearings, we'll lose, and then what?


Posted by: ogged | Link to this comment | 02-15-08 11:38 AM
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22: 'Zactly.


Posted by: SomeCallMeTim | Link to this comment | 02-15-08 11:39 AM
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Don't be a wuss. We won't lose.


Posted by: Sifu Tweety | Link to this comment | 02-15-08 11:39 AM
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if we provoke a crisis/hold hearings, we'll lose, and then what?

If we don't provoke a crisis, what will we have to lose?


Posted by: Eric | Link to this comment | 02-15-08 11:40 AM
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But even if we do, we can't lose worse than we would by not fighting it.


Posted by: Sifu Tweety | Link to this comment | 02-15-08 11:40 AM
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My concern (which I project onto the Democrats) is that if we provoke a crisis/hold hearings, we'll lose, and then what?

It's not a totally imaginary concern, but at some point we have to risk it or there's no penalty for lawbreaking and those bastards can do anything they want.


Posted by: LizardBreath | Link to this comment | 02-15-08 11:41 AM
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I consider this all on-topic, and could link to the Thoma post about the Bush administration blocking Elliott Spitzer's attempt to control "predatory lending" with an obscure clause in an 1863 banking law. It's pretty funny.

But I don't think there is a way for the Democrats to investigate Bush adminstration crimes without it being interpreted by the MSM as partisan and thereby just damaging the "rule-of-law" stuff more than enhancing it. Especially after the Clinton impeachment etc.

Which is why I want to call in the Swedes & Germans.


Posted by: bob mcmanus | Link to this comment | 02-15-08 11:41 AM
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25, 26: Jinx.


Posted by: LizardBreath | Link to this comment | 02-15-08 11:41 AM
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Also, I wish to object to the proposition that "we" would be provoking a crisis. The crisis has been provoked. "We" would be exposing it.


Posted by: Eric | Link to this comment | 02-15-08 11:42 AM
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25, 26: You people are crazy. Sometimes pretending is enough. Marrieds, ring in here.


Posted by: SomeCallMeTim | Link to this comment | 02-15-08 11:43 AM
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It has been just freaky bizarre to me that, even though Bush admitted in public that he'd broken the law on multiple counts - In public! In an interview! - back in late 2006, there has been no serious move to impeach him. And no matter how people explain to me that no, no, faced with evidence that Bush has been committing crimes, the Republicans in Senate and Congress would still vote against impeachment because Bush is a Republican and it's apparently Republican party policy that major criminals holding office shouldn't be impeached even if they confess in public and, furthermore, the mainstream media would make the Republicans look good for refusing to impeach a confessed criminal... well, put it this way: even the explainations for why Bush hasn't been impeached yet sound freaky-weird.

It's also freaky-weird that Libby's trial was delayed because he was involved in the 2006 election (uh, he's charged with impeding investigation into a treason charge, and Bush said right out there in public that even if in general treason isn't punished, it will be for the Valerie Plame case...) why does Libby still have a job? Let alone, a job with an important role that means he gets to have a trial delayed? and it's beyond freaky-weird into downright disturbing that right after Libby was found guilty, Bush commuted the sentence so that Libby couldn't ever be made to testify against Cheney or Bush.

I mean, this isn't financial malfeasance we're talking about - though Christ knows there's been enough of that in the US since 2001 to bring down three British governments - this is a President who has confessed to using the power of his office to commit crimes while he's still in office, and a President who has used the power of his office to prevent further investigation incriminating him in treason charges where he must have been, at very least, implicated in the cover up.

Seriously. I'm British, we know all about hiding crimes from investigators so they don't come out for 30 to 50 years, that's what the British Civil Service does, just ask Sir Humphry: but, dude: once you confess to your crimes in a national news source, once it becomes evident from the national news that you've been doing cover-up for a traitor, you're going down.

It is bizarre-to-weirdness that, in the US, this just doesn't happen.

Please don't try to explain it to me again, makes me head hurt. Have a cup of tea.


Posted by: Jesurgislac | Link to this comment | 02-15-08 11:43 AM
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22: If we're living under a suspended constitution, the crisis is already provoked and by ignoring we've already lost. At what point does 'keep the powder dry' become a euphemism for cowardice?


Posted by: Cala | Link to this comment | 02-15-08 11:44 AM
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22: Then things will be just as bad as they had been, but we will have a clearer understanding of how badly off we are.

If we don't fight, we can expect more of the same, probably by some of the same people, as soon as 2003.

The Iran-Contra people got off far too easily, and there was not admission by the right wing that they deserved any punishment at all. (GHW Bush was one of the bad guys who walked). When GW Bush came into office, he came in expecting to do more of that and expecting to get away with it.


Posted by: John Emerson | Link to this comment | 02-15-08 11:44 AM
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You are all crazy

Lengthy jail sentences for the administration are the very minimum a civilized society should be able to expect for this level of death and malfeasance. Personally, I think the situation calls more for Mr. Sa'id Al-Bishi's solution, but I realize that's likely a minority opinion.


Posted by: apostropher | Link to this comment | 02-15-08 11:45 AM
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At what point does 'keep the powder dry' become a euphemism for cowardice?

A long time ago already.


Posted by: apostropher | Link to this comment | 02-15-08 11:47 AM
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Then things will be just as bad as they had been, but we will have a clearer understanding of how badly off we are.

By "we," do you mean the American people, or some subset of the American people that includes you. And if the latter, how sure are you that you're the biggest group around?


Posted by: SomeCallMeTim | Link to this comment | 02-15-08 11:47 AM
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And, while we're at it, do you agree that hearings are necessary, or would it be better--as I think Kotsko argued the Democrats must believe --to deliberately fail to acknowledge the constitutional crisis, because widespread belief that we are a nation of laws is in this case more important than whether we are in fact.

That honestly sounded frighteningly absurd to me. Like, I don't know, seeing Borat in the Senate or something. I'm glad you updated with a link to what you're talking about. I still disagree with it, but at least the longer version is sane enough to rebut.

Insofar as there's a rational calculation behind the Democratic strategy, I've taken it to be that the acknowledgment of the suspension of the rule of law would undermine the necessary fiction that such a suspension would result in a horror unbearable to us as a freedom-loving people. ... The Democrats--again, insofar as they've thought about this--are hoping to maintain the force of the fiction and keep using it to ground the rule of law, which they hope will be restored when Bush is gone.

If your analysis is correct, then Democrats are just relying on hope without, you know, doing anything to make it happen, maybe even doing things that wind up making it less likely to happen. I mean, restoring rule of law doesn't just "happen," someone has to do it, to make it happen, and they're supposedly the people who can and should do it.

But they aren't. "Impeachment is off the table." They give Bush the money he asks for to fund the war. Telecom immunity from prosecution looks likely to pass; good for Dodd for delaying it this much.

I guess widespread belief that we are a nation of laws during a brief period when it isn't true would make it easier to restore. Sure, why not. But how do we make that period end, if not with hearings and subpoenas and jail time?

On preview, apparently I agree with everyone here except ogged and SCMT.


Posted by: Cyrus | Link to this comment | 02-15-08 11:48 AM
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A correspondent accused me of writing the piece just to show Krugman how properly to do Nixon comparisons.


Posted by: Eric | Link to this comment | 02-15-08 11:50 AM
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"As soon as 2013"


Posted by: John Emerson | Link to this comment | 02-15-08 11:50 AM
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I'm with the trial and imprisonment consensus, despite the obvious appeal of 35. Given the likelihood of mass pardons on Bush's way out, there would be considerable justice, not to mention entertainment value, in having those trials and imprisonments occur in France.


Posted by: Not Prince Hamlet | Link to this comment | 02-15-08 11:50 AM
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My suspicion is that the disagreement I (and maybe, though I think not, ogged) have with everyone else is whether or not "rule of law" means anything fixed.


Posted by: SomeCallMeTim | Link to this comment | 02-15-08 11:50 AM
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whether or not "rule of law" means anything fixed.

Wrong thread.


Posted by: Michael Vanderwheel, B.A. | Link to this comment | 02-15-08 11:53 AM
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We can't even get the Senate to oppose telcom immunity; how would we manage anything like proper prosecutions?


Posted by: Bostoniangirl | Link to this comment | 02-15-08 11:55 AM
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Look, the impeachment of Nixon did not exactly being a new era of humility to the Presidency and Republican Party.

How was Europe improved?

