January 29, 2006

Why Alito Should and Must Be Filibustered: The Power of "No," Revisited

[I will have much more to say about the Bush administration's unceasing fundamental attack on the rule of law during the coming weeks. For the moment, I will only note that this attack has been going on without pause for several years. It hardly began with the revelations about Bush's warrantless wiretapping. If that particularly egregious example of Bush's belief that whatever he does is legal solely because he does it serves to wake people up, fine. But in fact, they could and should have woken up much, much earlier. There have been many manifestations of this attack for a long time -- and it is only the abject failure of our media and most commentators to understand the most basic principles of political thought and analysis that has permitted these attacks by the Bush administration to go unanswered for years.

There are numerous other and more significant examples of this failure, and I will be discussing some of them soon. But here is one revealing example, one that involves a blogger: I heard a fairly well-known liberal blogger interviewed on a well-known liberal radio show recently. The blogger was explaining the dangers represented by the Alito nomination. He contrasted the Alito case with the Roberts nomination, and he said that Roberts "had no record," so it was easier for the Republicans to get the Democrats to accede to the nomination -- which many of them did, to their eternal shame.

In fact, this is entirely wrong: on the issue that is now the most critical -- the question of the scope of executive authority -- Roberts does have a record. It may be only one case, but the decision that Roberts joined just before his nomination was announced states clearly and unequivocally that, in wartime, the President can do whatever he wants, even with regard to American citizens -- and that he is subject to no oversight at all, not from Congress and not from the courts. Read this Emily Bazelon article for more details about the Hamdan case and its significance. On a question of this magnitude, one case is more than enough. It is unforgivable that the Democrats completely surrendered on the Roberts nomination, and that they put up no fight at all.

It is true that the record is much longer, and much more damning, in the case of Alito. For that reason, Kerry is entirely correct to maintain that this is where the line must be drawn -- if one gives a damn about individual rights and if one wants to prevent the intallation of an utterly unrestrained imperial presidency. If the Democrats are unable to put up a strong fight against the Alito nomination, they may as well leave Washington altogether. The individuals that a President puts on the Supreme Court represent his most significant and far-reaching legacy: a legacy that is longest in duration and that has the greatest scope. (I say that on the perhaps unjustified assumption that Bush will not blow us all to kingdom come before he leaves office, a subject to which I will return when I complete my series on Iran this week. If Bush should finally instigate a war that covers much of the globe -- and a war which may well involve at least tactical nuclear weapons -- then the makeup of the Supreme Court may be of little moment, along with everything else in our lives.) On his record, one can only conclude that Alito, like Roberts, will be prepared to grant the President absolute authority to act in whatever manner he chooses as long as the neverending "War on Terror" continues -- and that he will question or restrain that authority only in minor ways, and on points that are of comparatively little significance.

This is not a risk that anyone who is capable of understanding these issues to any extent at all should be prepared to take. If the Democrats roll over for this nomination, they will have committed group suicide. No one should ever trust them again on any matter of importance -- and certainly not with regard to issues of individual liberty, or war and peace.

I am not naive or unrealistic: the Democrats may well lose in the end. But when the stakes are this high -- and here, the stakes encompass everything that matters with regard to the future of our country -- you must fight, even if you lose. If the battle is waged with an understanding of the profound importance of the issues involved, at the very least the public will be more aware of the nature of the struggle by the time it is over. As a result, more people will be prepared to fight the next battle more effectively. Up until now, the Democrats have employed the opposite strategy: each surrender makes them progressively weaker, thus rendering them more incapable of fighting when the next crisis arises.

I first published the essay below on July 6, 2005. It was entitled: The Moral Bankruptcy of Our National Politics: The Power of "No." It makes the more general argument regarding these points.

When you are asked to accede to that which you know to be deeply immoral and wrong, and to be ultimately destructive of what once made the United States the great nation it was -- and if you care about honor, decency, your own life and the lives of your fellow Americans -- then you must say no, even if you are almost certain that you will lose.

