Scratching a petty, but annoying itch
Posted by Lance on 13 Oct 2006 at 5:42 am | Tagged as: Law, History, Lance's Page, Foreign affairs, Domestic Politics
***Update X2 See comments in response to glasnost for further elaboration on timing.
Granted, it is a minor irritant, but I am going to scratch anyway. Yesterday our government charged Adam Gadahn with treason. Andrew Cohen of the Washington Post is perturbed about this, as he is often perturbed. Andrew does some good work, though his analysis of the legal landscape is occasionally rather shallow and shows little interest in understanding why other people believe what they do. He in the recent silly Scalia/tequila controversy was of course quick to jump in for condemning Scalia, which in my mind proves one is more interested in attacking someone than analyzing what they do or say. It is an argument in bad faith. Orin Kerr analyzed that little kerfluffle and Parable Man goes at it as well, so I’ll leave it at noting he is a somewhat crude partisan at times, but I’ll move on rather than pointing out every instance and give him some props for covering some under covered subjects in a reasonable if one sided manner.This however sticks in my craw. Maybe it shouldn’t, but it does. Andrew writes a post entitled The Making of a Terror Rock Star:
Why has our government decided to turn this roadie for Osama bin Laden into a larger-than-life, twice-in-a-century example of the struggle against global terrorism? What has he done to merit what the feds call “perhaps the most serious” charge “under our Constitution”? Is appearing on a video enough, really, to support a capital treason charge? Why do it now? And how precisely does indicting this guy for treason make us safer from terrorists? Don’t ask me. I just don’t know.
If, as the feds say, they made their move now to counter the propaganda threat posed by Gadahn’s participation in those videos than it seems to me that the Administration has just bolstered, and not diminished, that threat. By singling out Gadahn for treason– remember, neither any of the U.S.-born “enemy combatants nor John Walker Lindh were ever so charged since 9/11– the government has unilaterally and voluntarily elevated him into a sort of Terrorist’s Hall of Fame. And that can only serve to increase both the scope and the power of his ugly message.
Why might we be doing this? For starters I would point out to Andrew the fact that he is a traitor. Beyond that obvious fact is that his deeds fit the legal definition of treason under our Constitution. In fact, I would suggest cases such as this are the true usefulness of the charge of treason.
Treason was put into the Constitution not because it was more important than other crimes (though arguably it is) but because our framers wanted it to be restricted to protect against the abuses they had witnessed under the monarchs of Europe. Treason is an explicitly political crime, and its justification is political (as is impeachment.) The problem with such a political crime is that it would normally be open for abuse by the government which might define dissent as treason or possibly be used to get rid of enemies or opponents who were not actually threatening the nation and its citizens, but instead the political power of the state or its leaders. Therefore to insure that the President and the state were going to use it as intended it was enshrined in the Constitution itself rather than be left to be defined by the legislature or executive.
Thus, while espionage and the actual taking up of arms could be considered treason, we have generally prosecuted them using other laws. If those two types of acts were the type of thing our founders were concerned about as defining treason then the Constitutional language would not be necessary. The problem was treason is a far broader and more ambiguous political act. It might include those other things, but at its heart is the crime of disloyalty, however expressed. That was open to all kinds of abuse, so it was limited:
Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.
Normally fighting in an army is not a crime. What makes it a crime is that for a US citizen you are being disloyal if it is against the US. Despite that distinction most people would consider that an obvious case. It is the next two phrases that from a political standpoint it was important to state were the only other reasons to consider someone a traitor. One must adhere, as in attach oneself, to an actual enemy and give him aid and comfort. Thus mere dissent, or criticism which might aid an enemy, was excluded. This is a purely political charge and is done for a political crime and as such Gadahn is the poster boy for such a charge. He, as far as we know, has not fought against us, nor conspired in any actual terrorist acts, he has instead adhered to them and given them aid and comfort. That is what the charge is for and that is how it is being used. That it has not been used, or needed in recent years doesn’t make its use illegitimate now. Of course the most recent cases of treason were remarkably similar, Axis Sally and Tokyo Rose. Unfortunately the case of Tokyo Rose was a travesty of justice, but I doubt the same will be said of Gadahn.
