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  #1  
Old 11-26-2008, 09:25 AM
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Default Post-Bush National Security

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  #2  
Old 11-26-2008, 11:54 AM
bjkeefe bjkeefe is offline
 
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Default Re: Post-Bush National Security

Great diavlog. I could happily have listened to these guys continue for another couple of hours. Figuring out how we're going to deal with the Bush Administration's actions is a hugely important topic. To that end, I'd like to see these two come back a lot sooner than five years from now, and I'd like to see other diavloggers discuss it.

Seems to me that we have a few regulars with legal training who are also aware of political realities -- Dalia Lithwick, Emily Bazelon, Rosa Brooks, Glenn Greenwald, to name a few -- who would have interesting opinions on this matter. Rather than matching any of these with someone from "the other side," I think it would be useful to have some diavlogs that start with the assumption that the Bush Administration broke the law, and discuss how best to address the situation.
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  #3  
Old 11-29-2008, 10:40 PM
johnmarzan johnmarzan is offline
 
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Default Re: Post-Bush National Security

Quote:
Seems to me that we have a few regulars with legal training who are also aware of political realities -- Dalia Lithwick, Emily Bazelon, Rosa Brooks, Glenn Greenwald, to name a few -- who would have interesting opinions on this matter. Rather than matching any of these with someone from "the other side," I think it would be useful to have some diavlogs that start with the assumption that the Bush Administration broke the law, and discuss how best to address the situation.
only crazy leftwingers would enjoy that diavlog.
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  #4  
Old 11-29-2008, 11:16 PM
bjkeefe bjkeefe is offline
 
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Default Re: Post-Bush National Security

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Originally Posted by johnmarzan View Post
only crazy leftwingers would enjoy that diavlog.
Oh, I think quite a few sane ones would like it, too.
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  #5  
Old 11-30-2008, 09:12 PM
johnmarzan johnmarzan is offline
 
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Default Re: Post-Bush National Security

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Originally Posted by bjkeefe View Post
Oh, I think quite a few sane ones would like it, too.
it's not yet too late to impeach bush. now, if only we had some political will...
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  #6  
Old 11-26-2008, 12:01 PM
bjkeefe bjkeefe is offline
 
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Default Re: Post-Bush National Security

Just how awful is Eric Posner?
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  #7  
Old 11-26-2008, 12:16 PM
bookofdisquiet bookofdisquiet is offline
 
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Default Re: Post-Bush National Security

Mr. Balkin makes his arguments as an academic, and it seems to me, he makes them in a self-righteous and cowardly way. He claims Bush committed crimes by violating statutes, when legal definitions like "torture" are ambiguous and disputed (as evidenced by this diavlog). So, in light of an ambiguity in the interpretation and definition of these statutes, particularly when the administration just witnessed the largest intelligence failure in the history of the United States, and with a fear Al-Queada agents were in the U.S. with a nuclear device, why wouldn't the president assert his executive authority under Article II to gather intelligence? Would Mr. Balkin change his mind if we discovered that the Bush administration's method lead to the discovery and thwarting of a nuclear detonation in Washington DC? Whether you believe it or not, Bush acted under the belief that the United States faced an immanent attack that threatened the very existence of our country. If you are going to judge Bush's actions, you must place yourself in his shoes.

The truth commission idea is laughable. If Bush faces any sort of trial, I guarantee you a third of this country will revolt in ways that makes the weather underground look benign. 70% of the military are registered Republicans-- how many of those individuals come from places like Texas, Oklahoma, and WV? If you want truth commissions then tear down the Lincoln Memorial and the FDR memorial and rewrite our history. There should be a truth commission, but not for 50 years so a proper perspective can be gained.

I'm glad Mr. Balkin is a professor -- his opinions make it clear that some people are best left to intellectual exploration and not real leadership. Real leadership takes courage, not Monday morning quarterbacking from a man enjoying the view from his ivory tower.

Last edited by bookofdisquiet; 11-26-2008 at 12:19 PM..
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  #8  
Old 11-26-2008, 05:11 PM
Steve Steve is offline
 
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Default Re: Post-Bush National Security

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Originally Posted by bookofdisquiet View Post
If Bush faces any sort of trial, I guarantee you a third of this country will revolt in ways that makes the weather underground look benign.
Would you be among them?
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  #9  
Old 11-26-2008, 11:20 PM
Ray Ray is offline
 
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Default Re: Post-Bush National Security

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Originally Posted by bookofdisquiet View Post
If Bush faces any sort of trial, I guarantee you a third of this country will revolt in ways that makes the weather underground look benign. 70% of the military are registered Republicans-- how many of those individuals come from places like Texas, Oklahoma, and WV?