By losing some sovereignty. Obama's only usehul option is to move the warcrimes out of partisanship (and he can stand above the fray) by inviting the world in. Germany & Italy are itching to get their hands on people. Give 'em to them. Than maybe Sweden and England and Iraq will get the confidence to play.

Bush & Cheney should be tried in Iraq.


Posted by: bob mcmanus | Link to this comment | 02-15-08 11:56 AM
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What at stake for me here is whether the next criminal administration (R or D, most likely R) comes into office knowing that they can get away with anything they do. Even knowing that they might pay a price, they still have been willing to break the law. Knowing that they will not pay the price, there's nothing they won't do. Especially because the Bush administration has been working to write executive impunity into the law, and at least three members of the Supreme COurt support them.

Tim never ceases to amaze me. Suffice it to say that I'm untroubled when he calls me crazy. But his shit apparently comes from some class he took once, so he thinks it's sane.


Posted by: John Emerson | Link to this comment | 02-15-08 11:57 AM
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the impeachment of Nixon did not exactly being a new era of humility to the Presidency and Republican Party

The point is not to change hearts and minds, but to draw a line you can't step over without consequence.


Posted by: Eric | Link to this comment | 02-15-08 12:00 PM
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The people principally responsible are going to float away on a raft of pardons, and it's likely much too late to do anything about that. But at the very least there should be thorough investigations, so the administration's crimes don't fall down the history hole.

Not that I expect any great changes to come from revelation. We know what the US did in Iran, and Chile, and Guatemala, et cetera ad nauseum, but a fat lot of good that's done.


Posted by: Jesus McQueen | Link to this comment | 02-15-08 12:00 PM
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You people are crazy. Sometimes pretending is enough. Marrieds, ring in here.

You are so right Tim. When you stop being willing to pretend, shit just gets messy.


Posted by: Di Kotimy | Link to this comment | 02-15-08 12:02 PM
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Ditto on SCMT's plea to have "rule of law" defined prior to hashing out this argument. Discretion is an element of any anaylsis of laws, and especially so when talking about executive branch Constitutional powers. I agree that the Bush Administration has exceeded its powers in several regards, but this battle between the executive and legislative has been going on throughout our nation's history. FDR's manipulation of the Supreme Court to get the New Deal passed immediately comes to mind, and that was surely much more bold and rediculous than anything Bush has done.

I think the Court, and not Congress, is the proper place to have battles over the extent of executive power waged, else it looks too much like partisan political fighting and further erodes public confidence in the system.

Also, pardon my ignorance, but aside from Perjury charges, what crimes that carry prison sentences are Bush Administration officials and Bush himself guilty of?


Posted by: PeaDub | Link to this comment | 02-15-08 12:02 PM
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47:If the consequences don't deter, then the point is vengeance, and it can't be a bipartisan or universal vengeance.

The point is to change hearts and minds. Deterrence.


Posted by: bob mcmanus | Link to this comment | 02-15-08 12:03 PM
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"rule of law" means anything fixed.

Vagueness at the margins doesn't mean there aren't core cases.


Posted by: washerdreyer | Link to this comment | 02-15-08 12:04 PM
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that was surely much more bold and rediculous than anything Bush has done

This strikes me as indefensible. It is at least undefended here.


Posted by: Eric | Link to this comment | 02-15-08 12:04 PM
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The point is to change hearts and minds.

Bob, James Madison disagrees with you:

If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.

Posted by: Eric | Link to this comment | 02-15-08 12:07 PM
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Also, pardon my ignorance, but aside from Perjury charges, what crimes that carry prison sentences are Bush Administration officials and Bush himself guilty of?

A War of Agression, and umpteen other violations of the Geneva, Hague, and Torture Conventions. Hangin' offenses. The one that pisses me off is the bombing of civilian areas during an occupation to quall an insurgency. There is also the one about disarming militias.

These are Int'l crimes, and should not, should not, be dealt with domestically. This is fucking important. And pardons are irrelevant internationally, I think.


Posted by: bob mcmanus | Link to this comment | 02-15-08 12:08 PM
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50: Warrantless wiretapping. Bush confesses to being guilty.

Also, revealing the identity of a covert CIA agent - and being implicated in the cover up. Libby's conviction points to Cheney as the traitor: Bush's exercise of his powers to ensure Libby isn't jailed/can't be pressed to talk directly implicates Bush in covering up after the traitor.

There are a lot of financial shenanigans going on around the Iraq war/the "reconstruction", but I admit that's the kind of thing that elected politicians can usually claim not to know about "my staff didn't brief me" and their staff can't prove otherwise and they go to jail instead.


Posted by: Jesurgislac | Link to this comment | 02-15-08 12:11 PM
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The people principally responsible are going to float away on a raft of pardons, and it's likely much too late to do anything about that.

I think I'm serious that it would be good to establish a precedent that American leaders are subject to prosecution overseas if we won't/can't do it ourselves (pardons, lack of political will), and that torture is egregious enough that that's the appropriate remedy.


Posted by: Not Prince Hamlet | Link to this comment | 02-15-08 12:12 PM
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Also, what Bob said, but as Bob notes, that's an international crime and needs to be dealt with by the Hague. It'll be easier to extradite Bush, Cheney, Rumsfeld et al once they're in jail in the US. We'll wait.


Posted by: Jesurgislac | Link to this comment | 02-15-08 12:12 PM
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50: I assume that Jesurgislac is referring above to the warantless surveillance program which was in violation of a criminal law with penalties of up to five years in prison. Now that they've publicly confessed to waterboarding three detainees, everyone involved in ordering that has also confessed to violating criminal law.


Posted by: washerdreyer | Link to this comment | 02-15-08 12:14 PM
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What 53 said. #50 was ignorant.

Tim and Peadub strike me as batshit crazy, and the way they speak makes me suspect that we're dealing with a pathology of education. Their articular way of being stupid would not be accessible to a stupid, uninformed person. It's real boutique gourmet stupidity.

Most offensive is the insistence of starting from zero, as though we were only just now starting to think about the crimes of the Bush administration and must go back to the very foundations. One would have expected a minimally politically-aware person to have done his metaphilosophical work on this question, if he or she thought that necessary, already.


Posted by: John Emerson | Link to this comment | 02-15-08 12:15 PM
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This strikes me as indefensible. It is at least undefended here.

I'd rather not be put in a position of indirectly defending the Bush Administration, but, when your favored policies keep getting struck down as unconstitutional, and your response is to threaten to expand the Supreme Court by appointing new Justices who will interpret the Constitution in a way that will make your policies Constitutional, that is a direct and unabashed attack on the notion of rule of law. At that point I'm sure there were many "sky is falling" responses at that time, too.

On preview I see that John Emerson has issued a very clever, I'm sure he thinks, personal attack. Nice.


Posted by: PeaDub | Link to this comment | 02-15-08 12:18 PM
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24

"Don't be a wuss. We won't lose."

26

"But even if we do, we can't lose worse than we would by not fighting it."

This was the thinking that led to the Confederate States of America. It didn't work out so well for them.


Posted by: James B. Shearer | Link to this comment | 02-15-08 12:18 PM
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I think I'm serious that it would be good to establish a precedent that American leaders are subject to prosecution overseas if we won't/can't do it ourselves (pardons, lack of political will), and that torture is egregious enough that that's the appropriate remedy.

It's been a long time since I wasn't ignorant on this, but isn't what your saying basically the gist of the International Criminal Court


Posted by: Di Kotimy | Link to this comment | 02-15-08 12:19 PM
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It is so fucking important to internationalize the Bush crimes.

The Lesson from WWII is clear. Germany is not going to bomb France anymore, and it is not only by a long shot because France has nukes.

"Rule of Law" implies a community, and and an int'l regime of enforced laws can weaken national exceptionalisms.

It is the only way I know to change the world and end the fucking wars.


Posted by: bob mcmanus | Link to this comment | 02-15-08 12:19 PM
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your s/b you're...


Posted by: Di Kotimy | Link to this comment | 02-15-08 12:19 PM
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62: Yeah, if you elide the difference between fighting to preserve the rule of law and fighting to protect the peculiar institution, it looks pretty much the same.


Posted by: LizardBreath | Link to this comment | 02-15-08 12:20 PM
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And of course the difference between 'fighting' through the use of legal process and fighting by shooting at people is also in there.


Posted by: LizardBreath | Link to this comment | 02-15-08 12:22 PM
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"Rule of Law" implies a community, and and an int'l regime of enforced laws can weaken national exceptionalisms.

Indeed it does, and there is no such community, no such regime.


