Just Above Sunset
January 15, 2006 - He Who Defines the Terms Controls the Argument













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Of course, if you want to win an argument, you know your winning it depends on both sides agreeing on just what you're arguing about, and on your controlling just what that is - the terms of the argument. Your opponent says there's a problem with X and points out there is only one really effective answer to that problem, at it's his answer. You reply, graciously, that may be so, but really, if you look at this X thing, well, that's not really the problem - X is only a symptom of a the real problem, which is Y, and the only really effective answer to the Y problem is your answer. Defining the terms of the argument actually is the argument, or often is.

Concerning the ongoing national discussion, or argument, or quarrel - or whatever it is - regarding the News York Times revealing the president had instructed the National Security Agency to disregard the law and listen in on, or at least track the contents of, millions of phone calls each day, and scan millions of emails, to see what's up, we have the same problem in defining terms.

The 1978 FISA law is clear, and so is the is Fourth Amendment. Citizens, given that part of the constitution, have the right to a sort of privacy - the government cannot "search" to find out things about them without probable cause and a warrant issued by a judge who decides there is, actually, probable cause, as a crime may have been committed, or one is being committed, or one is being planned. The FISA law just fills in the details for circumstances involving "foreign intelligence" involving American citizens - it lays out procedures and rules.

The president told NSA to disregard those procedures and rules, and implicitly to disregard that Fourth Amendment detail of the constitution. More than a dozen of the NSA folks leaked this to the Times, and the Times, after sitting on the story for a year, reported it. The president asked them, a few weeks before they did, not to run the story. They did anyway, but left out technical details they were told would aid "the enemy." The president then explained, publicly, that yes, he had ordered this effort, outside the law, and there should be an investigation - those who leaked the information should be exposed and prosecuted. And he intended to continue this effort - letting the Attorney General and others explain that any president, as commander-in-chief when the country is at war, has the authority to do this sort of thing when any particular law conflicts with his constitutional responsibility to direct the war, and secondly, this president had specific authority to do so because the congress authorized him to "do what's necessary" to go after terrorists and those nations who support them. So there!

What followed was a disagreement on what this is about. The more hysterical of the civil libertarians did the expected - "Oh my God, this president is spying on all American citizens - it's a 1984 Big Brother move and we now live in a Stalinist America with our own KGB keeping files on anyone who disagrees with the leader!"

The less hysterical of these folks note the government does have a right to "spy" on its citizens, and always has had that right - that's just part of law enforcement - but the right to do this stuff is based on showing a judge you have some probable cause and getting a warrant, and bypassing that is a bit disturbing. Some wonder if, without "judicial oversight," such a program might be used to create an enemies list of the Nixon sort, to "get" those who make trouble for the administration by disagreeing too loudly and too embarrassingly - and maybe this is just too tempting for any administration to resist.

Then there's the-world-has-changed group saying this is really about how, since September 11, 2001, we really do have to toss out old ways of thinking - we don't have the luxury to worry about privacy rights these days.

Closely related to that is the "things are different in wartime" crowd. But are we at war? The Korean and Vietnam Wars were called that popularly, but the first was officially our participating in a UN police action. We were, on the record, just supporting the UN there. It was not a war - not at all. It was our supporting a UN action. It just looked like a war. Regarding Vietnam, what the Gulf of Tonkin Resolution was is still a matter for some debate. The least inaccurate way to explain what it was would be to say it was a resolution ceding the authority to wage war to the executive branch, as the legislative branch didn't want to decide or declare anything - in short, it was tossing the constitutional authority and prerogative to declare and wage war down the street to the White House. "Yeah, it's our job, but you decide." All "war powers resolutions" since are an admission that the constitution doesn't work in the modern world - one man in the White House should decide these things. It's quicker, more efficient, and, if you're in congress, you don't catch crap when things go badly. Anyway, you're not given all the information, or you're lied to, so just how can you decide? Let the executive do what it will. What's the point in pressing the issue? The last official declaration of war was with WWII, after Pearl Harbor. There has been, since then, no official war anywhere in which we have participated. None at all. But we toss the word around - the War on Drugs, the War on Poverty, the War on Christmas. The word "war" doesn't mean anything very specific now - it is now purely metaphor. Is it any wonder this is confusing? The congress is useless. This president says we're at war. Not quite so - but so. Close enough for government work. But are things different even when at war? Can a president when at war ignore pesky laws? Truman tried to nationalize the steel industry and thus end a strike threat when we were "at war" in Korea, and the Supreme Court slapped him down.