Ha ha ha! I love it!

First, posturing as tougher than the Weathermen?! What's next? You'll say that right-wing terrorists will make the Bad News Bears look like a Little League Team?

Second, the 33% of the country you refer to are capital 'P' Pussies. Yes; I said it. We kicked their asses in the Civil War; we'll do it again any-motherfuckin'-time.

Third, you just made the following argument available: "we have to prosecute Bush, otherwise the terrorists win!"

Fourth, you are actually arguing that a significant portion of the United States military would turn to terrorism in order to defy legal proceedings against Bush.

Fifth, I admit it: you got the lulz.
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  #10  
Old 11-26-2008, 12:31 PM
Markos Markos is offline
 
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Default Re: Post-Bush National Security

While I'm basically a liberal or a DLC-ish sort of Democrat, I do think that a lot of people generally on the "left" have forgotten the atmosphere of vulnerability that existed in the months and year or two after 9/11. I recall, for example, a very well-known liberal journalist at a major media outlet suggesting that we begin torturing captured terrorists in order to get information about plans for future attacks. I don't think that same journalist would urge that policy today.
But in the aftermath of 9/11 when we residents of NYC lived with the seeming possibility of exploding building, truck bombs, subway bombs, etc. on a daily basis, there was an urgency to gain some control and prevention capability over these things. And I must say, I do not understand how we somehow seem to have prevented the horrors that seemed likely to be imminent.
And I sometimes think that a lot of people have forgotten what the aftermath of 9/11 felt like in NYC.
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  #11  
Old 11-26-2008, 02:15 PM
bjkeefe bjkeefe is offline
 
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Default Re: Post-Bush National Security

Quote:
Originally Posted by Markos View Post
While I'm basically a liberal or a DLC-ish sort of Democrat, I do think that a lot of people generally on the "left" have forgotten the atmosphere of vulnerability that existed in the months and year or two after 9/11.
Speaking as someone fairly far to the left on most issues, particularly regarding the things that Bush & Co. did, I never forget this. I can fully appreciate how it must have felt to be in charge of the country on 9/11, 9/12, 9/13, ... especially when you add in the anthrax-through-the-mail attacks that followed shortly afterwards. This is one of the reasons that I support a Truth Commission approach as opposed to investigations motivated by the goal of criminal prosecutions.

Another of the reasons that I support a TC approach has to do with the political considerations that booksofdisquiet epitomizes. I disagree with books that a TC would provoke the sort of rebellion he thinks would happen. Sure, they're will be no shortage of bloviating in the wingnutosphere and on AM radio and Fox, but I think the overwhelming majority of Americans would agree that finding out the facts is a good thing. Recall how the 9/11 Commission was originally opposed, and later accepted, for example. And here's another selling point -- just tell any conservative/Republican/Bush fan who's against the TC that it's important to find out what went on so as to prevent President Obama from abusing his powers.
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  #12  
Old 11-26-2008, 02:22 PM
uncle ebeneezer uncle ebeneezer is offline
 
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Default Re: Post-Bush National Security

Transparency and accountability are 2 of the most important pillars of the concept of Democracy. I think a TC is a no-brainer win-win deal. Some people will scream and holler and say it's all political, but it's the only way to really get at what happens behind the closed doors of an administration that has used secrecy most flagrantly. If the Obama administration does anything sketchy behind executive blinds, I wil favor the same approach at the end of his administration.
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  #13  
Old 11-26-2008, 02:56 PM
Simon Willard Simon Willard is offline
 
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Default Re: Post-Bush National Security

Guys, I don't think TC is going to happen --- Obama doesn't want it. From his point of view it's an unneeded distraction that makes it more difficult to govern. There's also the universal urge of the executive to protect executive power, a point that Jack makes here.
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  #14  
Old 11-26-2008, 03:32 PM
bjkeefe bjkeefe is offline
 
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Default Re: Post-Bush National Security

Quote:
Originally Posted by Simon Willard View Post
Guys, I don't think TC is going to happen --- Obama doesn't want it. From his point of view it's an unneeded distraction that makes it more difficult to govern. There's also the universal urge of the executive to protect executive power, a point that Jack makes here.
First, how sure are you about what Obama wants? I'll grant up front that he's not likely looking to place a bunch of limitations on what the president can do -- even the good guys always think they should hold on to every tool possible to carry out their agenda. Your point about the distraction is also plausible. However, I think he's sincere when he talks about openness, and I think (or would like to think) that he'll try to find a way of supporting a TC in this light.

