Soooo … Eric Posner’s Angling to Ghostwrite David Brooks’s Columns. Or At Least to Fully Shed That John-Yoo-and-I Stigma. Fine, But Don’t Stigmatize ME In the Process. [FORMAT-CORRECTED AGAIN]
When Dzhokhar Tsarnaev was arrested Friday night, the celebration was instantly overtaken by an ideologically charged debate. Liberals argued that the government must respect Tsarnaev’s constitutional rights, by which they meant that he should be treated the same as any ordinary criminal suspect—informed of his Miranda rights, supplied with a lawyer, presented to court as soon as possible. The subtext was that the treatment of Tsarnaev would refute yet again the hated Bush administration’s claim that it needed expansive war powers to fight terrorists. Conservatives by contrast, notably Republican Sens. John McCain and Lindsey Graham, argued that the government should classify Tsarnaev as an enemy combatant, and thus deprive him of the rights of ordinary criminal suspects. For the left, the Tsarnaevs are examples of “vulnerable Muslims” driven to extremes by President Obama’s immoral drone war; for the right, they are foot soldiers in a civilizational war. …
Neither the knee-jerk liberal nor the knee-jerk conservative response appreciates all of these underlying dilemmas. For liberals, the constitution is a fetish to be stroked at times of peril; it will protect us, whatever the stakes. They forget that criminal procedural rights were cobbled together over decades by fallible judges, who were responding to the needs of the time. What might have been appropriate during the civil rights era, when police used criminal law to suppress protesters and torment African-Americans, may not be appropriate for an age of terror. …
The isolation of terrorist suspects is hardly a new idea; it was used effectively in the 1970s by Germany, Italy, and other European democracies to defeat terrorist groups like the Red Army Faction and the Red Brigade. Here and now in the U.S., there are several advantages to this approach. It treats in the same manner anyone who engages in terrorism or mass killing and does not single out Muslims, who are burdened by the legacy of the declaration of war against al-Qaida. It gives the police broad powers to deal with cases of extraordinary violence without granting them similar powers for ordinary criminal investigations. It avoids any reference to war or martial law, skirting the massive legal and political complexities associated with war powers. And because Congress would make the rules, and judges would oversee the system, the courts would likely hold it constitutional.
— The New Law We Need in Order to Deal With Dzhokhar Tsarnaev: Congress should authorize the isolation and detention of suspected terrorists., Eric Posner*, Slate, yesterday
After reading that article this afternoon, I posted the following comment to it:
For the left, the Tsarnaevs are examples of “vulnerable Muslims” driven to extremes by President Obama’s immoral drone war; for the right, they are foot soldiers in a civilizational war? Really? For the entire left, Prof. Posner?
I’m a regular writer on a blog called Angry Bear, a left-of-center economics/politics/legal-issues blog, and yesterday, at the request of the guy who runs the blog, I posted a lengthy piece on these issues, at [this link; link corrected 4/25]. I began writing for that blog three years ago at the request of the guy who runs it, and a few of my pieces have been linked to or tweeted by some heavy-hitters. Including Paul Krugman (once), Brad DeLong, several times, and Naked Capitalism, also several times. (And occasionally by non-ideological blogs and tweeters as well, although that doesn’t matter here.) Suffice it to say that I’m of the left. Have been all my life. Almost literally; by the age of about six, I knew about McCarthyism, courtesy of my parents!
So I’m a good test case, and I invite Prof. Posner to read my blog post (if he can bear the thought and expend the time to read something written by a no-name) and point out where exactly I said or implied that I view the Tsarnaev brothers as examples of vulnerable Muslims driven to extremes by President Obama’s immoral drone war. And, since he won’t, I invite all you readers here to do that. I wish you luck.
Posner spent the early and mid 2000s angling (I think) to join his father as a judge on the Seventh Circuit Court of Appeals, an effort that included co-authoring with that well-known civil libertarian John Yoo (google him, folks, if you don’t know who he is and therefore don’t get the reference and characterization). Posner has spent the time since his dalliance with Yoo trying to salvage his own reputation, fairly successfully, and this article is, I think, another piece in his ongoing attempt to rid himself of the Yoo-association taint; you never know when a Republican might win the White House next, and anyway, well, y’know.