Posted by: Flippanter | Link to this comment | 02-15-08 12:23 PM
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It's been a long time since I wasn't ignorant on this, but isn't what your saying basically the gist of the International Criminal Court

Also ignorant, but I think that's right, and also that that's why the US has refused to sign on to the ICC. Maybe Napi or Katherine could help us out here?


Posted by: Not Prince Hamlet | Link to this comment | 02-15-08 12:24 PM
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I would like American officials brought to justice according to international law. I would also like a pony.


Posted by: Jesus McQueen | Link to this comment | 02-15-08 12:24 PM
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61: I don't think that anyone should be starting from zero at this point, Peadub. Where have you been, Mars? If we wanted your kind of thoughtfulness we'd watch TV.

And quit whining, you overeducated dummy.


Posted by: John Emerson | Link to this comment | 02-15-08 12:25 PM
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to threaten to expand the Supreme Court by appointing new Justices who will interpret the Constitution in a way that will make your policies Constitutional, that is a direct and unabashed attack on the notion of rule of law

Roosevelt didn't "threaten to expand the Supreme Court," he tried to get Congress to pass a law that would have allowed him to appoint a Justice to the Court for each who did not retire within six months of his seventieth birthday. (In keeping with a plan once proposed by Justice McReynolds, of all people.)

This law failed to pass Congress. Had Congress passed the law, it would have been in keeping with past practice, as when the Court was "packed" during the Grant administration, arguably and evidently to overturn the legal tender rulings, and it would have been in keeping with the Constitution.

Roosevelt undoubtedly overreached politically, and got knocked back. But he behaved in keeping with the Constitution, and with the rule of law.


Posted by: Eric | Link to this comment | 02-15-08 12:26 PM
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66 67

So if you lose and end up much worse off than if you hadn't fought you can console yourself by saying it was a good cause.


Posted by: James B. Shearer | Link to this comment | 02-15-08 12:28 PM
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70: Yeah, but it's not a lot crazier than hoping to have them prosecuted here, and every once in a while a pony happens.


Posted by: Not Prince Hamlet | Link to this comment | 02-15-08 12:28 PM
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69: The most frequently-repeated objections to the ICC treaty were those alluded to by Bob: the loss of sovereignty implicit in acceding to "universal" foreign jurisdiction over U.S. personnel.


Posted by: Flippanter | Link to this comment | 02-15-08 12:29 PM
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Yes, the International Criminal Court exists precisely so that people like foreign mercenaries killing for hire in a country under occupation, who can't be tried in the country in which they committed their crimes, and won't be tried by their native country because it refuses to do so, can be tried by the ICC. The ICC exists solely and exclusively to try crimes where there is no other recourse.

The Bush administration refused to sign up to it in summer 2001, making a cynical person wonder if they had already planned to commit these monstrous crimes then.


Posted by: Jesurgislac | Link to this comment | 02-15-08 12:29 PM
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every once in a while a pony happens

"Ponies Happen" would be an excellent Obama bumper sticker.


Posted by: Eric | Link to this comment | 02-15-08 12:29 PM
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I don't think that we'll be worse off fighting than not fighting. If we lose the fight we'll be much unhappier than we would otherwise have been, but we'll be unhappy because we'll have a clearer realization of how things really are.


Posted by: John Emerson | Link to this comment | 02-15-08 12:31 PM
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God I loves me some bob mcmanus. Carry on.


Posted by: Ugh | Link to this comment | 02-15-08 12:32 PM
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We didn't sign on to the ICC, and, moreover, Congress passed a law authorising the use of force to prevent US servicepeople (or, I assume, politicians) from being tried in such an overseas court----aka "The Hague Invasion Act."


Posted by: Jackmormon | Link to this comment | 02-15-08 12:32 PM
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making a cynical person wonder if they had already planned to commit these monstrous crimes then.

`they' were certainly talking about Iraq well before 2001.


Posted by: soup biscuit | Link to this comment | 02-15-08 12:33 PM
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FDR was trying to change the size of the court through legal means, and changing the size of the court has precedent. The court expanded to 7 under Jefferson in 1807, to 9 under Van Buren (1837), to 10 under Lincoln (1863), shrank to 6 under Johnson (1866), and then returned to 9 under Grant (1869).


Posted by: washerdreyer | Link to this comment | 02-15-08 12:35 PM
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And quit whining, you overeducated dummy.

John, come on. You can do better than name-calling.


Posted by: Di Kotimy | Link to this comment | 02-15-08 12:35 PM
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Pwned by 72, but I had to research.


Posted by: washerdreyer | Link to this comment | 02-15-08 12:36 PM
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80: Fuck that. We've spent the last six years showing the world exactly why U.S. sovereignty needs some limits. The concern that jurisdiction could be abused is real--Jones vs. Clinton proved that--but the argument that the U.S. can be relied on to enforce its own laws is in tatters.


Posted by: Not Prince Hamlet | Link to this comment | 02-15-08 12:38 PM
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This was the thinking that led to...It didn't work out so well for them.

That one made sense a few days ago, in another context. Don't let it go to your head.

So if you lose and end up much worse off than if you hadn't fought you can console yourself by saying it was a good cause.

Yes: when one is trying to accomplish something that involves risk, the goodness of the thing is relevant.


Posted by: Michael Vanderwheel, B.A. | Link to this comment | 02-15-08 12:39 PM
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63:Getting the ICC thru the Senate would almost certainly involve retroactive immunity, and I believe the ICC in any case has too many protections of sovereignty. If we did belong to the ICC, I think standing to say American justice was broken would be politically impossible.

But nations, by law & precedent, do have the authority to proscute Int'l war crimes.

If Obama was a good man, who gave a shit about torture and a million dead Iraqis, he would simply rendition them without extradition. Let the Democratic Congress try to impeach Obama. And I don't give a flying fuck about any relevant Americans laws and processes on warcrimes anyway.

Would Obama be just the same as Bush? Of course not.


Posted by: bob mcmanus | Link to this comment | 02-15-08 12:39 PM
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78

"I don't think that we'll be worse off fighting than not fighting. If we lose the fight we'll be much unhappier than we would otherwise have been, but we'll be unhappy because we'll have a clearer realization of how things really are."

This is wrong as a general matter. Doubt about the outcome of a fight has a restraining effect which goes away after the fight is lost.


Posted by: James B. Shearer | Link to this comment | 02-15-08 12:42 PM
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83: Amongst my weapons is name-calling. I have others, of course. He was already whining about a "personal attack", the big baby.


Posted by: John Emerson | Link to this comment | 02-15-08 12:43 PM
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And I don't give a flying fuck about any relevant Americans laws and processes on warcrimes anyway.

Wow, that's enlightened.


Posted by: Flippanter | Link to this comment | 02-15-08 12:44 PM
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85.---Well, yes. But it's a difficult problem to address now. It would be much much better for the American system of law to deal with these motherfuckers, not least of all because I'm afraid of what the US would do to any country that tried to render international judgment.


Posted by: Jackmormon | Link to this comment | 02-15-08 12:46 PM
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88: James, I didn't state it as a general matter. I stated it for this particular case. It's not true of playground scuffles, for example, or many, many other things described as "fights". Just in this case.

At the moment, Republicans are confident that they can break the law with impunity. If we fight and lose, they will remain confident that they can break the law with impunity. No loss.

They are also confident, based on multiple non-fights, that we will never fight. This is in itself a good reason to fight.

It is also true (as Gingrich knew very well) that for an insurgent a lost fight can help, since it helps you define yourself against your opponent.


Posted by: John Emerson | Link to this comment | 02-15-08 12:48 PM
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91: Agreed. But I would much, much rather have Dick Cheney and George Bush spending the rest of their sorry lives in a French prison--I'd settle for Belgian--than the most magicalest rainbow pony there ever was.


Posted by: Not Prince Hamlet | Link to this comment | 02-15-08 12:48 PM
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He was already whining about a "personal attack", the big baby.

Well, yeah. I mean, I don't know how he got "personal attack" from an innocuous comment about his "boutique gourmet stupidity." But still, sometimes explanations of why someone is wrong (see eg. 72 and 82) prove more interesting and productive than simply calling them a big poo poo head.


Posted by: Di Kotimy | Link to this comment | 02-15-08 12:48 PM
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79:1st part of 87c may have lost me some love.

This is all shakey and dubious. Nuremberg stood on shakey ground, Eichmann's kidnapping was very questionable and the fairness of the Israeli court not beyond criticism. I really wouldn't hand anybody over to an Iraqi court.