A very powerful "No" could provide us with more time, time that is desperately needed to right our nation's course. It might save us -- and at the very least, those who say "No" will save their own souls and consciences. If the Democrats in Washington are unwilling or unable to act in this manner, they will have damned themselves. They will no longer be any concern of mine -- nor, I would submit, should they be a concern for anyone who understands the nature of this battle and who gives a damn.]

Every time I begin to harbor the barest glimmer of hope that the Democrats might serve as a brake on the worst excesses of the increasingly contemptible and loathsome Bush administration, the Democrats act in a manner to confirm that they are almost the equals of Bush & Co. insofar as their complete moral bankruptcy is concerned. In the end, the Democrats consistently reveal that they possess no confidence whatsoever, and they they especially and most depicably lack moral courage in even the most minuscule amount -- and that all they care about is political power.

Of course, to believe for even a moment that the Democrats might finally summon the smallest bit of bravery requires that one forget that they provided no opposition whatsoever during Bush's lie-fuelled drive to his "optional" and disastrous invasion of Iraq, and that they thus continued to accede to the completely unconstitutional notion of "Executive war." And I don't want to hear about how Congress voted only for a "limited" resolution, which fell short of war. If an ordinary citizen following the news in the summer and fall of 2002 could figure out that war was inevitable, how stupid do the Democrats have to be -- or how stupid do they believe we are -- to think they can get away with this transparent rationalization of their cowardice? Don't answer that; any accurate reply would be exceedingly rude. Besides, everyone knew what the members of Congress were voting for, the retrospective lies of cowardly and calculating politicans to the contrary notwithstanding.

And now, even though a few Democrats make meaningless noises about the necessity for "goals" or "benchmarks" in Iraq -- requests that the administration will fulfill whenever and however they damned well feel like it -- almost all the Democrats say as one that we must "stay the course," that we cannot "cut and run," and similar gutter phrases which insult anyone of modest intelligence. After all, if they called for a withdrawal of our troops, they would be accused of being "unpatriotic" and of "not supporting the troops." [Added 1/29/06: I cannot help but observe that the treatment accorded Murtha proves this observation true beyond all dispute.] God forbid that even one Democrat should put the honor and decency of the country he swore to serve above his own political survival. On top of this, the Democrats happily vote for every appropriations bill for Bush's catastrophic misadventure, even when an atrocity like the Real ID Act is buried in its bowels. The Senate supported that one without even one vote of opposition. Miserable, contemptible bastards.

More recently, we had Durbin's craven collapse when the pressure became too much for him -- even though the "outrage" was completely phony, carefully orchestrated, and based on a profound misrepresentation of what Durbin in fact had said. But today's bit of news seals the Democrats' collective fate as far as I am concerned: they all deserve to reside in the same hell that the Bush administration and its most devoted supporters should inhabit for the rest of time.

Our news item concerns one Alberto Gonzales. As you may have heard, Mr. Gonzales was confirmed as the Attorney General of these United States only a few months ago -- despite certain monumental objections to his suitability for that high office which would have sufficed to consign him to a lifetime of cleaning exceedingly filthy toilets in a more civilized age. Some brief background is needed before we get to the Democrats' final announcement of their surrender of all moral authority to the Republicans.

I could have excerpted many similar articles to make the following overall point, but for reasons that will become apparent, this article by Marguerite Feitlowitz is especially appropriate. Here are a few key passages:
It seems surreal: The president's nominee for the highest legal position in the land is a proponent of torture. In his notorious Jan. 25, 2002, memorandum to Bush, Alberto Gonzales clearly fancies himself a shrewd thinker, a smooth operator when it comes to finessing the inevitable outrage of our allies when they learn that we have violated the Geneva Conventions. His suggestion for rebuttal to, among others, Secretary of State Colin Powell, who argued that the Conventions applied to the Taliban and al-Qaida? "First, some of the language [of the Conventions] is undefined (it prohibits, for example, 'outrages upon personal dignity' and 'inhuman treatment')." Are personal dignity and inhumane treatment really so mysterious? So fungible?

