A Second Hand Conjecture

Marty Lederman has a nice post up on the revelations of Daniel Levin about the development of the “torture memo’s.” Read the whole thing. I do have some caveats. He refers to Jack Goldsmith’s book which criticizes these memo’s and the way the Justice department was functioning at the time (and on a related note, Goldsmith’s book is featured prominently at Instapundit. Including an interesting podcast with Goldsmith himself. Of course the criticism’s implicit in all this laudatory coverage of the book are only imaginary I guess. If you would like to read them, go here.)

Yet the post is filled with shock and disbelief, and that is what I want to address. One would think this wouldn’t surprise him, because if he didn’t know how very believable such behavior is, he should know after reading the book. For example, I refer you to Geoffrey Stone’s review:

The following anecdote captures the mood: In spring 2004, Goldsmith informed Addington that the administration could not lawfully implement a potentially important counterterrorism measure. Addington, who “acted with the full backing” of the vice president and who routinely “crushed bureaucratic opponents,” exploded: ” ‘If you rule that way, the blood of the hundred thousand people who die in the next attack will be on your hands.’ ”

Addington’s response speaks volumes about the incredible and understandable pressure felt by the Bush administration to keep America safe. Every morning, the White House receives a ” ‘threat ma- trix’ ” that lists every threat directed at the U.S. in the preceding 24 hours. The matrix can be dozens of pages long. As Goldsmith notes, “It is hard to overstate the impact that the incessant waves of threat reports have on the judgment of people inside the executive branch who are responsible for protecting American lives.”

One of Goldsmith’s colleagues in the administration analogized “the task of stopping our enemy to a goalie in a soccer game who ‘must stop every shot,’ ” for if the enemy ” ’scores a single goal,’ ” the terrorists succeed. To make matters worse, ” ‘the goalie cannot see the ball — it is invisible. So are the players — he doesn’t know how many there are, or where they are, or what they look like.’ ” Indeed, the invisible players might shoot the ball ” ‘from the front of the goal, or from the back, or from some other direction — the goalie just doesn’t know.’ ” With such a mind set, it is no wonder that 9/11 generated a “panicked attitude” within the White House.

Exacerbating this attitude was a profound and little-noted transformation in the legal position of the executive branch over the last 50 years. In past crises, presidents like Abraham Lincoln and Franklin Roosevelt faced extreme threats to the national security. But they enjoyed broad freedom to respond to the danger without meaningful legal constraint.

To illustrate this point, Goldsmith relates in some detail Roosevelt’s decision to intern almost 120,000 people of Japanese descent after Pearl Harbor. Although Atty. Gen. Francis Biddle strongly opposed this action and advised Roosevelt that it was unlawful and unconstitutional, the president blithely ignored Biddle’s advice. Goldsmith writes:

“Having failed once to prevent a surprise attack by people of Japanese ancestry, [Roosevelt] did not think he could afford to ignore popular demands for security. . . .

“Roosevelt could think this way because the law governing presidential authority during his era was largely a political rather than a judicial constraint on presidential power.”

FDR was concerned “about the reaction of the press, the Congress, and most of all, the American people,” but he was not at all concerned “about being sued or prosecuted, or about defending his actions before a grand jury or an international court.”

Thus we get both a look into the enormous pressure the White House felt, and the past where far more egregious behavior occurred. Both speak to exactly why we should believe what we see here, why the Bush administrations response of trying to overcome the huge legal hurdles they faced led to solutions which Glenn Reynolds characterizes this way (the entire podcast is worth listening to/reading)

I’ve noticed something about the Bush administration’s legal arguments. And it doesn’t just relate to the war, it goes to all sorts of things. I mean, I wrote an article this summer about the — Dick Cheney’s office claiming, earlier this summer, that he’s a legislator not a member of the executive branch. And thus not under certain statutory duties that members of the executive branch are under. And, you know, you get these, sort of, clever but, sort of, over the top arguments that you might make to lighten the tension when you’re in the middle of a late night brainstorming session. And then everybody has a good laugh. And maybe you, sort of, bat the ball back and forth a few times. And then you return, sort of, to the more sober task at hand, only they actually make that their main argument. I mean, what’s going on with that?

Now I realize this is not a criticism of the administration, it just sounds like one to us rubes who buy Glenn’s schtick (see this comment thread) but it goes to the heart of how the administration has failed to stand up to the pressure of the moment.

We shouldn’t be surprised by this because that is what governments (or people in general) do in every area of our lives. The exact manner in which this is done may vary. If it isn’t pressuring lawyers to give cover, it is appointing judges who reinvent the Constitution to restrict the second amendment, herding legislatures and public opinion to ignore our Constitution to intern tens of thousands of Japanese, pack the court to destroy limits upon the Constitution’s restrictions on government power, develop legal theories which turn the commerce clause from a limit upon the authority of the state to a blank check to do almost whatever it wishes, or simply have the entire government ignore our own crimes, tortures and other brutal acts while we try our enemies under Roosevelt, and on and on and on.

So while Marty’s general analysis is sound, his shock and indignation should be the surprise, not the behavior itself, but of course it doesn’t.

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