Also, I don't think Obama has to play a major role. This could, and should, be the kind of thing that the Congress handles.
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  #15  
Old 11-26-2008, 06:22 PM
Simon Willard Simon Willard is offline
 
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Default Re: Post-Bush National Security

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Originally Posted by bjkeefe View Post
How sure are you about what Obama wants?
I'm making an extrapolation based on Obama's reasonable behavior to date. Think about it. How does tying ourselves in knots to punish Bush help Obama? It will aggravate the Republicans and lead to less cooperation. It's a "non-zero" thing. And Obama obviously doesn't want to continue this tit-for-tat, let's-get-the-other-party's-president-in-trouble politics.
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  #16  
Old 11-26-2008, 07:30 PM
bjkeefe bjkeefe is offline
 
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Default Re: Post-Bush National Security

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Originally Posted by Simon Willard View Post
I'm making an extrapolation based on Obama's reasonable behavior to date. Think about it. How does tying ourselves in knots to punish Bush help Obama? It will aggravate the Republicans and lead to less cooperation. It's a "non-zero" thing. And Obama obviously doesn't want to continue this tit-for-tat, let's-get-the-other-party's-president-in-trouble politics.
Fair enough. Just to be clear, though, I'm not hoping for punishment (except viscerally). I just want what happened brought to light. I recognize there are limits to what could be revealed, but I'd really like to see as much information gotten out as possible.
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  #17  
Old 11-26-2008, 08:23 PM
Wonderment Wonderment is offline
 
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Default Re: Post-Bush National Security

Why do we need a Truth Commission? It's better than nothing, but for now it is being floated as a pretext for not criminally prosecuting the White House perps.

There's not a lot of mystery about what happened. Bushco hired a few extremist lawyers (most notably John Yoo) to produce garbage justifications for torture and other abuses.

Just because you have a few lawyers to bless your crimes doesn't make them legal.

There is no ambiguity about "enhanced interrogation techniques" (including but certainly not limited to waterboarding): they are torture. A gang of White House co-conspirators were in on the torture, including Bush, Cheney, Powell and Rumsfeld.

There is no doubt that war crimes were committed. The only questions are A) Will the Democrats have the guts to call for their prosecution? and B) If they won't, what are the consequences of letting the criminals skate?

Several countries in Latin America have gone after war criminals once they are out of office. Their history suggests that criminally prosecuting political leaders, even decades afterwards, not only is healthy for the nation and its democratic traditions but also serves as a deterrent against other abuses.
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  #18  
Old 11-26-2008, 10:27 PM
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Default Re: Post-Bush National Security

This is a response to your comment here and your comment on Spains position. I tend to agree with you in principle. This general topic has been discussed in this forum in the past. However, I want to add a few caveats. I dont see this issue as an either or situation. When you listen to Jack and Eric you can see that they more or less agree on a number of issues. The main differences between the two seem to be about what strategy to use, when to use it and the consequences on the next governments real or perceived power. Although the topic is being discussed in relationship to foreign affairs, I would have liked to hear some considerations of the impact that any of the proposed measures may have for the American people.

Here are my thoughts.

The timing issue is essential. A new government would want to consolidate and stabilize before starting a process of revisionism that can create unforeseen resentments within government and from the American people. The beginning of a new government has to be a period of stabilization and reconciliation in order to gain the necessary support to effect change. Once the country has stabilized a complete investigation can be pursued. Of course, the exception would be the need to identify groups that would end up creating instability if not neutralized immediately.

The second issue is about the process. Whether an investigation and prosecution for war crimes or a Truth Commission are pursued will depend on what the goal is. I think the goals must be identified in function of the new governments ability to conduct security procedures, its standing in the international community, and also, in function of the American people. If we believe that government has an obligation towards the American people, as I hope it does, the process has to bring closure and reconciliation, promote a higher moral standard and support an improved standing within the international community.