The universal horror elicited by the photos of Abu Ghraib attests to the innate human ability to recognize humiliation, degradation and abuse. As we saw in those photos, young soldiers -- acting in accordance with the climate established high up in the chain of command -- displayed, mocked and toyed with the genitals of prisoners who had also been beaten up, deprived of sleep, chained, hooded and made to stand for hours on one leg on elevated boxes lest they fall into the gaping jaws of trained attack dogs. According to Gonzales' reasoning, none of these practices constitute torture unless they result in years of protracted suffering or "organ failure." In other words, only if a prisoner dies, or almost dies, can one know if one is actually committing torture.

I spent nearly seven years interviewing survivors of the torture centers of Argentina's "dirty war" (1976-83): relatives of desaparecidos ("disappeared"), human rights experts and activists, peasants and labor leaders -- in short, three generations of Argentines from all walks of life whose families were torn apart by the dictatorship. Torture is a crime that never ends: It is written on the body, inscribed in the mind and seared into the soul. Neither individuals nor regimes nor societies survive unscathed. The secrets and shame, lies, guilt and corruption last for generations -- censoring rational thought, inhibiting democratic impulses, hobbling democratic institutions.

Democracy relies on trust, on a social compact. Torture violates every precept, every moral value, associated with democracy, a form of governance the Bush administration purports to cherish. Yet the growing evidence of the U.S. government's policies on torture directly threatens our ability to defend basic human rights, and to promote democracy, both at home and abroad.


Gonzales in his memo asserts (as though it weren't an old, long-disproved chestnut): "The nature of the new war places a high premium on ... the ability to quickly obtain information from captured terrorists ... in order to avoid further atrocities against American civilians." Yet reliable information is rarely gotten through torture: Prisoners die, pass out, become incoherent or are simply too traumatized to talk. My own research, and that of other experts, documents that the vast majority of those subjected to torture know nothing of any military value. The idea that a terrorist attack can be thwarted in the nick of time in the torture chamber is more a daydream of perverse "heroism" than sound military or intelligence policy.

Torture does not make us safer or more secure. (We need only read the headlines.) Torture defiles the perpetrators. (Look again at the photos of our criminal young soldiers at Abu Ghraib.) Regimes that torture send out the message that a penchant for brutality is a valuable skill set, a ticket for advancement.

Alberto Gonzales has paved the way of his own advancement with memos that are intellectually slovenly, that impute definitive powers to the executive, and whose attempts at shirking the basic moral precepts of international humanitarian law are not very skillful. If he is confirmed as attorney general, our nation will be shamed, shunned and endangered.
In addition to her work with survivors of torture, I selected Feitlowitz's article because she cites an article that I have previously excerpted at length: Darius Rejali's lengthy examination of why torture is profoundly wrong and deeply destructive from every perspective. My earlier entry has a much longer discussion of these issues, but permit me to remind you of just the opening of Rejali's two-part article:
Few things give a rush quite like having unlimited power over another human being. A sure sign the rush is coming is pasty saliva and a strange taste in one's mouth, according to a French soldier attached to a torture unit in Algeria. That powerful rush can be seen on the faces of some of the soldiers at Abu Ghraib, a rush that undoubtedly changed them forever. The history of slavery tells us that one can't feel such a rush without being corrupted by it. And the history of modern torture tells us that governments can't license this corruption -- even in the cause of spreading democracy -- without reducing the quality of their intelligence, compromising their allies and damaging their military and bureaucratic capabilities.