But the next presidential inauguration is nearly four years away, and so to bide his time he’s apparently now auditioning as David Brooks’ ghostwriter. Brooks really, really does need one, and Posner has that sweeping-generalizations-and-categorizations thing down pat, which is a good start. All he needs now is to practice up on the faint-correlation-equals-definitive-causation thing. Or at least the a-series-of-statements-of-fact-invites-a-non-sequitur-conclusion technique, a David Brooks special. And no one will be the wiser that the columns are ghostwritten.
As a liberal, I can also attest, by the way, that it is not a characteristic of ours to forget that criminal procedural rights were cobbled together over decades by judges. Nor to forget, or not to, um, notice, that judges are fallible. We notice that; trust me. Some of us even think that some judges are deliberately fallible. In fact, some of us are pretty sure of this.
As for what’s appropriate for an age of terror, one thing that I’m pretty sure is not is that any statute passes constitutional muster because Congress would make the rules, and judges would oversee the system. Congress sort-of-normally makes the rules in detailed statutes, and judges sort-of-normally oversee the system that statutes establish, at least since Marbury v. Madison. So I don’t know why the courts would likely hold it constitutional because Congress would make the rules, and judges would oversee the system. At least until Professor Posner becomes a member of one of those courts.
And just to be clear, I do not consider the Tsarnaev brothers examples of vulnerable Muslims driven to extremes by President Obama’s immoral drone war. This even though that may well have been why the older brother was able to gain the younger brother’s assistance. And even though I, too, believe that the drone war is immoral. And that there is no legitimate reason for this country to be involved in Afghanistan militarily, and that there has been no reason for a decade or so. It already looks likely that the younger brother was vulnerable to his older brother’s manipulations, probably mainly concerning the drone wars, but that the older brother had an agenda apart from the drone wars.***
*Eric Posner is a longtime professor at the University of Chicago Law School and a son of Seventh Circuit Court of Appeals judge Richard Posner.
**I had to fully edit the format of this piece once and then still make another formatting correction, because I’m still having trouble getting used to our new platform. After the second edit, the title disappeared, so I had to edit this a third time. Aaargh.
Steve Roth, Dan Crawford, and reader RJS have helped a lot via emails–thanks, guys!–but I’m still semi-clueless about it all. Apologies, readers. I think I finally got this one right. 4/23 at 3:04 p.m.
***In light of my exchange with Woolley in the comments below, I just amended this paragraph in my Slate Comment and here. 4/23/13 at 4:19 p.m.
Wellll, as I learned the hard way from perplexed emails to me about this post, our format here in WordPress does not distinguish blockquotes clearly enough. JazzBumpa, for example, said he wondered who had poisoned me–until he finally realized that that stuff was a blockquote. [Poisoned me? More like kidnapped me, and then waited for Stockholm Syndrome to kick in before he allowed me to post anything.] The solution, for the moment anyway? Italics.
Bev…are you saying that these particular suspects were not influenced by the drone wars or that all potential terrorists can never be influenced by the drone wars? First of all, we do not know what drove these kids to do this so the possible list must include our foreign policy decisions along with many other possible motives. Secondly, it is not hard to see a young Yemenite or Pakistani that grew up fearing drones to be so enraged that they become terrorists. I do not see how this should be politicized as either a left or right analysis since it is very possible that they were not motivated by our drone war and just as possible that they were motivated by our drone war. I have always maintained that the first rule of stopping terrorism is to stop creating more reasons for terrorism to spread. I cannot believe that you can kill every single person on the planet who might or might not be a terrorist. A rational policy would be to take down the most extreme people in a way that does not increase the chances of more people becoming one as a result of your actions. Obviously this is an impossible task without the help of others and in this case, the others we need help from live in the targeted communities.
Well, I didn’t read the robert Wright article that Posner links to in support of his all-liberals-view-the Tsarnaevs-as-vulnerable-Muslims-driven-to-extremism-by-the-drone-war claim, and maybe I should have before I wrote. But my post responds to Posner’s statement, not to Wright’s post.