Third, I disagree with rejecting a possible course of action only because it would set precedent. Although precedents are very important and provide consistent guiding principles, we have to recognize that not two situations are identical. Look at the example you provided for Spain: "Who the hell are YOU to demand justice in other countries, when you let Franco's murderers slide?" The first part -who the hell are you? -challenges the authority of a government to make political decisions. I imagine that the decision about what course of action is most appropriate will emerge through a legitimate political process. If that is the case, the answer to the first part of the question would be: We are the government of the United States (or Spain for this example) with authority to make these decisions. The second part of the question implies that what is appropriate in one situation must be appropriate in all situations. That would only be true if the situations were identical. But they are not. So one could make the case that what was true in situation A isnt true in situation B.

Lastly, the emphasis on the American people, or by extension on human rights, would have to be very explicitly stated from the beginning, so that the crimes are stopped immediately.

I find it very difficult to anticipate what will be the best course of action. I dont know all the details, which would emerge during an investigation. But most importantly, the decision shouldnt depend on anyones a priori personal preference but rather on what emerges as the best compromise for all the important parties.

It's good to visit every now and then.
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  #19  
Old 11-27-2008, 02:23 AM
Wonderment Wonderment is offline
 
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Default Re: Post-Bush National Security

Quote:
The beginning of a new government has to be a period of stabilization and reconciliation in order to gain the necessary support to effect change.
I have thought about Jack's argument that Obama and the Dems. would waste too much time and political capital on criminal prosecutions. But torture is a really big deal. Impunity is not an acceptable option.

Also, prosecution should be timely. If Bush and Cheney get busy campaigning for fellow Republicans, building presidential libraries, setting up fancy foundations for favorite causes, it will be harder and harder to make a case.

Something like the Kissinger Effect kicks in. The perps become popular elder statesmen, and prosecution comes to seem inconceivable.
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  #20  
Old 11-27-2008, 09:58 AM
Ocean Ocean is offline
 
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Default Re: Post-Bush National Security

My thoughts expressed a general idea about prosecution. I did include this 'exception':

Quote:
Of course, the exception would be the need to identify groups that would end up creating instability if not neutralized immediately.
I don't have access to what goes on behind the scenes to be able to give an informed opinion. I emphasize the need to keep priorities (protecting the wellbeing of the American people, protecting human rights) in mind when decisions are made.

It will be very important to know the facts before continuing with speculation.

Happy Thanksgiving!

PS: This is not a religious holiday, is it?
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  #21  
Old 11-27-2008, 03:30 PM
Wonderment Wonderment is offline
 
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Default Re: Post-Bush National Security

Quote:
Happy Thanksgiving!
Igualmente.

Quote:
PS: This is not a religious holiday, is it?
As President Clinton would say, "It depends what is is."

I'm off to San Diego with the family to see (instead of eat) the wild animals. A family reunion with gorilla and bonobo ancestors is a religious experience for me.
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  #22  
Old 11-27-2008, 04:43 PM
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Default Re: Post-Bush National Security

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Igualmente.



As President Clinton would say, "It depends what is is."

I'm off to San Diego with the family to see (instead of eat) the wild animals. A family reunion with gorilla and bonobo ancestors is a religious experience for me.
Beautiful zoo! I like the New York Zoo better, but that's just partisanship... Have a wonderful trip! And say hi to the family.

Did I ever tell you the story about my middle son and the orangutan at the Seattle zoo? OK, some other time...
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  #23  
Old 11-28-2008, 11:50 AM
uncle ebeneezer uncle ebeneezer is offline
 
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Default Re: Post-Bush National Security

Believe it or not the Cincinati Zoo is pretty outstanding. Might be the only thing I'd recommend in Cincy.

Happy Turkey Day everyone!! --Uncle Eb
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  #24  
Old 11-28-2008, 01:05 PM
bjkeefe bjkeefe is offline
 
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Default Re: Post-Bush National Security

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Believe it or not the Cincinati Zoo is pretty outstanding. Might be the only thing I'd recommend in Cincy.
Coastal elitist. ;^)

I've never been there, but I have to say, unless they've closed down the Contemporary Arts Center, there's at least one other place in Cincinnati I know I'd want to see.
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  #25  
Old 11-28-2008, 07:50 PM
Miriam Miriam is offline
 
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Default Re: Post-Bush National Security

I agree with Simon. While it would be healthy and moral, there won't be Truth commissions and there won't be consequences.