What can a president do and not do? Jean Schmidt, the newly elected congresswoman from Ohio - the one who called a fellow house member and decorated ex-Marine a coward on the house floor - says we're at war and when you're at war you just have to suspend the constitution. We've never officially done that, but maybe she's onto something.

Other takes on this include going after the Times for treason (see this) - the Times was aiding and abetting the enemy by revealing that we were tracking their calls and emails. The bad guys didn't know? By revealing there was this NSA, and there was this FISA law? They didn't know? They didn't think there'd be warrants? Are they cunning, clever, evil monsters, or are they bumbling idiots ("Don't worry, Ahmed, I've read the American newspapers and no one is listing in on us.") - which is it? It's hard to see what aid the Times provided the bad guys. This seems to be about following our own internal rules.

Is this about the rules? If it is true that the corporate owners of the phone, wireless and web hubs have given the government access to all the data flow to look for patterns and key words, is this about what sort of law we should have to assure monitoring isn't abused for political or even financial advantage? Is this about how antiquated the FISA law is now? But this attorney general said the administration did not try to change the law they decided not to go to congress when told they'd not get changes, and because, too, they'd have to reveal too much about the technology. This is interesting. What law should we have with all the new data mining technology available these days? Should it be used, and if so, under what rules?

Finally, there are two more ways to define this argument. For the Cult of Bush there's the "you have to trust the Man." He says it's necessary, so it is. He says he'd never abuse the power he assumed, so he wouldn't. And from the "whatever" crowd there's the argument this doesn't matter - if you have nothing to hide there's no problem.

Of course there are subsets to all of these positions, and there is the superset - this is about a small group of people with a pliant figurehead taking over the country, or it isn't.

We'll see who gets to define the terms here. And that is not yet clear.

But this is not the only example of such maneuvering, as we see in this regarding that fellow congressman Jean Schmidt called a coward –

 

Murtha was criticized during a Pentagon news conference Thursday, when the chairman of the joint chiefs said Murtha's weekend criticism was "damaging" troop recruitment efforts.

In a statement released by Murtha, the decorated Marine veteran responded that the real damage to recruitment comes from prolonged deployments, inadequate equipment, and the "lack of any connection between Iraq and the brutal attacks of 9/11."

 

As Oliver Willis explains what happened there - "Reject the premise of the attack, repeat with your original point. Bang. Murthanized."

The hearings on whether Judge Alito should become a member of the Supreme Court are underway. Is that really all about God? The Wall Street Journal notes this - three Christian ministers claim to have snuck into a Senate hearing room in order to anoint the chairs that will be used for Alito's confirmation hearing. They used oil. Doesn't that stain?

Is public health really about morality and evangelical Christian values?

 

That depends on who frames the argument. See this

 

The Society of Adolescent Medicine, in one of the most exhaustive reviews to date of government-funded abstinence-only programs, has rejected current administration policy that promotes abstinence as the only sexual health prevention strategy for young people in the United States and abroad.

"We believe that current federal abstinence-only-until-marriage policy is ethically problematic, as it excludes accurate information about contraception, misinforms by overemphasizing or misstating the risks of contraception, and fails to require the use of scientifically accurate information while promoting approaches of questionable value," the report concludes.

"Based on our review of the evaluations of specific abstinence-only curricula and research on virginity pledges, user failure with abstinence appears to be very high. Thus, although theoretically completely effective in preventing pregnancy, in actual practice the efficacy of abstinence-only interventions may approach zero."

 

Let's see - "theoretically completely effective" but of "zero value" and "ethically problematic." Gee, that's kind of like the whole effort in Iraq, with bad science thrown in as a bonus.

And then there is that war. There is this argument about winning it here, but don't click on the link. It's complicated, dense, and confusing. Duncan Black straightens it out here

 

... Bush and his defenders have defined leaving Iraq as losing. Period. It's one reason crazy people like me think that may having some sort of arbitrary timetable or rough events-triggered withdrawal is a good idea - because there will never be some magical day when the Iraq security situation suddenly improves. There will never be a day when George Bush can wake up in the morning and decide, again, "Mission Accomplished!" without some arbitrary guidelines for when that is. There will never be a day when George Bush can credibly say "things are better today than yesterday" and therefore we can start to leave.

We will never leave Iraq while George Bush is president, because they've decided that leaving is losing.

 

Yep, defining terms matters, and who gets to define the terms matters too.