I don’t seen these brothers as vulnerable because they’re Muslims. I do absolutely understand that potential terrorists can be influenced by the drone wars. And based on something the younger brother reportedly said to a dorm friend of his last week a day or two after the bombings, this might well have played a role–a key role–in his decision to participate in this. My bet is that that was exactly how the older brother–whose motives were purely religious jihadist, I’d bet–was able to gain the assistance of his younger brother.
And I do think it’s outrageous that the mainstream news media has given the drone war and its consequences unethically short shrift. But the way to gain media attention and therefore public attention to this is to organize major protests and have the leaders of the protests interviewed in the mainstream media, aided by statistics, photos of the victims and their families, and such. I wish they had done that.
Why in heaven’s name we’re still in Afghanistan, using drones or other means to drop bombs, I wouldn’t know. But the older brother, clearly the leader, almost certainly was not motivated by this issue, whether or not he used it to enlist his younger brother. So I, and I’m sure, many other liberals don’t see him as a vulnerable Muslim driven to extremism by it. And I think the younger brother was not a vulnerable Muslim as such but instead the vulnerable younger brother of a nutcase, whose Muslim religion made him especially vulnerable to the nutcase brother, who used it to manipulate him.
Make that “… Wright’s article”, not “Wright’s post.”
Oops. And, “I don’t see”, not “I don’t see ….”
We need a way to be able to edit our comments, like we could back on Blogger. Oh, for the old days ….
i once read that the new york times has several writers by the name of david brook, and that they collaborate on op-eds as “david brooks”…so if posner were to join that team, they’d need a new nom de plume…
Hey I can comment again! I have continued to read but have been unable to comment because I apparently do not know how to set up a google account. My takeaway on terrorism is that some people feel aggrieved and sense that they have no other means to make their points. Then there are those folks who manipulate others to carry out terrorist activities. Not at all clear yet where our Boston brothers fall, but I figure that denying folks the rule of law–whether it is due process prior to executing an “enemy combatant” with a drone strike or holding someone for extended periods without access to courts or lawyers–is a great way to make people feel aggrieved and powerless to do anything about it short of resorting to violence. As someone who does not own a firearm and who thinks there could be more regulation of firearms without impairing the Second Amendment, I was disappointed to see the rather modest efforts to increase regulation fail to overcome the filibuster in the Senate. At the same time my sympathy for the NRA’s positions increased last Friday watching SWAT teams in armored Humvees going door to door in Watertown. Of course sitting with a couple of assault rifles and few thousand rounds of ammunition would give one a very false sense of not being powerless–the police helicopters would sense your heat signature and the predator drone would then send you into oblivion before you even attached your magazine, but I do understand the sentiment. My bottom line is that if the ability to resist government by force is non existent then we sure better try and do it by law. Unfortunately, folks like the younger Posner seem to feel that laws that empower people–or at least assure them of due process– are the problem, not part of the solution. It does not surprise me in the slightest that he would be in bed with John Yoo and decide that torture is justified when the government says it is justified. I am glad I am old and sometimes I regret having children.
I read that article, too, Rjs! Can’t remember who wrote it, although I think it might have been Dave Weigel on Slate.
Hmm. now that I think about it, maybe Posner has been moonlighting doing that for a some time now!
Oops again! It’s “I don’t see”, not “I don’t seen ….” Damn. We really, really do need a way to be able to edit our comments, like we could back on Blogger. As long as I’m commenting here, anyway.
I post under the name Beverly Mann, which actually is my name, but my title is Typo Queen of the Midwest. Seriously.
from my view, the words in this comment draft have a washed out greyish tone…not easy to read or proofread…
& there’s something else this comment system does wrong…it makes my first initial upper case….that must be Dan’s revenge…i’ve been using lower case initials since i was 16…
LOL…I didn’t do it. I am using google chrome and the drat comment looks the same as the post. I have foind explorer 9 to behave differently on some things.
you’re right Dan; i just switched this post to my Chrome browser and the comment form is much clearer…how odd..
“What might have been appropriate during the civil rights era, when police used criminal law to suppress protesters and torment African-Americans, may not be appropriate for an age of terror. …”
Ahem. Has this fellow talked to any protestors or African-Americans lately? Maybe some of the scores of people tased for no particular reason over the past decade or so, some of them dying from it?