What hasn't been mentioned is that the Democratic congress (or at least the leadership) has been fully complicit in this. There were briefings and opportunities for dissent. And it was a Democratic congress that rolled over on FISA.

This is just the way it works for Republicans. If Clinton had tortured on the other hand, there would have been a hanging.
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  #26  
Old 11-27-2008, 09:18 AM
Tyrrell McAllister Tyrrell McAllister is offline
 
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Default Re: Post-Bush National Security

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Originally Posted by Markos View Post
While I'm basically a liberal or a DLC-ish sort of Democrat, I do think that a lot of people generally on the "left" have forgotten the atmosphere of vulnerability that existed in the months and year or two after 9/11. I recall, for example, a very well-known liberal journalist at a major media outlet suggesting that we begin torturing captured terrorists in order to get information about plans for future attacks. I don't think that same journalist would urge that policy today.
But in the aftermath of 9/11 when we residents of NYC lived with the seeming possibility of exploding building, truck bombs, subway bombs, etc. on a daily basis, there was an urgency to gain some control and prevention capability over these things. And I must say, I do not understand how we somehow seem to have prevented the horrors that seemed likely to be imminent.
And I sometimes think that a lot of people have forgotten what the aftermath of 9/11 felt like in NYC.
The premise of your argument seems to be, "We shouldn't punish people for behaving badly when the temptation to behave badly is strong." But to me it seems that the opposite is the case. What's the point of threatening to punish non-tempting bad behavior? It is precisely when there is temptation that there should be a credible threat of punishment to counterbalance it.
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  #27  
Old 11-26-2008, 01:17 PM
Titstorm Titstorm is offline
 
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Default Re: Post-Bush National Security

i don't see anything happening to them so i think it's a waste of time. can anyone see bush actually going on trial let alone doing significant time?
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  #28  
Old 11-26-2008, 01:34 PM
ginger baker ginger baker is offline
 
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Default Re: Post-Bush National Security

great discussion about some political substance!
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  #29  
Old 11-26-2008, 02:50 PM
BeachFrontView BeachFrontView is offline
 
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Default Re: Post-Bush National Security

The true Power of the United States Presidency.

http://bloggingheads.tv/diavlogs/161...8:49&out=28:56
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  #30  
Old 11-26-2008, 02:57 PM
gwlaw99 gwlaw99 is offline
 
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Default Re: Post-Bush National Security

What I would have liked is Eric Posner for the defense vs. Jack Balkin for the prosecution. Instead of taking in so many generalities about what could be the charges and what general theories of the constituional law the case would fall under, I really wanted to hear them make the actual consitutional and statutory arguments for and against criminal prosecution. Although, it may be unfair to ask this of them as they would have to do serious research on the issues.
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  #31  
Old 11-26-2008, 03:46 PM
bookofdisquiet bookofdisquiet is offline
 
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Default Re: Post-Bush National Security

What is torture? Is waterboarding torture? There is certainly an ambiguity there with the statute that wouldn't even allow you to have a trial. If the statute said the act of waterboarding is torture and Bush did it anyway-- then you could have a trial. For arguments sake lets assume that is how it went down (although it never happened like that).

Let us assert that waterboarding was used and Bush claims it was done in a version of some theory of self-defense. Is waterboarding allowable when there is a reasonable belief its use could lead to intelligence that would save American lives? If so, how many lives 10 or 1 million? Can you waterboard someone to stop a car bomb or only to stop a biological or nuclear attack?

Did Bush have a reasonable belief that the use of waterboarding could lead to such intelligence? First, is the technique of waterboarding effective? What is the standard to prove its effectiveness? Secondly, what is the basis for showing the detainee has actionable information? Who sets these standards?-- the executive, the judiciary, or the congress? Is there an imposition from the judiciary or the congress on the executive branch if they set the standards and those standards impead the president's ability to exercise his powers under Article II?