The abuse and torture at Abu Ghraib prison were originally blamed on a few American soldiers. Various investigations into the exact chain of command are underway, but they already point to policy decisions made at the highest levels of the U.S. government. Indeed, the recently revealed memos written by Justice Department lawyers in August 2002, at the request of the CIA and the White House, concerning treatment of al-Qaida suspects at Guantanamo Bay, Cuba, and by Pentagon lawyers in March 2003 (in which it was argued that the president and those he has empowered to conduct torture of foreign prisoners are immune from prosecution under international law) are evidence that the government was seeking ways to legally circumvent the Geneva Conventions. "The question put to lawyers was how the president and the others could commit war crimes and get away with it" is how Anne Applebaum put it in the Washington Post Wednesday.
And it was Alberto Gonzales who was centrally responsible for providing the means and the legal "cover" for "getting away with" war crimes. This is the man who is now Attorney General of the United States.

In recent days, Gonzales' name has been floated as a possible nominee to the Supreme Court. On his record and with regard to this issue most of all, that Gonzales should be considered for longer than it can take to utter his name is a deeply disturbing sign of the level of barbarity and lawlessness to which we have already sunk. Moreover, Bush & Co. are engaged in what appears to be a very skillful game -- and I have thus far only come across one commentator who seems to recognize that game for what it is. In discussing the "perception game" that the Bush administration is playing, Tim Grieve writes:
Does this sort of perception game matter? Of course it does. Just ask yourself this: How is it that, over the last few days, you've found yourself wondering whether Alberto Gonzales would be such a bad justice after all?

The White House and the Republican leaders understand the game, and they're usually pretty good at playing it. So somehow, at the very moment that the president himself speaks out against "special interest groups" on "the extremes," the New York Times finds itself the recipient of leaks from this series of conference calls between Washington Republicans and leaders of the religious right. The press and the blogs will play up the notion that there's a fight between Bush and his base over O'Connor['s] replacement, but we're betting that's exactly the story line the White House wants to have out there right now. Given the constant communication between Bush administration officials and leaders on the religious right, we can assume that, if the White House wanted to pass along a request to cool the rhetoric, it could have done so without a sea of leaks to the New York Times, a statement from the president and on-the-record quote from Bill Frist's chief of staff, who told the Times that all the "extremism of language, if there is to be any, should be demonstrably on the other side. The hysteria and the foaming at the mouth ought to come from the left."

Some of the usual foamers are bristling at the request -- or, at least, making a good show of bristling in order to help Bush achieve the separation from the right he'll need to sell the kind of nominee they want on the bench. When Gary Bauer tells the Times that the administration "shouldn't be reluctant to talk about the values we hope the nominee will embrace," it's all part of the stage show, and guys like Bauer -- knowingly or not -- are just playing their roles.
And Harry Reid is perfectly happy to play his own part in the Republicans' game. I am deeply sorry to say that he probably isn't clever enough to even begin to realize how big a sucker he's being played for:
Senate Democratic Leader Harry Reid on Wednesday pronounced Attorney General Alberto Gonzales qualified to sit on the Supreme Court, but added, "I don't know if he'd have an easy way through" Senate confirmation.Reid also chided conservatives for criticizing Gonzales while Bush was overseas. "I think it's too bad the president has to respond in Denmark about statements from the far right," he said. "People here have gone a little too far."

Gonzales was confirmed as attorney general by a vote of 60-36 earlier this year as Republicans overrode Democratic critics who said he had helped formulate White House policies that led to torture of prisoners held overseas as part of the war on terror.

"Alberto Gonzales is qualified. He's attorney general of the United States and a former Texas judge," Reid said. "But having said that he's qualified, I don't know if he'd have an easy way through."

Republicans have a 55-44 majority in the Senate, with one Democratic-leaning independent. Barring a filibuster, a unified GOP would have enough votes to confirm Bush's selection to the court.
I note that Reid and 35 other Democratic Senators voted against Gonzales' confirmation as Attorney General. But despite that fact, Reid now pronounces Gonzales "qualified" for the highest court in the land. I'll make any Bush supporters who might wander by happy, and employ a Nazi comparison which will thus allow them to disregard any and all facts and arguments that call their prefabricated beliefs into question: one may properly call Gonzales "qualified" for any public office at this point in the same manner one might have said that judges in the Third Reich were "qualified" to hold their positions -- simply because they had been judges before. Aside from the much more significant and compelling moral and legal considerations, this gives circular reasoning a bad name.