But I trust Italy and Sweden and Germany etc to provide "fair enough" investigations. America, at least in theory tried to change the world after WWII by essentially surrendering sovereignty from a position of unprecedented power. Let's do it again.

We need some shame and humility and renewed pride. This is how to do it.


Posted by: bob mcmanus | Link to this comment | 02-15-08 12:51 PM
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There have been a shitload of escapes from French prisons. Really spectacular, high-tech escapes, as well as boring and sad escapes. I'd trust the Germans to build better prisons---plus, their food is terrible, so there's that.


Posted by: Jackmormon | Link to this comment | 02-15-08 12:52 PM
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Which crimes are you guys talking about?
If it's the domestic spying and privacy stuff, then I think we're screwed. The evidence seems to be that the majority of top democrats wan these powers for themselves too. So who's going to do the investigating?

If it's the Iraq/war on terror related war crimes stuff then there might be some chance of rounding up blackwater guys and low level CIA operatives.


Posted by: WillieStyle | Link to this comment | 02-15-08 12:53 PM
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We need some shame and humility and renewed pride. This is how to do it.

Yes, people whose politicians and officials are displaced by foreigners tend to react by looking for and correcting the flaw within, Iraq being one example.


Posted by: Flippanter | Link to this comment | 02-15-08 12:55 PM
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My main point, which I've now repeated twice, is that he seemed to be starting from zero, as if the whole question of illegality had just been raised and had to be built up from the very beginning. And then he raised the Roosevelt red herring. We could have argue about Roosevelt's court packing, which we now are doing, or we could have continued arguing about the topic we were on.

One thing trolling is is trying to force an argument about priors, which is what this guy did. There are various ways of refusing to argue about priors, and insult is a good one. There's really no rational way to refuse to argue.

I troll all the time, of course, but that doesn't mean that I have to be nice to every other troll motherfucker that comes along.


Posted by: John Emerson | Link to this comment | 02-15-08 12:55 PM
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90:Really, flip? I should "respect" the MCA?

If Congress legalizes waterboarding, I need to recognize it as the law of the land?

You need some enlightening, not me. Just as Jim Crow laws fell to a new sense of wider community, so American laws are pretty much irrelevant to my sense of community.

Sweden will approve of me stopping at stop signs. I feel I need Sweden's approval, not yours, or Congress's, or the SCOTUS.


Posted by: bob mcmanus | Link to this comment | 02-15-08 12:56 PM
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Really spectacular, high-tech escapes, as well as boring and sad escapes.

Also: harrowing, tropical hellhole escapes!


Posted by: Michael Vanderwheel, B.A. | Link to this comment | 02-15-08 12:56 PM
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Sometimes people are just big poo heads, Di. Big poo heads aren't interested in knowing why that's the way they are; they've got bigger problems (eg poo in the head).


Posted by: ben w-lfs-n | Link to this comment | 02-15-08 12:57 PM
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Excuse me. "Poo poo", not just "poo".


Posted by: ben w-lfs-n | Link to this comment | 02-15-08 12:58 PM
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95: Personally, the part of 87 I didn't like is where you say that President Barry should use rendition powers.


Posted by: washerdreyer | Link to this comment | 02-15-08 12:58 PM
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98:Iraq had little choice, America & Obama will. That is precisely the point. There would be no doubt in anyone's mind that we could stop the Cheney trial in Germany if we wanted to.

It wouldn't be unanimously "voluntary." There certainly would be American resistance and discomfort. We would gain merit by handling it peacefully


Posted by: bob mcmanus | Link to this comment | 02-15-08 12:59 PM
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that doesn't mean that I have to be nice to every other troll motherfucker that comes along

Really? There're no community norms among trolls? You don't secretly write each other to congratulate on a job well done? No mutual admiration for flair and technique?


Posted by: Megan | Link to this comment | 02-15-08 1:01 PM
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100: Enlighten away, Bob.

First, you might identify the American processes that you're willing to skip over in your eagerness to surrender people you don't like to authorities that will do your bidding and how you differ in this respect from the people you don't like.

Second, you might explain the relevance of your sense of community to anything I could potentially be persuaded to care about.


Posted by: Flippanter | Link to this comment | 02-15-08 1:02 PM
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104:I can't imagine any other way. And it would be better than an Obama administration turning a blind eye while Sweden did an Eichmann-like kidnapping.

I said I didn't care about American law.


Posted by: bob mcmanus | Link to this comment | 02-15-08 1:03 PM
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Yeah, but don't you want the next Executive to try to follow it or change it through legal means?


Posted by: washerdreyer | Link to this comment | 02-15-08 1:07 PM
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I stand corrected re the impact of the FDR court-packing plan. I appreciate it.

I didn't want to "start from zero" and wasn't questioning whether Bush Aministration officials have acted illegally. I was questioning whether 3 and 14's calls for lengthy jail terms made any sense when talking about high-level administration officials. Aside from perjury prosecutions for testimony given before Congress, I'm not sure they do. Also, John Emerson is a jerk.


Posted by: PeaDub | Link to this comment | 02-15-08 1:08 PM
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It's the law of the jungle, Megan. Don't let any troll motherfucker tell you different.


Posted by: John Emerson | Link to this comment | 02-15-08 1:08 PM
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107:Jesus flip there is so much bullshit there I don't know what to shovel.

1) I won't be rendering anyone. Obama will, and he will take the heat.

2) Sweden and Germany will not "do our bidding." I am confidant the proceedings would be handled with the seriousness they deserve.

3) Barry would differ because he would be handing suspected war criminals over to civilized nations for public trials, rather than handing innocents over to Syria for torture. I am sorry you are having trouble distinguishing the difference.

As far as I can tell, 107c was nonsense.


Posted by: bob mcmanus | Link to this comment | 02-15-08 1:09 PM
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Nice try, PeaDub.


Posted by: John Emerson | Link to this comment | 02-15-08 1:10 PM
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109:As far as I know, rendition is the law of the land.

And as I have said, I would not like to see Pres Barry simply recind that law and by fiat end rendition. Let Obama render a couple folk, and let's have a very public discussion.

Personally I think rendering for the purpose I seek should be part of Int'l law. Preferably to a strengthened ICC.


Posted by: bob mcmanus | Link to this comment | 02-15-08 1:14 PM
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112:

1. I thought you were all up in collective guilt's panties, Bob. Aren't we all guilty of Commander Cuckoobananas' many sins? E.g., failing to provide the many accused due process?

2. Delivering prisoners to cherrypicked jurisdictions smacks differently to me. De gustibus!

3. See above. I have nothing against trials, but the fantasy of whisking one's enemies away to be dealt with is juvenile at best, Bushesque at worst.

4. You don't care about American law, but you care about the spirit of community. Could you paint a picture of this spirit? Is it a unicorn? A unicorn with wings? A narwhale?


Posted by: Flippanter | Link to this comment | 02-15-08 1:21 PM
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107b: It works like this:

German judge: CHENEYBUSH IZ WAR CRIMINAL. I CAN HAZ?

President McManus: O RLY? GOOD KITTEH. EKSTRDAIT!


Posted by: Bave Dee | Link to this comment | 02-15-08 1:21 PM
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IM IN UR WHITEHAUS EKSTRDAITIN UR WAR CRIMINALZ.


Posted by: Bave Dee | Link to this comment | 02-15-08 1:23 PM
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AFAIK, (where's Katherine?) the law of the land doesn't allow for rendering American citizens.


Posted by: washerdreyer | Link to this comment | 02-15-08 1:23 PM
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114c:For example, I do not approve of trying Saddam Hussein in Iraq. I do not approve of trying Khalid Sheikh Muhammed in the United States. Even tho their crimes were committed in those jurisdictions.

The reasons should be obvious.

And I writing too much. Outahere


Posted by: bob mcmanus | Link to this comment | 02-15-08 1:25 PM
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118: On the other hand, it's been empirically demonstrated broadly that the law of the land isn't a hard constraint on this adminstration.


Posted by: soup biscuit | Link to this comment | 02-15-08 1:27 PM
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Right, but this narrow disagreement is over whether Pres. Barry should render members of the current administration.


Posted by: washerdreyer | Link to this comment | 02-15-08 1:32 PM
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God, if we have a President Barry, can a President Larry be far behind? And then a Moe....


Posted by: Flippanter | Link to this comment | 02-15-08 1:33 PM
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115:What I am proposing is in principle not at all unprecedented or really that dangerous or destructive. Well, ok, maybe a little.