The fact that there are no reasonably easy answers to these questions-- let alone the whole exploration of mens rea-- should give Bush a pass. The TC is laughable -- where were the truth commissions for LBJ, FDR, JFK, Lincoln, Wilson, Reagan, -- I could go on and on. More correctly, most of what Bush did will be classified information for the next 30 to 40 years -- just like the other presidents. It's not like anything Bush did is secret-- they've released the torture memo, admitted to waterboarding the man responsible for 9/11 (also responsible for cutting Daniel Pearl into 10 pieces). They disclosed to 15 members of congress including Jay Rockerfeller everything they were going to do in regards to wiretaps and surveillance before it was implemented. It's not exactly like they hid the ball.

Obama will never allow a TC. -- at heart he's not an academic, he's a leader. Considering what leaders have done in the past in times of national threat, history will prove Bush a much milder version of FDR. It's straight partisan idealism that seeks TCs, and if they do come-- those academics that advocate them should be very careful--the verbal bullets they have been firing on this issue for the last 5 years may be fired back at them from metal casings.
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  #32  
Old 11-26-2008, 05:56 PM
popcorn_karate popcorn_karate is offline
 
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Default Re: Post-Bush National Security

Yes, waterboarding is torture. no it is not ambiguous. that is why we (the US) called it a war crime when others did it to us.

also, this is your second threat of violence on this board today. are you sure that is where you want to go?

One thing I will assure you of is that threats of violence are cheap. If people in this country were really willing to consider that kind of action, it seems to me it would have happened right after the coup that placed GWB in power. If people don't mind a coup, it hard to see how a little TC political theater would send people over the edge.
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  #33  
Old 11-26-2008, 05:49 PM
Jon Jon is offline
 
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Default Re: Post-Bush National Security

Unless a truth commission or trial is developed by independent internal or external entities there is no likelihood that the Democratic congress have any incentive to have their own complicity in the use of rendition, waterboarding, FISA violations, etc. become public knowledge. They as well as the Republicans just want to see this go-away.

The only way I see the truth emerging is for a type of class action in the courts. I am sure that the government will oppose this sort of suit as not having the standing to have this informaiton available in a disclosure process.
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  #34  
Old 11-26-2008, 05:59 PM
popcorn_karate popcorn_karate is offline
 
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Default Re: Post-Bush National Security

I think you hit the nail on the head with that post, Jon.

I have to agree. Nothing will happen because too many people are invested, from both sides.
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  #35  
Old 11-26-2008, 06:13 PM
sugarkang sugarkang is offline
 
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Default Re: Post-Bush National Security

Lefties have selective hearing. Remember it was FDR who was responsible for Japanese internment camps. Sure, its easy to rail George Bush now. But just think what would've happened if they did find WMDs in Iraq. We wouldn't be having these conversations about FISA, Guantanamo, etc.

Do you really think that it makes sense that we would've gone in there not expecting to find WMDs? Going for the TC, as much as I'd like to, isn't going to help.
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  #36  
Old 11-26-2008, 06:46 PM
basman basman is offline
 
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Default Re: Post-Bush National Security

I thought this an excellent exchange between two very substantive and obviously smart guys.

I thought the question Posner raised early on whether Obama would nominate technocratic type judges or more ideological/content type judges was interesting as was the discussion of the constituencies that have to be served in such nominations. In positing the contrast between a Breyer and a Thurgood Marshall, I think there was some nostalgia. I believe--the anomaly of Harriet Miers to the contrary notwithstanding--judges lacking great (appellate type) intellect-- which Marshall lacked, however good a trial counsel he was--will not be put forward by Democrats for consideration. (I can't see in fact the technocratic/ideological split in Breyer for that matter. His is a superb intellect which goes hand in hand with his center liberal leanings. I don't think of him or Ruth Ginsburg at all as technocrats.)

The Bushes put forward ideological judges because their support was consistent with those nominations. For the Democrats to hold presidential power, my theory is, they need to occupy the moderate centre, which has certainly shifted left, with as few nods to their-left-of-them consituencies as possible.

I think Eric Posner is his father's son when it comes to his theory of constitutional law and how it changes, tying it, as I understood him, to pervasive changes in public sentiment, and to that public sentiment as the ground for legitmacy, rather than what Richard Posner derisively calls "legalist accounts'' particularly at the level of your Supreme Court (where the cases have to be hard cases to get there), for which cases he and Eric Posner are dismissive of the efficacy of conventional legal materials--"they get you nowhere"--which cases reflect the gap between public rhetoric and what is really going on in deciding those cases (which I don't take as necessarily an argument against legal posivitism as framed by Leiter and Shapiro).

