Don’t Ask, Don’t Tell for the Rest of Us


That was Pres. Clinton’s compromise on the issue of gays in the military.  Liberal principles say sexual orientation should be irrelevant to military service.  The Pentagon said the idea of poofters in the barracks gave them the heebie-jeebies.  So Clinton’s compromise was to continue the ban on gays in the military, but with the added directive, “Let’s just not talk about it, mmkay?”

Pres. Obama is repeating that story when it comes to Gitmo, torture, and a good many other aspects of Bush/Cheney cowardice: let’s continue their constitutionally outrageous policies, but just not talk about it.

As far as I can tell, Cheney was right in his speech today that Obama, despite having signed an order forbidding torture, also reserved the “right” to order it if he deems the situation sufficiently dire.  When pressed on the question after Cheney’s speech, Obama spokespeople studiously avoided answering it.  So basically Obama’s policy is: very publicly say we forbid torture, very quietly call backsies.

Pres. Obama, of course, has no such “right” to reserve.  Nor did Pres. Bush.  Nor does any president.  The very idea is constitutionally abhorrent.

Pres. Obama can’t even forbid torture.  He has no authority on the topic, whatsoever.  American law has pronounced on the subject.  That’s it.  End of story.  All any president can do is faithfully execute that law.

Unfortunately, having had one president both vociferously claim a right to torture, and vigorously exercise it, and having had multiple congresses lay down and show their belly in response, and now a second president, of the other party, claim exactly the same right, however quietly, that’s no longer true, because the constitutional restraints on the executive have been removed.

That’s how our system works.  We like to think the mere fact that there is a piece of paper called “The Constitution” means all that stuff in it is actually guaranteed.  It isn’t.  No less a constitutional scholar than James Madison knew this perfectly well and said so.  Rights and limits are guaranteed only so long and so far as they are actually observed, every single day and by every generation. The day a right or limit stops being actually observed is the day it ceases to exist, constitution or no constitution.

So when the constitutional limits on the executive are flouted and nobody does anything about it, those provisions of the constitution cease to exist.  Ben Franklin, asked by a Philadelphian what the convention had produced, famously answered, “A republic, if we can keep it.”

We can’t.  We didn’t.

Thanks first to Pres. Bush (and Cheney), and now to Pres. Obama, the president of the United States can snatch any person, including American citizens, off the streets, anywhere, anytime, imprison them indefinitely, in secret and without recourse, and torture them, and nobody can do a damn thing about it.

Such presidential behavior is no longer unconstitutional.  Our two major parties and all 3 branches of government have agreed to this arrangement.  Those provisions of the constitution that limited the power of the executive have been emended by mutual consent.  They’re vestigial organs.  Dead letters.  For you law students in the audience, dicta.

So if your name ever turns up on the wrong list by mistake, God help you.  Nobody else can.

The moment any president ever suspects you of something dangerous, you cease to have legal rights.  At all.  He or she can do anything s/he wants to you, short of killing you (for now, at least).  There are no limits on his or her power over you.  None.  You get no phone call, no presumption of innocence, and no lawyer, who would be superfluous, anyway, since you’ll never see the inside of any courtroom or get to present your side of the story to a jury of your peers or anybody else.  You’ll simply go away.  Silently.  Secretly.

Don’t get me wrong.  I’m not saying Pres. Obama or the president after him or the president after that is going to start disappearing people en masse.  I’m saying — presidents Bush and Obama are saying, the congress, and, with some notable exceptions, the courts are saying — any president could disappear as many people as s/he sees fit.  As the Framers understood, once such power exists, it’s just a matter of time before it is exercised; that’s why they did not give anybody that kind of power.

Besides, if you’re one of the unlucky ones who does get disappeared, the fact that it’s not happening en masse is going to be cold comfort.

But let’s not talk about it.  There.  You feel better already, right?

Update (5/22/09): TPM picks up on the same Obama dodge.


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9 Responses to “Don’t Ask, Don’t Tell for the Rest of Us”

  1. alsturgeon Says:

    First of all, let me say that I like Dicta. Good football coach.

    Now, to all the good stuff you wrote. It has been interesting as a first year law student to see how often the phrase “as justice so requires” pops up. There is more latitude in the law than I imagined. The permission to break rules to do what is “right” for people is often put into the rules; thus, of course, not making it against the rules at all.

    I say that to say this (warning: religious discussion alert): I think Jesus was big on the break-the-rules-standing-up-for-people idea. You may get killed for it, but hey, at least you died for something worthwhile.

    So… me thinks there’s something to be said for breaking/ignoring the rules. But I think there’s an important difference between breaking rules to help a person vs. breaking rules to hurt someone. (In fact, back to the Jesus thing, that’s the whole drama – Jesus did the former, his opponents did the latter.)

    And the latter is the way the world has always worked.

    Anyway… I think the new Gitmo/Torture discussion stems from the idea that “justice so requires” this unprecedented policy – justice requires taking away (alleged) terrorists’ rights for the good of people. But my take is that this takes away the unique nature of the American project and shifts our nation toward being like every other powerful government in the history of the world.

    In short, we can HURT you when we want, regardless of the rules.

    • urbino Says:

      Here’s the problem with saying it’s okay to break the rules to help people: who gets to define “help”?

      Cheney, panicked paranoid that he is, seems to genuinely think his subversion of the constitution helped people. Does that mean it’s okay? Is it okay only if most people agree that it helped people? What if most people agree with him, but experts in the field say he’s clearly wrong? Or vice versa?

      Also, I don’t think Jesus is an apt comparison. He didn’t break the rules to help people. He didn’t even rewrite the rules to help people. He did away with rules-based thinking, with all its legalistic parsing and loopholes.