One example you might remember is the two trials over the Rodney King brutality. Were there two? IIRC. Federal Civil Rights Cases where state justice is inadequate. Lots of history there.

115a:Yes we are. And I look forward to the domestic confrontations the trials in Germany would provoke. We would pay a price. The surrender of some sovereignty and a certain loss of security would be part of that price. The partisan hell would be another.


Posted by: bob mcmanus | Link to this comment | 02-15-08 1:36 PM
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107:Second, you might explain the relevance of your sense of community to anything I could potentially be persuaded to care about.

115:Could you paint a picture of this spirit? Is it a unicorn? A unicorn with wings? A narwhale?

I guess I could link to some pictures from Iraq, dead women & children maybe, but I don't know if you would be persuaded to care by them.


Posted by: | Link to this comment | 02-15-08 1:42 PM
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110: Ah, so you noticed 55, 56 and 59, then? Those sound like prison-worth offenses to me, don't you agree?


Posted by: Cyrus | Link to this comment | 02-15-08 1:42 PM
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124 was me.


Posted by: bob mcmanus | Link to this comment | 02-15-08 1:42 PM
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119: That both state and federal courts can exercise concurrent jurisdiction over conduct is really not the same thing at all as rendering someone to Germany for trial because American courts just don't cut it.


Posted by: Di Kotimy | Link to this comment | 02-15-08 1:44 PM
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127 to 123, not 119.


Posted by: Di Kotimy | Link to this comment | 02-15-08 1:45 PM
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124, 126: That's a no, then?


Posted by: Flippanter | Link to this comment | 02-15-08 1:45 PM
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We really are lost in the weeds. First the court-packing, and now extraordinary rendition to Germany.

Eric's point was that if no one from the Bush administration faces any consequences for what they've done, we'll be another big step on the way to a lawless, unaccountable executive, as big as or bigger than the steps taken by Nixon and Reagan. And for this reason, there should be prosecutions.

I completely agree. We can also talk about who can be prosecuted and what specifically they should be prosecuted for, but I think that we should agree with his main point.

It was an assumption of Eric's that there were felonies committed, including but not limited to perjury. The question of "what really counts as a constitutional violation?", etc., is peripheral, since it was only a motivation for pursuing the other prosecutions. That is to say, "Violating the Constitution" wouldn't be the charge in court, but the constitutional questions would be a reason why we think that prosecution is necessary.


Posted by: John Emerson | Link to this comment | 02-15-08 1:54 PM
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I'm starting to agree with bob here.

115:
3. See above. I have nothing against trials, but the fantasy of whisking one's enemies away to be dealt with is juvenile at best, Bushesque at worst.

Actually, it's simply not. Whisking one's enemies enemies away to be dealt with by a trial is exactly what Bush is accused of not doing. If you feel that trial by a third party nation without jurisdiction is the problem(1), or if you think Bush wouldn't get a fair trial in Sweden or the Hague(2), that might be another matter. But if Bush had "whisked" people away for speedy, public trials adhering to basic rules of evidence, with punishment only following conviction, we wouldn't be having this conversation. Sorry.

(1) Well, we are still nominally signatories to the Geneva Convention, aren't we? Is there any legal recourse if they are broken?

(2) This might be correct, strictly speaking, but I think he's more likely to get a fair trial there than anywhere else in the world. Deeply unpopular figures do get trials now and then, even if an unprejudiced jury would be impossible to find.


Posted by: Cyrus | Link to this comment | 02-15-08 1:56 PM
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John, a lot of us agree with Eric (personally, I make it a policy to agree with things he writes before he even writes them) and are discussing other issues we're interested in and which are being disputed by people here.

Also, I can't believe you're advising people not to let themselves get trolled.


Posted by: washerdreyer | Link to this comment | 02-15-08 1:57 PM
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See? 130 was really good.


Posted by: Di Kotimy | Link to this comment | 02-15-08 1:58 PM
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131: "Convention" s/b "Conventions."


Posted by: Cyrus | Link to this comment | 02-15-08 1:58 PM
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131: Is "Sorry" supposed to cap your devastating counter-argument? Wow. Big Lee Marvin fan?


Posted by: Flippanter | Link to this comment | 02-15-08 2:01 PM
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I have many arrows to my bow, Di. Amongst my weapons is insult.

W/D, I was just explaining that there's no brotherhood of trolls. Thou shalt have no other trolls before me, except McManus.


Posted by: John Emerson | Link to this comment | 02-15-08 2:02 PM
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I'm just saying your other weapons are more effective is all. And less annoying.


Posted by: Di Kotimy | Link to this comment | 02-15-08 2:04 PM
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135: Lee Martin? I don't get the reference. Wikipedia shows a Pulitzer Prize-winner with that name, a novelist who uses that pseudonym and a few professional athletes. Which one do you mean?


Posted by: Cyrus | Link to this comment | 02-15-08 2:04 PM
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Hey, the guy was a whiner.


Posted by: John Emerson | Link to this comment | 02-15-08 2:04 PM
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Of course, I would have learned more if I had spelled the name correctly, maybe...

I KAN REED GUD?


Posted by: Cyrus | Link to this comment | 02-15-08 2:05 PM
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Wow, this derailed pretty quickly. Eric asks,
If we don't provoke a crisis, what will we have to lose?

A chance for the Obama presidency and a Democratic congress to roll back some of the more egregious arguments advanced by the executive, and for Obama's pet cause, transparency in government, to make them more difficult to advance in the future. I'm not convinced one way or the other, but the fact that the Bushies really really deserve to be punished isn't dispositive here. I realize that "pretend it didn't happen" seems loony, but aren't more people afraid of what might happen if the Democrats convince the public that there's a constitutional crisis and the public decides they're ok with that (which is to say, if the public implicitly endorses the unitary executive)?


Posted by: ogged | Link to this comment | 02-15-08 2:06 PM
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And you were a jerk.

But deep down I love you both the same.


Posted by: Di Kotimy | Link to this comment | 02-15-08 2:06 PM
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"Rule of Law" implies a community,

May the Lord forgive me for quoting mcmanus approvingly, but that's the nut of the disagreement. The Republicans won about half the country in the last two national elections. Emerson claims that Republicans, broadly, are corrupt and evil and will stop at nothing. Unless he has some mechanism for reading them out of whatever is the relevant community, I'm not sure how he can say that that "we know" how the fight over "rule of law" will end.

So pick, Emerson: Republicans are not wholly corrupt, or we may well lose and shouldn't care. (I think you may have already picked the latter, but I can't believe you meant it.)


Posted by: SomeCallMeTim | Link to this comment | 02-15-08 2:07 PM
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aren't more people afraid of what might happen if the Democrats convince the public that there's a constitutional crisis and the public decides they're ok with that

Jonathan Schell put this out there as a fear people held during the Nixon administration. Apparently Congress went ahead anyway. Which is not a dispositive argument, either. But it might prove engirdening to your loins.

I'm not sure why/how an Obama presidency would roll back these excesses. That an Obama presidency might not practice them, sure. That an Obama presidency might issue some kind of executive order abjuring them, okay. But neither would bind any future administration.

Also, "the Obama presidency"? Where, in relation to your cart, is your horse, dude?


Posted by: Eric | Link to this comment | 02-15-08 2:17 PM
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as a fear people held during the Nixon administration.

My parents tell the story of my father calling home during Watergate and telling my mother, not an unusually gullible woman: "Nixon's ordered the 82d Airborne to surround Washington!" She bought it, hook, line, and sinker.


Posted by: LizardBreath | Link to this comment | 02-15-08 2:21 PM
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I don't know how the fight over the rule of law will end, whether the Republicans are completely corrupt or not. I don't see how not fighting will be less than defeat. There's an escalating progression from Nixon to Reagan to Bush II, and at the moment it looks as though the Bush people will get off scot free and spend 4 or 8 years getting ready for more in supreme confidence that they'll get away with it then too. To me that counts as losing.

I don't expect much from Obama or the Democrats doing anything much unless someone builds a fire under them. Deciding not to prosecute would be the opposite of building a fire.

Aren't more people afraid of what might happen if the Democrats convince the public that there's a constitutional crisis and the public decides they're ok with that (which is to say, if the public implicitly endorses the unitary executive)?

I'd rather know sooner rather than later.

We're sliding into blaming the stupid American people now. The disinformation media are the actual villains. The FISA argument, for example, is systematically misrepresented by almost everyone except Olbermann.

