"THERE IS NO CRACK"

The Democratic leadership’s hesitant response to Russ Feingold’s call to censure Bush is disappointing, but not surprising (as usual, Mr. Joementum outdid his Democratic colleagues with his claim that coming out against the President’s law-breaking and keeping America safe and free are somehow mutually exclusive). Same goes for the Republican leadership’s ostensible apoplexy. The Republican reaction is more memorable though. As easy as it is these days to become numb to flag-waiving and treason-baiting in response to criticism and defense of the indefensible, Bill Frist’s words are worth remembering:

here we are, the Republican Party, the leadership in the Congress, supporting the President of the United States as Commander in Chief, who is out there fighting al Qaeda and the Taliban and Osama bin Laden and the people who have sworn, have sworn to destroy Western civilization and all the families listening to us. And they’re out now attacking, at least today, through this proposed censure vote, out attacking our Commander in Chief…

As I was listening to it, I was hoping deep inside that the leadership in Iran and other people who really have the U.S. not in their best interests, were not listening because of the terrible, terrible signal it sends…the signal that it sends that there is in any way a lack of support for our Commander in Chief, who is leading us with a bold vision in a way that we know is making our homeland safer is wrong. And it sends a perception around the world and, again, that’s why I’m saying as leader at least of the Republican side of this equation, that it’s wrong, because leadership around the world of our sworn enemies are going to say, well, now we have a little crack there. There is no crack. The American people are solidly behind this president in conducting this war on terror.

What Frist is suggesting, in no uncertain terms, is that the military strength of this country and the political strength of its President are inseparable. He’s willfully grafting the President onto the nation and the military as parts of a single coherent whole which all Americans are obligated to defend and support against those who would oppose it. Such logic – attack the President, attack America – makes loyal opposition a theoretical impossibility and makes American patriotism and Republican partisanship synonymous. There are names for an ideology that admits no distinction between the leader, the people, the military, and the nation. But it’s so twentieth century.

As Feingold said today:

Even more troubling than the arguments the President has made is what he relies on to make them convincing – the credibility of the office of the President itself. He essentially argues that the American people should trust him simply because of the office he holds. But Presidents don’t serve our country by just asking for trust, they must earn that trust, and they must tell the truth. This President hides behind flawed legal arguments, and even behind the office he holds, but he cannot hide from what he has created: nothing short of a constitutional crisis. The President has violated the law, and Congress must respond.

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ROBERTS’ RULES

Good news: Edith Brown Clement is not, for the moment, a nominee for the Supreme Court.

Bad news: I’m starting to miss her already.

John G. Roberts’ America is not one which does the best traditions of this country proud.

People for the American Way has compiled some of the reasons why. Among the more troubling of his arguments:

School-sponsored prayer at public school graduations poses no church-state problems because students swho don’t like it can just stay home from their graduations.

Congress can ban flag-burning without a free expression problem because bans don’t prohibit the “expressive conduct” of burning the flag – they just remove the flag as a prop with which to do it.

Arresting minors for crimes for which adults are given citations poses no equal protection challenge because minors are more likely to lie.

On choice, Roberts authored a government brief in Rust v. Sullivan that Roe “was wrongly decided and should be overturned.” As for the Lochner litmus test, he dissented from a D.C. Circuit Court case upholding the constitutionality of the Endangered Species Act. And at least in Law School, he apparently took a very broad view of the “takings” clause, opening the door to dangerous judicious activism targeting popular economic regulations which protect the economic security of the American people.

THE WRONG WAY TO HONOR THE 4TH

is to narrow Americans’ constitutional freedoms by amending the first amendment to ban unpopular symbolic speech. It’s disturbing to see the Senate within a few votes of following the House in passing the abysmal “Flag Burning Amendment.” And it’s disappointing to see so many Democrats (Bob Menendez, Sherrod Brown, and Loretta Sanchez among them) joining the pandering parade.

As I said in this piece (also here), crimminalizing flag-burning is a desecration of the flag and of our freedoms. As Hendrik Hertzberg once observed, it’s impossible to burn the flag, though some may choose to burn a flag or two. Trampling the freedoms for which that flag stands, however, is all too feasible.

That’s exactly how we should recognize the criminalization of a symbol based on offense at its content. After all, if the burning of a flag can be rendered illegal on grounds of outrage at the message it signifies, why not images of burning flags? Why not incitement to burn flags? Why not Dick Durbin’s insistence that torture is more befiting a despotic regime than the United States of America? There was a moment in this country’s history before the First Amendment when representatives on the floor of Congress had a constitutional right to free speech unavailable to regular Americans. It would be shameful for us ever to enter a moment after the unamended First Amendment in which the same is the case.

A Flag-Burning Amendment would still be outrageous if flag-burning was an everyday occurence in this country. But it’s worth noting that it isn’t. Not only was the pro-amendment Citizens Flag Alliance only able to document four incidents this year (three of them last month, while the Amendment was under debate and in the news), every single one involved people burning other people’s flags. However one ranks the wrongness of setting the local Public Library’s flag on fire relative to, say, denying healthcare to returning veterans, it’s already illegal.

What’s at issue is this: Living in a society with a robust Bill of Rights means that in some rare instance, some American may exercise the freedom granted under our flag to burn a flag in hopes of dramatizing a divide between a vision for this country and its present reality. The discomfort that’s inspired by a burning flag, or a confederate flag, is a small price to pay for liberty.