Much like the gratuitous slap at Scalia over the tequila remark, this is an attempt to complain for the sake of complaining. Of course he is not the only one. The always reliable critic at any turn, the Master of Puppets himself, weighs in with this:
One notable aspect of the Bush administration’s treason accusation is that the only basis for it seems to be Gadahn’s appearance in the Al Qaeda videos, not any actual involvement in any terrorist plots. As the Post reported, “McNulty said the government had no information indicating that Gadahn was directly involved in planning or carrying out terrorist attacks.”
Exactly, which is why treason is the most appropriate charge which the Puppet Master obscures in all his huffing and puffing. Tom Bell deals with his complaints about the likelihood of conviction and Eugene Volokh discusses the predictable cries that this is a first amendment issue. In the end the man who pulls Rick Ellensberg’s strings main complaint is that it is being done now for political reasons. Well now, isn’t that shocking! They are making a political calculation in making the charge now! Surprise, surprise! Can we be candid Mr. GreenEllensWilson or whatever your name is? Politicians always do that. In fact, I find one of the most boring excuses in the world for criticizing a politician is that they consider the political impact of what they do. Previous to this administration we had the Clinton Whitehouse if you can remember that far back. I am quite willing to understand why one might prefer that administration to this one, but one area where I am quite comfortable that this administration is less objectionable (granting, which I don’t, that it is an objectionable trait) is on subordinating the timing of policy to political concerns as opposed to pursuing objectionable policy for reasons of political gamesmanship.
My answer to this complaint is, so what? If the charge is appropriate, that they time it (assuming that they are guilty of this horrible crime) for maximum political effect is completely unobjectionable. Now, if they have had the opportunity to nab him earlier, but in order to put on a show delayed his capture to follow the charge right before the election, and thus risked losing him or something along those lines then we have something I can get at least a bit worked up over. To make it clear, I have no problem, as long as it caused no harm, with them already having him and delaying the announcement right before an election. Politicians can play all the games they like to get votes as long as what they do causes no harm and I will be plenty happy. I am worried about their harm, not that the symbolism is timed for an election. Everything politicians do is for a political impact in one sense or another.
Update: The Washington Post has an article which covers much of the same ground I do.
Technorati Tags: Adam Gadahn, treason, Consitution, Tokyo Rose, Axis Sally, Clinton, Bush
4 Responses to “Scratching a petty, but annoying itch”
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Well laid out, Lance.
Given what you just posted I think we are somewhat on the same page as to a lot of this nonsense. In fact we have been fairly sympatico on quite a few things lately along these lines. One might even think we are coordinating our message. Which makes me think three things.
The first is that this whole idea of finding coordination of messages under campaign finance laws is pretty ridiculous. How can you tell? We almost never discuss what we are writing (and the discussion this week which we had, a first, about what was coming up hasn’t yielded a single post. So far we have all gone different directions than we said we expected to. Talk about herding cats, I didn’t succeed in herding myself.
Second, I am glad blogs are free from that kind of regulation so far, but why that makes any sense compared to any other medium is beyond me.
Finally, it is a good thing general disgust and a desire not to support either of these monstrosities isn’t regulated. We can coordinate and spew invective all we want, or would that be true if blogs ended up under the rules? Now that I think of it, it might not be.
Politicians can play all the games they like to get votes as long as what they do causes no harm and I will be plenty happy. I am worried about their harm, not that the symbolism is timed for an election. Everything politicians do is for a political impact in one sense or another.
Certainly true. I don’t care much either. But you can bet your boots I’d care if it wasn’t a hopelessly irrelevant political gesture with not much chance of affecting the bottom line.
Why would I care, if everything politicians do is timed for political advantage and it basically works out ok anyway?
Well, the good case is that the need to shape the world so that important events happen right before election day almost inevitably leads to greater and greater manipulation of the underlying reality of the event in question, in order to make it boost your votes. Once you start from the perspective of “let’s get us some votes” instead of “let’s bring this guy to justice”, you’ve corrupted the rationale, and greater corruptions of fact will therefore flow.
On the other hand, it also not right to toss out the intrinsic merit of an event simply because it’s timing may or may not have been manipulated for maximum gain. Our system relies on doing things that turn out to be good for Americans in general because it in turn is to a given politician’s personal benefit. There are no altruists here.