      That’s great for religion. For a political system, though, it would suck, given the realities you mentioned.

      People with great power have to have very clear rules to hedge them in, and they can’t be allowed to break those rules at will just because they think it would be a good idea. People with great power always think it would help people if the rules that applied to everyone else didn’t apply to them.

      If the rules need to be changed because circumstances have changed, then the rules can be changed — but not just on the say-so of the person who stands to benefit or gain power by it.

      Justice so requires.

      • alsturgeon Says:

        Let me try it this way: I’ve got no problems with the presidential power to pardon (well, the concept at least). But I don’t think it warrants a negative counterpart.

        Don’t get me wrong, I’m a big fan of the Rule of Law. I just don’t have problems when acts of mercy are exercised within. Torture, however, far from qualifies.

        • urbino Says:

          According to at least one conservative report — at NRO, if memory serves — torturing Muslims is an act of mercy.

          The logic goes: Islam forbids Muslims from aiding its enemies, but only until they are pressed beyond their own personal ability to resist; many Gitmo detainees wanted to ‘fess up, but felt trapped by their religion; torture freed them from those constraints.

          And the guy wasn’t joking. Not intentionally, anyway.

          So once again, you’re left with a question: who gets to define “mercy”? When people are willing to define it the way this guy did, and a not-inconsequential percentage of the public is willing to support such a definition, I’m not at all comfortable with a mercy exception.

          What I am comfortable with is something like run-of-the-mill prosecutorial discretion. Mercy is available, but how it can be shown is sharply defined. If a prosecutor feels mercy is appropriate to a case, s/he can decide not to prosecute it even though s/he has sufficient evidence, or to prosecute for a lesser offense, or to prosecute and recommend leniency in sentencing.

          But those are their only options, and those options exist within an extremely sharply defined system of offenses and penalties. A prosecutor can’t just make a tendentious argument like the one above and decide to send a suspect to Egypt for torture under the guise of mercy.

  2. DeJon05 Says:

    ISTM, that the last two presidential administrations have demonstrated a unique dynamic of human nature. That people are often willing to strive for the right thing (e.g. preserving the inalienably rights of every human being), but want an ace in the hole that says if trampling those most basic of liberties will potentially bring us comfort should we face our worst fears… we want to be able to do that.

    It is this impetus of fear that I don’t like.

    I’ve heard of people refusing to honor the written law. When the driving force for that refusal is courage we get actions like the Freedom Riders of the Civil Rights Movement or India’s methods for breaking from British rule. When those actions are based on fear… well that just strikes me as one step short of hedonistic depravity, or a might-makes-right mentality.

    One’s motivation for breaking the law can come from one’s strength or weakness.

    Dick Cheney’s views are fundamentally rooted in fear. His own fear coupled with his unrivaled fundamentalist beliefs and certainty of his own righteousness motivate him to be so vocal with his calls for action. All the while forgetting that the only reason he wants what he wants is because he is scared. And he corrals every citizens own fears to bolster the country in support of what he wants. He is both ruled by his own fear and manipulating ours for his own purposes.

    The only thing that may be worse is one he attempts to act out of both fear and courage. President Obama seems to want it both ways. One can not be motivated by courage and strength, and at the same time reserved the right to play the trump card of fear if necessary. This makes the initial of courage hollow and meaningless.

    • urbino Says:

      While courage vs. fear might be the difference in motivation, I don’t think it’s what makes us view the Civil Rights marchers differently from Cheney.

      What, to me, distinguishes the Civil Rights marchers from Cheney is: a) they were acting from a position of extreme powerlessness, not extreme power, and b) even more importantly, they acknowledged and took responsibility for the illegality of their actions.

      The Civil Rights marchers never denied that their marches were illegal, which they frequently were. They never claimed they had the right to disregard the law, at will. They did what they did, and if they got arrested for it, they went to jail. Their claim wasn’t that they were above the law; it was that the law was wrong. Since blacks were excluded from political participation, the only way to make their case was to very publicly violate the law, accept the consequences, and hope the American people would see the injustice and demand the laws be changed.

      Cheney’s actions could not be more different. He does claim the executive is above the law. He does claim the law simply didn’t apply to him as a top member of that branch. Actually, even that’s not quite strong enough: he claimed no law ever could apply to the executive on this subject (and a good many others). He’s not now and never was in a position of being excluded from political participation; quite the contrary.

      So unlike the Civil Rights marchers, he didn’t (and still doesn’t) acknowledge the illegality of his actions, he doesn’t accept responsibility for having broken the law, and he doesn’t acknowledge that somebody has the legitimate authority to punish him for it.

      To the extent he’s now appealing to the American people, it’s not to get them to demand the laws be changed. It’s to get them to support his claim that no law can apply.

      They acted in public and took responsibility. He acted in secret and ducked responsibility.

      So, to return to your point, I agree insofar as this is why I keep using the word “cowardice” to describe his behavior. But his cowardice isn’t the most salient fact that distinguishes his rule-breaking from that of the Civil Rights marchers. The acknowledgment of the rule of law is. The Civil Rights marchers didn’t just acknowledge it, they appealed to it. Cheney flatly, explicitly denies it.

  3. DeJon05 Says:

    David Brooks thinks Cheney is more mad at the Bush Admin than the new one.

    • urbino Says:

      I think there’s something to Brooks’s point about the policy shifts from the first Bush term to the second. However, even the ascendant Rice-Hadley faction never backed off their claims to be above the law.

      They changed their behavior because they decided the most extreme parts of Cheneyism were bad policy, not because they recognized almost the whole of Cheneyism was illegal.

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