To say that the rule of law isn’t needed anymore because now civil rights issues are all hunky-dory is, Mr. Posner, to reveal yourself a fool twice over. Once, because even with those laws things are neither hunky nor dory, and secondly because the laws were put in place for a very good reason, and if they are still not as effective as necessary then strengthening, not eliminating them should be the way to go.
Would you like a Founding Father with that? Here ya go: “Defending British soldiers charged with murder for their role in the Boston Massacre, John Adams … stated:
“It is more important that innocence should be protected, than it is, that guilt be punished; for guilt and crimes are so frequent in this world, that all of them cannot be punished…. when innocence itself, is brought to the bar and condemned, especially to die, the subject will exclaim, ‘it is immaterial to me whether I behave well or ill, for virtue itself is no security.’ And if such a sentiment as this were to take hold in the mind of the subject that would be the end of all security whatsoever…”
I am getting comments for approval….I thought it was a traditional wp thing for first time commenters to be approved by user name…but it is sporadic now, and some people have had several comments needing approval. Anyway, that is why the disparate times between when posted and when appeared…..approval. I will pass it on. I can’t happen all the time like this
The difference between the liberals and the conservatives is that conservatives are scared of their own shadow. They run around clucking like chickens, absolutely terrified of everything.
Most liberals consider the Tsarnaev brothers to be criminals, and we know how to deal with criminals. Most conservatives consider them to be some kind of anathema bogeymen with unlimited powers and resources, so that our only chance of fighting them is to burn the place down with us and them inside.
It’s like the Reagan years when the CIA and Reagan administration puffed up the Soviet menace far beyond any meaningful level. Their weapons were superior, and their economic war machine capable far beyond anything the capitalist system could produce. Even the Russians didn’t think they were that powerful and in that good shape. Reagan and his people were Marx and Lenin’s last believers.
In the Bush years Al Qaeda became an unstoppable entity with offices in every large city and small town in the Mideast, Europe and possibly the US, for that matter. Saddam Hussein, a two bit, tin pot dictator, was the new incarnation of Adolph Hitler, Admiral Tojo, Joseph Stalin, the Joker, Lex Luthor and Magneto all rolled into one.
If Walt Whitman had lived into the late 19th century, he would have written “I Hear America Clucking”.
The liberals, in contrast, considered the USSR the sick man of Europe, morally flawed, unable to produce, dangerous only if driven by desperation. Al Qaeda was a criminal operation that could be defeated by actual intelligence work, and, of course, acting on what we learned. Saddam Hussein just needed some Valium and an anti-aircraft missile fired now and then to calm him down while his nation was slowly dismantled.
There are lots of things that scare us liberals, but we realize that you can’t be scared of everything.
Ah. That explains SOME things, Dan.
And, rjs, how does it feel to be 15 again?
ah, so that’s what this is, the wordpress fountain of youth…
“There is a better approach. Imagine a law that grants police broad but temporary detention and interrogation powers in the aftermath of a mass killing in a public location – in other words, any potentially terrorist shooting or bombing. The police must first seek permission from a judge who will determine whether the act of violence satisfies the criteria, spelled out in the law, about the magnitude and circumstances of the attack. The police may then detain for one week, say, those whom they reasonably believe responsible for the attack, and interrogate them without informing them of their Miranda rights. Perhaps, the term can be renewed for good cause.
The government would provide these detainees with lawyers who would not be allowed to meet with them, but could appeal the initial judicial order, and examine and challenge before a judge the government’s evidence that the detainee is responsible for the attack.
The judge would have the power to revoke the detention power if it is no longer necessary, and to order the release of the detainees if they cannot be tied to the attack. Statements obtained from the detainee could be used against him in trial, unless they were obtained through coercion, intimidation or deception. Conviction would require corroborating evidence.”
Originally I drafted a lengthy post about the various problems I have with this proposal, but I scrapped it in lieu of this:
Yeah, so we basically blue pencil out the 5th Amendment, Eric. Awesome idea.
“For liberals, the constitution is a fetish to be stroked at times of peril; it will protect us, whatever the stakes. ”
And how does Mr. Posner square that statement with conservatives and their fetish over their so-called Second Amendment rights? He’s spending too much time stroking his own ego. That’s a more destructive fetish as it often interferes with logical thinking.