Which is why, even though the charges against Democrats manipulating Foleygate for election-day impact were baseless, I wouldn’t have cared if they weren’t. The charges were true, it was good for the country that they came out no matter when that was, and some tactical manipulation for the non-essence for political gain is part and parcel, if it happens.
Ditto for the NIE leak - it was good for the country. Election timing is irrelevant on the merits of the leak.
Ditto the new Lancet survey. The casualty numbers we’ve been using for most of this conflict have been a mockery of truth. (Total numbers of those killed in Iraq = total numbers reported on by the AP? are we kidding?) When the truth comes out is incidental, just get it out.
Same thing for all those alledged BushAdmin terror busts right around 04′ november - if they’d been real busts of real terrorists reported honestly, well, whatcha gonna do?
Unfortunately, too many of them were manipulated beyond timing to attributing plans and capabilities that never existed. Now, that’s a serious breach of trust.
However, the timing of a disclosure of a truth is a basically frivolous charge - fair game.
I am glad we agree on my basic point. But I still need to scratch.
That is actually a very good point, and one I agree with, but what are you gonna do? I suggest complaining about them doing just that. When they are not, when they are doing exactly what they are supposed to do we not complain. I promise you, when every year, as they always do (should the Dem’s take back the legislature) I promise not to make my complaint about the timing of legislation handing out goodies to the electorate. It will instead be on the substance. If they do something good (I am speaking of something from my viewpoint, not yours) such as endorsing expanded school choice or indicting someone who should be indicted I resolve right here, and please hold me to it, not to grouse about the timing. I may grouse that it doesn’t go far enough, that they won’t really push it, but no whining about how improper it is in an election year to do something that makes me like them more. I don’t need to make such a pledge to the Republican readers because, well, the post makes it clear Republicans should be given the same courtesy.
All very different, not that I was particularly exercised by them.
Foley- It depends. If the outrage is that nothing was being done about a dangerous predator and the delayed disclosures allowed said predator to continue his predations then it falls under the reason to criticize timing matters discussed in the post. Now I have seen no evidence that Foley was a particularly dangerous predator, and I suspect many of those doing the manipulation feel the same, but that gets into hypocrisy and dishonesty, so I’ll leave it at that here. I’ll see you later in the other thread on that.
NIE- forget the merits of the leaking for this discussion, timing is important here. Complex subjects with shaky reporting (whatever the merits or demerits of the program, our understanding of it has changed a lot since the initial disclosures which were rather vague, well, in fact they still are. The term shaky is not a criticism, the story being about a classified program is inherently at a disadvantage there) and for a media outlet to time the dropping of such a bomb to effect an election is a problem. I am not suggesting not reporting it at such a time, but specifically timing such a report when there is no way for the reports veracity to be determined, and allow for a full discussion so that people can vote on it intelligently is problematic for me.
The Lancet- First of all the figures used have not been whoever the AP reports. Nevertheless, the issue with the Lancet report is it is almost undoubtedly wrong. False reports that are very hard to disprove except to get into highly complex methodological debates is hardly the kind of thing to publicize right before an election.
This is something I know a bit about and using the kind of methodology the Lancet study does is highly inappropriate in this kind of situation, not to mention all kinds of questionable design decisions and assumptions. The authors knew that this would ignite intense debate and therefore should have published it so that people would have time to have that debate. So even if one gives the authors the benefit of the doubt in believing the study is designed in such a way as to give a reasonable range of likely outcomes, they had to know that the result would deserve a debate in the scientific literature. They have instead conducted this as a political event. That is wrong and the timing is a legitimate issue. If this study had been released last January or even May I would criticize the study, but I wouldn’t on grounds of timing.
When it does, as in the Lancet study we should swing away. By the way, I am not saying the authors believe their study illegitimate. I believe they have been willing to dismiss serious issues (as we all are) on grounds that seem rational (this is how all such research is done, this is standard procedure, etc.) but that a skeptical scientist would not. When things agree with us or provide evidence that makes us feel justified in other beliefs we lose our skepticism, when they don’t, we find it. Nothing new or unusual (even in science, read or refer to Kuhn) in that.