The right has been heaping outrage on Senator Durbin for saying this Tuesday night about an FBI account of torture at Guantanamo Bay:

If I read this to you and did not tell you that it was an FBI agent describing what Americans had done to prisoners in their control, you would most certainly believe this must have been done by Nazis, Soviets in their gulags, or some mad regime – Pol Pot or others – that had no concern for human beings. Sadly, this is not the case. This was the action of Americans in the treatment of their prisoners. It is not too late. I hope we will learn from history. I hope we will change course. The President could declare the United States will apply the Geneva Conventions to the war on terrorism. He could declare, as he should that the United States will not, under any circumstances, subject any detainee to torture, or cruel, inhuman, or degrading treatment.

It’s a shame that President Bush, Senator Frist, and the Right-Wing Blogospheric Noise Machine can’t summon the same level of outrage they’ve mustered over Durbin’s comments over the account he read in the paragraph before – or the countless others like it:

On a couple of occasions, I entered interview rooms to find a detainee chained hand and foot in a fetal position to the floor, with no chair, food, or water. Most times they urinated or defecated on themselves, and had been left there for 18-24 hours or more. On one occasion, the air conditioning had been turned down so far and the temperature was so cold in the room, that the barefooted detainee was shaking with cold…On another occasion, the [air conditioner] had been turned off, making the temperature in the unventilated room well over 100 degrees. The detainee was almost unconscious on the floor, with a pile of hair next to him. He had apparently been literally pulling his hair out throughout the night. On another occasion, not only was the temperature unbearably hot, but extremely loud rap music was being played in the room, and had been ssince the day before, with the detainee chained hand and foot in the fetal position on the tile floor.

You won’t find that paragraph, unfortunately, in the news accounts of the latest from the GOP’s manufactured outrage machine. And don’t hold your breath for a word from Bush or Frist this week to condemn the use of starving and freezing as interrogation techniques.

Instead, they’re accusing Senator Durbin of comparing all of America’s servicemen and servicewomen to Nazis, a charge as willfully inaccurate as Frist’s claim that Durbin called Guanatanamo a “death camp” (that’s what happens when you get all of your news from the (Washington Times). While Durbin’s phrasing is awkward, his plain meaning is clearly not that America is a Nazi state but rather that torture is a practice which better befits an oppressive regime than the United States. Leaving people restrained without water in oppressive heat to defecate on themselves, Durbin reminds us, is a violation of the values of this country. The obvious question, then, for Durbin’s critics is this: Do you see leaving people restrained without water in oppressive heat to defecate on themselves as as expression of the values of this country. Only a truly perverse definition of patriotism would demand, when we see unamerican crimes perpetrated under the American flag, that we change our values as a country to justify our behavior rather than the other way around. There’s no need to mention Nazis in order to make this point. But there’s no justification for reading it as a smear of the US as Nazi Germany or men and women in the service as Nazis.

The latter – the accusation that Durbin attacked Americans in the military – is even more insidious than the accusation that he attacked America itself. The implication is that anyone who criticizes a policy military personnel carry out is expressing scorn, distrust, or murderous rage towards every American in the service (this is analagous to the strategy Thomas Frank documents in One Market Under God of dismissing criticisms of business as expressions of elitism towards the American consumer). It’s a strategy we saw in the Presidential debates, as Bush implied that criticism of our Iraq policy showed a lack of faith in our troops in Iraq. It’s a strikingly tendentious rhetorical move and a pox on a discourse we desperately need to be having as a nation.

Most of all, pretending to hear criticism of the policy as an attack on the troops is a show of incredible cowardice. Faced with much-deserved rhetorical volleys, George Bush is essentially dragging American soldiers in front of him as an unwitting buffer between himself and the rest of the American people. In this rhetorical draft, American soldiers are called to act as a symbolic first line of defense against justified outrage over the administration. Never mind the number of those soldiers and their families who share that outrage, or who have no interest in being drafted -voiceless – into ideological warfare on behalf of the chickenhawks and policies which lead to needless death. Critics of torture and critics of war are taking on our leaders, not our troops. That those leaders, rather than defending their choices, make a show of rising to defend the honor of the troops just shows how little shame they have.

Three thoughts after watching the last two West Wing episodes last night:

These were, I have to say, better than the last several have been, and much better than the lowest points of the post-Sorkin era. Still an embarrassing shadow the show’s former brilliance, but I have to say I will miss it over this hiatus. There were even some lines I laughed at. And the actors are still great, especially when they look less like they’re embarassed to have to recite the dialogue they’re being given. Or maybe that was just projection…

Along with all the more substantive faults in the current show, I have to say as a longtime viewer I feel personally snubbed by the current producers’ little sleight of hand which skipped a year of the Bartlett Presidency, which is made all the more irksome by their comments to the press that in focusing the show on Presidential primaries they’re just bowing to the reality that Bartlett only has one year left by the show’s own timeline. False. Bartlett’s presidency started two years before George Bush’s, in 1998. He was re-elected the same week as our awful 2002 elections. So his term ends in 2006, not 2005. Trying to skip a year gives the sense that they don’t think anyone is watching. Which may be true…

Last, more substantive, less self-parodying point: One of the more clever (yes, clever) pieces of last week’s episode was a controversy over a magic trick Penn and Teller perform in the East Room in which they appear to burn a flag wrapped in the Bill of Rights, which is left intact (some of my thoughts on flag burning in general are here. Press and politicians begin demanding to know whether the flag was actually burned or whether it’s still intact. Which begs the question, implied but never stated by the writers: What’s the difference between a symbolic act, and a symbol of a symbolic act? If the one can be banned, why not the other?