And yeah, it strikes me as very possible that we're beaten, in which case we're beaten. In which case these things will happen again and again.

For Democrats all roads lead to "keep your powder dry". (x) x --> p.


Posted by: John Emerson | Link to this comment | 02-15-08 2:23 PM
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I realize that "pretend it didn't happen" seems loony, but aren't more people afraid of what might happen if the Democrats convince the public that there's a constitutional crisis and the public decides they're ok with that (which is to say, if the public implicitly endorses the unitary executive)?

My response in 49 to SCMTim's 31 (re: input of the married folk on the value of pretending) was (albeit in the form of covert banned analogy) a sincere response to this. Yes, when you quit pretending that everything is okay, it is scary as hell. It will be unavoidably ugly for awhile. You have to give up the comfort of the status quo -- which may be unpleasant, but at least is a known unpleasantness. There's a risk you could wind up losing everything that's most important to you. You weigh that, you have to.

Personally, though,I am inclined toward facing the reality and speaking up for what is true and fighting to the bitter end to make sure you don't lose the things that matter most. Because the alternative is continuing to turn a blind eye, which does nothing but give quiet assent to more of the same and subtle encouragement to worse.

And of course I say that from a position of doing precisely jack shit to do anything about our collective game of make-believe. So, you know, hypocrite. But in principle...


Posted by: Di Kotimy | Link to this comment | 02-15-08 2:23 PM
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Where, in relation to your cart, is your horse, dude?

Placed there in hope?


Posted by: Armsmasher | Link to this comment | 02-15-08 2:24 PM
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Emerson claims that Republicans, broadly, are corrupt and evil and will stop at nothing. Unless he has some mechanism for reading them out of whatever is the relevant community, I'm not sure how he can say that that "we know" how the fight over "rule of law" will end.

That Republican officeholders are corrupt and evil and will stop at nothing doesn't necessarily mean that the same is true of all of the yahoos who elected them. Flip the ones who are relatively normally human beings but susceptible to being whipped into a frenzy over the Terrist Menace and you've got a solid majority. I hope.


Posted by: Not Prince Hamlet | Link to this comment | 02-15-08 2:25 PM
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I don't see how not fighting will be less than defeat.

As Lt. Daniels's then-wife instructs us in the first season of The Wire, "If you don't play, you can't lose."


Posted by: SomeCallMeTim | Link to this comment | 02-15-08 2:26 PM
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It also doesn't mean that the Republicans are sure to win if we fight. Winning would be a lot better than losing, and not fighting would be scarcely at all better than losing. It would basically be a passive ratification of everything that happened.


Posted by: John Emerson | Link to this comment | 02-15-08 2:26 PM
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And yeah, it strikes me as very possible that we're beaten, in which case we're beaten. In which case these things will happen again and again.

That's my first reaction, too. We're fucked anyway, so let's take a shot. But the argument that there's some hope that The Obama Regime will make this all go away and we don't need to upset things, is at least moderately compelling. The problem with that is what Rauchway says, namely that even if Obama doesn't do these things and condemns them, that won't stop anyone in the future. Not sure what to do about that, or how to weigh it.


Posted by: ogged | Link to this comment | 02-15-08 2:27 PM
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150: Joke?


Posted by: John Emerson | Link to this comment | 02-15-08 2:27 PM
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I really don't expect Obama, God bless his heart, ever to be more resolute than public opinion. We have to set an example for him.


Posted by: John Emerson | Link to this comment | 02-15-08 2:28 PM
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These discussions would be materially more productive if we could steer a course between the Scylla of the inchoate rage of the politically powerless and the Charybdis of cliches about the value of fighting on in the face of insurmountable opposition.


Posted by: Flippanter | Link to this comment | 02-15-08 2:30 PM
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if the Democrats convince the public that there's a constitutional crisis and the public decides they're ok with that

Then nothing's changed. Or, put otherwise, if that is the case then the Democrats have not convinced the public that there's a constitutional crisis.


Posted by: Armsmasher | Link to this comment | 02-15-08 2:30 PM
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155: That construction always puzzles me. Odysseus never attempted to do the impossible. He lost men to Scylla and ran ashore, then shipwrecked again when he tried to come back Charybdis's way. (IIRC)


Posted by: Armsmasher | Link to this comment | 02-15-08 2:32 PM
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the Charybdis of cliches about the value of fighting on in the face of insurmountable opposition

1. But I love this cliche!
2. Actually, I don't think those advocating for this angle are really aiming for the epic heroism thing so much as saying that choosing inaction because we fear the worst is really just conceding defeat.


Posted by: Di Kotimy | Link to this comment | 02-15-08 2:37 PM
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155: I don't see it that way at all, obviously. There's a pretty specific proposition on the table, and we're deciding it yes or no. It's a cliche to say that Democrats have done nothing but keep their powder dry for the last seven years, but it's a cliche because it's true. It's tiresome to keep harping over the same problem forever, but the alternative is just to accept defeat.

American WWII generals said of Chiang Kai-shek that strategic withdrawal was the only strategy he had. (One of the reasons we "lost China" is that Chiang was pretty worthless in the fight against the Japanese, so we ended up working with the Communists. Chiang's program was completely different than ours.)


Posted by: John Emerson | Link to this comment | 02-15-08 2:39 PM
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155: I'm not sure that running full steam into the Rock of High Broderism is a big improvement.


Posted by: Not Prince Hamlet | Link to this comment | 02-15-08 2:41 PM
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130

"I completely agree. We can also talk about who can be prosecuted and what specifically they should be prosecuted for, but I think that we should agree with his main point."

Well Cunningham like corruption would seem to be a good place to start. Bush for waging agressive war when the war in question was initially supported by among others Clinton, Edwards, Yglesias and Ogged not so much.


Posted by: James B. Shearer | Link to this comment | 02-15-08 2:41 PM
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153: As I recall, that's what he asks. And she responds--as I do, here--that if the game is rigged, the appropriate behavior changes. You have to first get yourself to a position where you can start to unrig the game. You elect the least complicit Dem: Obama. He hires the least complicit people from the DC policy/legal community. The private validating institutions, like the NYT and WaPo, respond to power and change their roster of reporters and columnists. Maybe Obama takes a series of actions that, while not directly responsive to concerns, allows him, over and over again, to reaffirm his--here, our--understanding of "the rule of law."

On your reading of history, it took from Nixon to Bush II to get here. I'm not sure why you think it will take so much less time to untangle.


Posted by: SomeCallMeTim | Link to this comment | 02-15-08 2:42 PM
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I'll just chime in to register my opposition to the forces of blithely Reasonable Pussydom. Closing your eyes and pretending that will make the monster go away only works when the monster isn't real.

If our Imaginary Non-Cowardly Democrats actually managed to make the public aware of the constitutional crisis, and the public turns on them, well, then the people have spoken. I'd rather know that than keep tiptoeing through the political landscape.

I guess I have more faith in the American people than that.


Posted by: mrh | Link to this comment | 02-15-08 2:45 PM
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159: If the specific proposition is that the many officials of the Bush Administration complicit in its many offenses should be prosecuted, then who would disagree? I think the disagreements arise from differences of opinion over whether such prosecutions are likely to occur, and why, and whether the likelihood that they will not occur is due to the fact that we inhabit a fallen world, the sad fact that democracy is not a machine for delivering whatever one happens to want, a media conspiracy to atomize the nascent coalition-building efforts of the left or the fact that few of our fellow Americans agree with us. And, of course, the need of some interlocutors to go all La Pasionaria every goddamned time this comes up.


Posted by: Flippanter | Link to this comment | 02-15-08 2:54 PM
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the argument that there's some hope that The Obama Regime will make this all go away and we don't need to upset things, is at least moderately compelling.

Obama consciously shied from controversy. And he was particularly cautious on Iraq. "He took a very skeptical wait-and-see stance," says one Senate foreign policy aide. But so did many other Senate Democrats, including Joe Biden, Carl Levin, and Clinton herself. Even antiwar Democrats came to believe that, however ill-advised the war may have been, America had a responsibility to secure and stabilize the country. (Hence Obama's July 2004 claim to the Tribune that "[t]here's not that much difference between my position and George Bush's position at this stage." This was clearly a reference to the occupation and not the invasion--a distinction Clinton supporters have repeatedly sought to blur.) Obama even hinted in July of that year that he could support higher troop levels, albeit with the goal of ending the occupation faster. When he finally gave a major Iraq speech in November 2005, he only called for a gradual troop drawdown--"Notice that I say 'reduce,' and not 'fully withdraw'"--even though liberals like Democratic Senator Russ Feingold had already proposed a complete withdrawal by the end of the following year.

http://www.tnr.com/politics/story.html?id=aaad0724-dd13-4ffa-810b-d5d3220ff055


Posted by: PerfectlyGoddamnDelightful | Link to this comment | 02-15-08 2:57 PM
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I'm in agreement with the caucus against an infinitely long future of dry powder, most recently expressed in 163.