Black also links to Zbigniew Brzezinski in the Washington Post with this

 

... "Victory or defeat" is, in fact, a false strategic choice. In using this formulation, the president would have the American people believe that their only options are either "hang in and win" or "quit and lose." But the real, practical choice is this: "persist but not win" or "desist but not lose."

Victory, as defined by the administration and its supporters - i.e., a stable and secular democracy in a unified Iraqi state, with the insurgency crushed by the American military assisted by a disciplined, U.S.-trained Iraqi national army - is unlikely. The U.S. force required to achieve it would have to be significantly larger than the present one, and the Iraqi support for a U.S.-led counterinsurgency would have to be more motivated. The current U.S. forces (soon to be reduced) are not large enough to crush the anti-American insurgency or stop the sectarian Sunni-Shiite strife. Both problems continue to percolate under an inconclusive but increasingly hated foreign occupation.

... The real choice that needs to be faced is between:

An acceptance of the complex post-Hussein Iraqi realities through a relatively prompt military disengagement - which would include a period of transitional and initially even intensified political strife as the dust settled and as authentic Iraqi majorities fashioned their own political arrangements.

An inconclusive but prolonged military occupation lasting for years while an elusive goal is pursued.

 

But Cheney just said it was simple. Victory or defeat.

People are, however, asking him (and the administration) to define the terms. What do the terms mean? Everyone knows? No, they don't.

We'll define them for you? Folks are understandably wary.

What's going on?

As Yul Brenner, in the role of the King of Siam in The King and I, was wont to say - "Is a puzzlement."

And how will this be spun, with carefully defined terms? From the Los Angeles Times, another scandal

 

In a case that echoes the Jack Abramoff influence-peddling scandal, two Northern California Republican congressmen used their official positions to try to stop a federal investigation of a wealthy Texas businessman who provided them with political contributions. Reps. John T. Doolittle and Richard W. Pombo joined forces with former House Majority Leader Tom DeLay of Texas to oppose an investigation by federal banking regulators into the affairs of Houston millionaire Charles Hurwitz.

 

There's a bit of discussion here, but how will you spin this? What happened may have cost taxpayers more than a billion dollars, but what about loyalty to your friend and contributor? You block the investigation. People understand friendship and loyalty do really matter. That may not fly.

Ah, sometimes you just explain the rules don't apply to you, as in this from Ron Hutcheson and James Kuhnhenn of Knight-Ridder –

 

President Bush agreed with great fanfare last month to accept a ban on torture, but he later quietly reserved the right to ignore it, even as he signed it into law.

Acting from the seclusion of his Texas ranch at the start of New Year's weekend, Bush said he would interpret the new law in keeping with his expansive view of presidential power. He did it by issuing a bill-signing statement - a little-noticed device that has become a favorite tool of presidential power in the Bush White House.

In fact, Bush has used signing statements to reject, revise or put his spin on more than 500 legislative provisions. Experts say he has been far more aggressive than any previous president in using the statements to claim sweeping executive power - and not just on national security issues.

"It's nothing short of breath-taking," said Phillip Cooper, a professor of public administration at Portland State University. "In every case, the White House has interpreted presidential authority as broadly as possible, interpreted legislative authority as narrowly as possible, and pre-empted the judiciary."

... The White House says its authority stems from the Constitution, but dissenters say that view ignores the Constitution's careful balance of powers between branches of government.

"We know the textbook story of how government works. Essentially what this has done is attempt to upset that," said Christopher Kelley, a presidential scholar at Miami University in Oxford, Ohio, who generally shares Bush's expansive view of executive authority. "These are directives to executive branch agencies saying that whenever something requires interpretation, you should interpret it the way the president wants you to."

... Some members of Congress from both parties also question the legal authority of presidential signing statements.

"He can say whatever he likes, I don't know if that has a whole lot of impact on the statute. Statutes are traditionally a matter of congressional intent," said Sen. Arlen Specter, R-Pa., the chairman of the Senate Judiciary Committee.

In 2003, lawmakers tried to get a handle on Bush's use of signing statements by passing a Justice Department spending bill that required the department to inform Congress whenever the administration decided to ignore a legislative provision on constitutional grounds.

Bush signed the bill, but issued a statement asserting his right to ignore the notification requirement.

 

Ha, ha!
 
It all depends on how you look at it.































 
 
 
 

Copyright 2003, 2004, 2005, 2006 - Alan M. Pavlik
 
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