And Reid can't keep himself from getting in his cheap and pointless little dig at the religious right, thus playing right into what Grieve probably correctly identifies as the Bush propagandists' game -- and Reid then tries to leave himself a tiny bit of wiggle room by saying that he doesn't know if Gonzales would have "an easy way through." Such inspiring moral leadership! It makes you want to leap to the barricades in defense of civilization and basic decency, doesn't it?

Note to Senator Reid and any others who might be severely brain-damaged at this point: you said Gonzales was "qualified." You gave the battle away. Further doubts or qualifications don't matter. Game, set and match to the Bushies.

If we are on our way into hell in this country -- and we may well be -- the Democrats will have helped to grease the path, every damnable inch of it. Let me be clear: in our nominal two-party system, which today is actually a one-party system devoted solely to expanding government, with fights only over details and who gets the biggest part of the spoils and who has the most power, the Democrats are still the only potential source of opposition at the moment. So I write these admittedly very angry essays with a purpose. But while my tone may be deeply angry, I obviously think that the facts support my judgments. And the Democrats are proving themselves to be almost as despicable as the Republicans. I include the "almost" simply because the Democrats are not the initiators of the most barbaric acts perpetrated by the Bush administration. But acceding to such acts and granting them one's moral sanction is almost as bad -- and from one perspective, it is even worse. The Democrats often like to portray themselves as being more concerned with what are generally regarded as the virtues and values of a democratic republic such as ours. But their continued, unending surrender to the Bush forces continue to give the lie to such pretenses.

But my purpose is the simple, obvious one: for anyone who might read my entries on this and related subjects, I am simply trying TO WAKE THE DEMOCRATS THE HELL UP. What in God's name will it take to get the Democrats finally to show some resolve, some determination, and a willingness to put up a meaningful battle about issues of transcendent importance?

As Margaret Feitlowitz says with complete justification, our nation has already been "shamed, shunned and endangered" by the confirmation of Gonzales as Attorney General. If the Democrats offer no resistance to Gonzales joining the Supreme Court should Bush nominate him -- significant resistance and for the right reasons, mind you, not their standard "token" objections -- there will be no hell wretched or cruel enough for them.

I well realize they probably would not win. But on those occasions when you are confronted by monstrous inhumanity and by an action that would be the equivalent of a once-great nation spitting in its own face and throwing its own founding principles into the mud before the entire world, you must say "No" -- even if that is all you can do, and even if you know that you will still lose.

If enough people said "No," we might still avoid the fate that seems more inevitable every day. The famous and now cliched statement is fully applicable here: "The only thing necessary for the triumph of evil is for good men to do nothing." Today, the Democrats do nothing, or as close to nothing as humanly possible. Because the Democrats still provide the illusion of opposition -- but only an illusion, without any substance or meaning behind it -- they allow people to convince themselves that we actually have had a debate that mattered. Of course, we never have such a debate any longer: we didn't have one about the invasion of Iraq, we are not having one now about the occupation of Iraq, and it appears that we may well not have one about the next Supreme Court nominee. But the fact that people can pretend that we have deliberated about these momentous decisions is an especially dangerous lie -- a lie made possible by the Democrats' performance.

If the United States should finally end up in the dustbin of discarded, decayed, corrupt civilizations, future historians should not wonder why. This is why: we turned our backs on what we had once stood for when we were sufficiently scared, when it seemed "expedient" to adopt the methods of those we said were our enemies, and when standing for justice, rights, and the dignity and worth of the single, lonely individual mattered the most -- and when the future of the world possibly hung in the balance.

And almost no one in public life had the courage to say that single word and mean it, even to his last breath if that was what this uniquely important battle demanded:


Related Essays:

On Torture (multi-part essay)

Walking into the Iran Trap, I

Walking into the Iran Trap, II

The Waiting Game