Posted by: Cryptic Ned | Link to this comment | 02-15-08 2:57 PM
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We're just poking the corpse of democracy to see if it still twitches, Flippanter. We're not really trying to predict whether the prosecutions will occur or not, or to decide why not. We are trying to encourage the people who have some input on the question to push for prosecutions. Most of us think that it's an major question worth getting upset about. Sorry if it bores or annoys you.


Posted by: John Emerson | Link to this comment | 02-15-08 3:04 PM
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In the US, impeachment doesn't require actual crimes - the setup is deliberately broad enough to cover bad stuff that may not be technically illegal, because the Original Dads were up on ways authorities can go bad within the letter of the law. (They weren't angels and they missed some things, but they did a damned good job overall.) A Congress that took its role seriously could impeach Bush and Cheney over anti-preparedness for Hurricane Katrina, knowingly sending troops into combat without adequate supplies, rest, and health, and all sorts of things like that. Refusal to cooperate with Congressional subpoenas is an impeachment classic, too, and no less ready for use again for any of that. Hatch Act violations (the use of official resources for partisan campaigning) could fill a docket all by themselves, too.

This is quite apart from the war crime charges, which I'd love to see prosecuted outside the US if possible, but prosecuted anywhere.

The real problem I have with the "let's pretend" stance is the "what you mean 'we', paleface?" issue. It genuinely matters to the people of Afghanistan and Iraq, for instance, that we are collectively playing at being a civilized nation rather than being one. It matters to anyone who wants to do business with the US government, or take part in conferences on topics the government might disapprove of (and harassment of visiting scholars could be another item for impeachment), or travel to or through the US while looking non-whitebread, and on and on. Fooling ourselves doesn't do any good for the rest of the world.


Posted by: Bruce Baugh | Link to this comment | 02-15-08 3:07 PM
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Now that's how you troll, John. The more-in-sorrow-than-in-anger tone, the apology, the Atticus-Finch-in-a-truss uprightness: vintage Lieberman, circa 2003. Nice.


Posted by: Flippanter | Link to this comment | 02-15-08 3:08 PM
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Lt. Daniels's then-wife instructs us in the first season of The Wire, "If you don't play, you can't lose."

I don't think you're meant to trust Marla's judgment, Tim. I believe she is presented even more unsympathetically than many of the other unsympathetic characters.


Posted by: Eric | Link to this comment | 02-15-08 3:14 PM
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The apology wasn't sincere, thank God. The Lieberman dig meant what? For me the problem with Lieberman isn't his tone of voice. I was trying to be politer to you than I was to the boutique moron above, in view of my rebuke by Di and your previous good behavior.

I repeatedly say the same thing because the same thing keeps happening again and again. Perhaps you should avoid the designated political threads.


Posted by: John Emerson | Link to this comment | 02-15-08 3:16 PM
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"...the fact that few of our fellow Americans agree with us."

Well, you see flip, I do belong to a world community that rose up in spontaneous demonstrations against a war that most had little direct interest in; is constantly astonished at the wreckage of American politics and policy, foreign & domestic; and in my guess would be willing and able to prosecute those our domestic politics protect.

And as I approach my 60s with a lifetime of experience informing my pessimism of substantive change in America, excuse the fuck out of me for getting tired of the same ole same ole shit.


Posted by: bob mcmanus | Link to this comment | 02-15-08 3:18 PM
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171: I appreciate that, John. But Flip is being a real poopyhead.


Posted by: Di Kotimy | Link to this comment | 02-15-08 3:19 PM
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By the way, I'm sorry to be sounding so manifesto-ish this week. It's not really intentional. Just distracted by what would like to be my next chronic bout of edema, which I'm trying to suppress. I seem to get stiff at such times, and will put some more effort into sounding like the warm wonderful person I of course am.


Posted by: Bruce Baugh | Link to this comment | 02-15-08 3:20 PM
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I don't think you're meant to trust Marla's judgment, Tim. I believe she is presented even more unsympathetically than many of the other unsympathetic characters.

Unsympathetic isn't wrong. (And I'm not sure she's unsympathetic up to that point.) We mistrust not her judgment, but her goodness, I think. Her claim is that in a broken world, you follow broken rules. People who disagree--the commander of Western Division--will see their projects fail and lose out personally.


Posted by: SomeCallMeTim | Link to this comment | 02-15-08 3:25 PM
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I agree a lot with Bob's 172 and its broad sense of who "we" are when it comes to responding to war crimes.


Posted by: Bruce Baugh | Link to this comment | 02-15-08 3:27 PM
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161:I really have little hope of ending or lessening corruption. Truman's war profiteering investigations did not deter Halliburton.

I do have a reasonable hope that fucking war can be ended or limited. There is, I am sure, a great amount of corruption in Brazil, but Brazil does not make a habit of attacking its smaller neighbours.

This is some kind of evidence.


Posted by: bob mcmanus | Link to this comment | 02-15-08 3:28 PM
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"in my guess would be willing and able to prosecute those our domestic politics protect."

The attempts at prosecution in European courts thus far suggests you're wrong about this one.


Posted by: Katherine | Link to this comment | 02-15-08 3:43 PM
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Either Col. or Maj. Daniels (it's in the episode where he changes from one to the other) quotes that Marla line again in Season 4, but even though I saw the episode two or three days ago (I'm almost caught up and ready to start the current season) I can't remember the context. I don't think he's endorsing it.

The proper response to 135 involves quoting Reservoir Dogs and I'm ashamed no did so while I was way from my computer.


Posted by: washerdreyer | Link to this comment | 02-15-08 3:54 PM
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Unsympathetic isn't wrong.

About this, Tim, I believe you are wrong. Listen to David Simon hisownself:

Camus rightly argues that to commit to a just cause against overwhelming odds is absurd. He further argues that not to commit is equally absurd. Only one choice, however, offers the slightest chance for dignity. And dignity matters.

Posted by: Eric | Link to this comment | 02-15-08 3:58 PM
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178:Well, I am presuming the Bush administration is obstructing and applying disincentives whereas my Pony Obama would enthusiastically cooperate. But with a little research I discovered the ICC has severely limited funds, and I can understand the reluctance of a Germny to budget the millions it would take to try a Cheney. Why shovel our shit?

Venue shopping! Paraguay! Liberia! We'll take bids, promising lawyer full hotels and media money!

Dubai! Shoot, show these pictures and Bush and Cheney might extradite themselves just for the skygolf.


Posted by: bob mcmanus | Link to this comment | 02-15-08 4:04 PM
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181: I think Katherine may have been alluding to the failure of Baltasar Garzón to bring, e.g., Pinochet to the dock in Spain.

173: No one loves a cynic.


Posted by: Flippanter | Link to this comment | 02-15-08 4:11 PM
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This argument is confusing me. The argument-imputed-to-Democrats-by-Kotsko says that the Democrats should not provoke a crisis while Bush is not in power. It says nothing about what the Democrats should do when they themselves are in power. Is anyone arguing that when they are in power, the Democrats should not prosecute Bush administration officials when there is evidence of illegality?


Posted by: Walt Someguy | Link to this comment | 02-15-08 4:18 PM
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the Democrats should not prosecute Bush administration officials when there is evidence of illegality?

Oh, there may be arguments. Like with the Republicans supoenas of Secret Service agents, do we really want this SCOTUS taking signing statements and waterboarding under review?

And, of course, it would distract and divide in our season of Obama Unity Bliss.


Posted by: bob mcmanus | Link to this comment | 02-15-08 4:26 PM
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182:and I'm not sure what she meant, but was afraid that googling "Italy CIA" or "Germany kidnapping" would take long and result in discouragement.


Posted by: bob mcmanus | Link to this comment | 02-15-08 4:32 PM
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I meant anyone here. I think there's legitimate reason to worry about Obama on that front.


Posted by: Walt Someguy | Link to this comment | 02-15-08 5:35 PM
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I meant "while Bush is in power" in 183.