So as the new administration comes into power, and as, as Balkin says, structural arguments tend to get lost in the shuffle, and as Obama, who to the consternation of his left, increasingly campaigned to the center, who supported the just passed FISA legislation, who is going to make Hillary his Secretary of State, who is keeping on Robert Gates, who is making so many nods to former Clintonians, who is getting a most inside view of how dangerous the world Bush has been struggling with for the last eight years is, and as and when America thinks about other things than the economy and cleaves to its desire to be safe given the increasing danger of portable wmds, as both guys noted, and for a variety of other prudential and substantive reasons, the chances, I'd say, of criminal prosecutions or a truth commission are about that of a fart doing well in a windstorm.

It will be fascinating to see Obama, who is the ultimate centrist, pragmatist and who will be, I'd say, the quintessential Third Wayer, deal with the hard questions the world throws at him as in doing so, he will surely, typically, leave those on his left disappointed. For example, even farts in wind storms will make out better than the possibility of war crime prosecutions of Bush et al for torture--which I think by statutory definition water boarding is--Nuremberg stye, or any other style.

Finally, I'd say that even on the issue of torture, where Posner came out concluding in hindsight Bush was wrong, I prefer his attempt to see the issue, and tend to be exculpatory, as Bush et al must have been looking at it, to Balkin's morally outraged, presentism-laden perspective.

Itzik Basman

Last edited by basman; 11-26-2008 at 06:50 PM..
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  #37  
Old 11-26-2008, 08:10 PM
timba timba is offline
 
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Default Re: Post-Bush National Security

My sense is that Obama, whose day job was teaching constitutional law, will base his choice more on finding the greatest judicial mind of the day than using the nomination as a political move.

Great diavlog by the way.
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  #38  
Old 11-26-2008, 08:57 PM
Wonderment Wonderment is offline
 
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Default The Spanish model

The Spanish model that Eric alludes to is not a good example. First of all, Spain became a democracy after decades of fascism. It was not a transition from one democratically-elected government to another, as is our case. By definition, there was a radical break from the past. Citizens didn't have to fear a lack of deterrence for future administrations because the future would be democratic as opposed to fascistic.

Also, it is debatable whether Spain has properly healed from fascism. There are a couple of problems: 1) Spain's credibility as a human rights champion is forever in question. For example, whenever Spain makes some claim about Israel, Chile or Myanmar, the world asks, "Who the hell are YOU to demand justice in other countries, when you let Franco's murderers slide?" 2) Millions of Spanish families remain the victims of the whitewash of fascist crimes. They were deprived of justice. Period. They simply have to eat it, which is not a good outcome.
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  #39  
Old 11-27-2008, 01:32 AM
timba timba is offline
 
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Default Bush as Jack Bauer

From Siegelman to Plame to Abramoff to the US Attorney scandal to war profiteering to bid-rigging to Cheney's secret energy commission to Iraq War evidence fabrication to domestic spying that clearly has no terrorism component -- there are plenty of reasons to investigate and indict Bush without going anywhere near Posner's compelling but ultimately strawman Sophie's Choice / ticking suitcase nuke dilemma.

And he should seriously be investigated and indicted on all those issues to avoid setting the precedent that crimes of that nature committed by future presidents should be similarly swept under the rug. Not to do so it short-sighted in the extreme.

Trying to distract us from those crimes by putting Mr. Balkin in a hypothetical situation where he has to torture a terrorist or watch a major US city go up in a mushroom cloud is disingenuous in the extreme.
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Old 11-27-2008, 02:14 AM
Wonderment Wonderment is offline
 
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Default Re: Bush as Jack Bauer

Quote:
And he should seriously be investigated and indicted on all those issues to avoid setting the precedent that crimes of that nature committed by future presidents should be similarly swept under the rug. Not to do so it short-sighted in the extreme.
Prosecution of war criminals is also a responsibility we share as citizens of a society that stands for human rights. If we fail to hold the Bush abusers accountable, we fail to defend democracy; we are complicit.

We also owe the prosecution of Bush to human rights victims everywhere. We cannot simultaneously condemn human rights violations in Iran or Myanmar, while tolerating them in Guant嫕amo.

Neo-cons, presumably, would be in favor of prosecution, since they believe so fervently in spreading democracy around the world.
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