Posted by: Walt Someguy | Link to this comment | 02-15-08 5:38 PM
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Hey I'm here. And while not claiming to be an accredited professional, I do have much experience at asserting multiply conflicting positions in a comment post. Sometimes within a single run-on sentence!

My reputation is entirely deserved. Very few commenters could even understand the elegance in 2002 of opposing the war in Iraq while simultaneously calling for 5 million troops for the invasion. Their brains would melt under the stress.
Daisy daisy give me your answer do.

So I might not know an argument if it bit me in the ass, but I can troll you from any direction ya choose. Make my day.


Posted by: bob mcmanus | Link to this comment | 02-15-08 6:28 PM
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Bob, you're a crazy man. I like that. And anyone with two big dogs can't be all bad.


Posted by: LizardBreath | Link to this comment | 02-15-08 6:34 PM
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W/r/t the Kotsko-argument-imputed-to-the-Democrats, I believe that the Democrats have a point -- it would make a difference for us to be "officially" rather than just de facto in a constitutional crisis. The very act of declaring that we are in a constitutional crisis changes the situation, and the results are unpredictable.

Yes, there is the risk that the public will tacitly endorse the state of exception, and I don't know how you recover from that. I don't think that's a very likely result, since Bush is so hated right now -- but if that outcome occurred, it would be a really serious situation with no clear way out. There's also the question of how Bush and Cheney would react. So far, there is no real indication that they intend to attempt to maintain power beyond the end of the present term. What if they were backed into a corner, though? What if they were impeached and they just refused to leave because of some bullshit argument that the state of exception means they can't be removed? What would the military do? What would the CIA do? What would the mercenaries do?

There is a strong argument to be made in favor of maintaining appearances and waiting out Bush's term. I believe that Bush and Cheney are war criminals who absolutely deserve to be put to death, too -- I'm not taking up a SCMT position of agnosticism on how serious their crimes are. But the fact is, Bush does actually hold power. There are not a lot of good options, even if the Democrats were to "grow a pair." That's what it means for there to be a crisis.


Posted by: Adam Kotsko | Link to this comment | 02-15-08 6:54 PM
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Ok, Bob, the visiting TNR guy, and I want a constitutional crisis, wheras Ogged, Tim and our visiting Christian Leninist are less sure. Hm. A vote?


Posted by: John Emerson | Link to this comment | 02-15-08 7:34 PM
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By the way. (Don't know if that's been linked.)


Posted by: eb | Link to this comment | 02-15-08 7:40 PM
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And note the quote from our own CharleyCarp.


Posted by: LizardBreath | Link to this comment | 02-15-08 7:41 PM
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I'm not sure I understand the 'can't get worse' school of thought. Are you people not listening to Brother McManus? Of course things can get worse. A lot worse. (To be sure, BMcM says they will no matter what, given peak oil, the credit crunch, and some yet scarier things I've forgotten about).

This is especially true when you talk about the rule of law, which is a constantly developing thing. OK, yes, sometimes you gotta lop the head off a Charles I. But there's nothing wrong, when playing the rule of law game, with playing to win. Because a loss lingers for a long time, establishing even worse precedent than strategic inaction. I wonder what would have happened if Fred Korematsu's case had come up a year later.

I'm not sure I agree with Pelosi that in the run-up to the 2006 elections, it was important to demonstrate to independents and moderates that Dems would not be 'shrill' but would instead focus on positive changes. It's not a crazy conclusion to have drawn in any event.* On this score, reservations about Obama are absolutely well founded: I think an all-consuming crusade to get Bush & Cheney would not be consistent with the image he's putting forward -- an image that is drawing new voters to the polls in droves. That's not to say that we won't see truly corrupt people (maybe the secretary of HUD) get investigated -- well, he's already being investigated. But no one should expect to see Bush & Cheney pursued wrt Iraq, Abu Ghraib, Gitmo, or even FISA.

(And no, Hillary isn't even the slightest bit more likely to do this than Obama, so his unwillingness to do so isn't a basis to favor her).

Just because Bush doesn't get impeached or prosecuted, though, doesn't mean others will be incented. What he is going to 'suffer' is a total repudiuation of Bushism at the polls, and, one hopes, a bitter verdict of history. Over to you, Historians.

* It may also have been worthwhile for Pelosi to demonstrate to a slice of the electorate that despite her lack of a Y chromosome, she can fucking count. There is no possibility of impeachment, and never has been. There is especially no possibility of impeachment of Cheney, because while he makes recommendations, the decisions always get made by someone else. OK, I'd vote to impeach him, but there are definitely 40 votes to acquit. Anyway, the real failure here is on the Republican side -- we're not losing some important points in the rule of law because of Dem cowardice, but because of Rep tribalism.


Posted by: Nápi | Link to this comment | 02-16-08 5:51 AM
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What he is going to 'suffer' is a total repudiuation of Bushism at the polls, and, one hopes, a bitter verdict of history.

The 'bitter verdict of history' seems completely inadequate, to say the least, given that we are talking about major war crimes.

Doubly inappropriate since these are people who've never really shown much interest in, or knowledge of, history and since they are all, pretty much, millionaires many times over still beloved by enough sycophants to surround themselves with craven yes-men for the rest of their natural lives.

Now, I realize that with the US attitude to the ICC, and it's general attitude to international institutions, that no war-crimes trial is remotely likely for any of the US administration. But I am still holding out some slim hope that Blair gets his at some future date.


Posted by: nattarGcM ttaM | Link to this comment | 02-16-08 6:38 AM
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But I am still holding out some slim hope that Blair gets his at some future date.

A complaint against Blair for war crimes has been made at Scotland Yard. I doubt it will amount to anything however, considering even the murderers of De Menezes have never been charged.

Best we can hope for is that somebody some day will be riled up enough to put a bullet through the mother.

Meanwhile, nothing will ever happen to Bush, as the crimes he and his committed are largely unrecognised as such by the US political establishment. Obama or Clinton will defeat McCain with no trouble in November and will immediately be bogged down in trying to solve the problems Bush left, which will be much much worse than we think, while being attacked from day one by the Republicans in the press and Congress. They will be convinced trying to get Bush for his crimes will make their own situation even worse, so it won't happen. And judging by the thread, they're probably not wrong.

So the best thing is still to hope for Civil War 2.



Posted by: Martin Wisse | Link to this comment | 02-16-08 10:19 AM
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Late, but I will just chime in to say that I certainly do favor at least pursuing Articles of Impeachment. No hope of passage, but at a minimum I think there needs to be a record that some in Congress understood the magnitude of wrongdoing by this Administration.

John Rogers has the best post on this that I have seen, L33T Justice at Kung Fu Monkey, including how Cheney, Bush et al are counting on just this cowardly response:

We are faced with utterly shameless men. Cheney and the rest are looking our representatives right in the eye and saying "You don't have the balls to take down a government. You don't have the sheer testicular fortitude to call us lying sonuvabitches when we lie, to stop us from kicking the rule of law and the Constitution in the ass. You just don't. What's beyond that abyss -- what that would do to our government and our identity as a nation -- terrifies you too much. So get the fuck out of our way."

and appropriately bringing up the Nixon administration:

I cannot help but think that as Nixon walked to the chopper, somewhere in the darkened hallways of the White House Dick Cheney shook his head, spit, and whispered: "Pussy."

Posted by: JP Stormcrow | Link to this comment | 02-16-08 1:03 PM
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So the best thing is still to hope for Civil War 2.

Sure, let's fight it in Europe. Through proxies.


Posted by: Nápi | Link to this comment | 02-16-08 2:14 PM
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198: Yep! I bet we can get some great art out of it.


Posted by: JP Stormcrow | Link to this comment | 02-16-08 2:19 PM
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I think we may have discussed this before, but it's not clear to me that an impeachment which won't lead to conviction is automatically a bad idea. Though I also think the Libby pardon was impeachable as to Bush since the impeachment power has to be the check against the pardon power. I don't quite know how to deal with the Cheney only recommends high crimes argument.


Posted by: washerdreyer | Link to this comment | 02-16-08 2:20 PM
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200: I do think the Libby commutation (pardon would have left Bush et al more open to possibly needing to testify) is the most straighforward (although not the most consequential) ground, what with founding father support and all. I agree that Cheney is more problematic. Someone made the sensible suggestion that if they went after both Pelosi should recuse herself.

All just an exercise in fantasy, of course.


Posted by: JP Stormcrow | Link to this comment | 02-16-08 3:48 PM
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