"You're Racist!"

I was thinking about this last night while watching coverage of the brouhaha resulting from Glenn Beck's claim that the President "has a deep-seated hatred for white people or the white culture" and is a "racist." Beck's comment is just the latest in what some see as an escalating series of racially-tinged attacks on President Obama, following Lou Dobbs's promotion of the racist birther conspiracy theory and Rush Limbaugh's attempt to foment racial hatred by declaring that Obama's comment on the Gates arrest is "a black president trying to destroy a white policeman." Limbaugh also recently claimed that "white firefighters" were "under assault by agents of Barack Obama" and "now white policemen are under assault."

You don't need to be an expert in American history to cringe at this sort of language. The attempts to paint Obama as "other," to cast a powerful black man as the alien enemy of white culture, and to paint community defenders (police officers and firefighers) as under "assault" from a subversive racial minority all fit comfortably within the legion of tactics historically used by American racists, and in particular, white supremacists. It's no accident that their preferred attack against Obama, a politician known for his admirable and sorely-needed efforts at racial bridge-building, is calling him a "racist." Projection is typical among these people, but in this case they're also conscious that Obama is undermining them. Without stoking cultural grievances and racial resentment, guys like Rush Limbaugh would have no career. In making their millions out of this sort of divisiveness, they've adopted (and taken to the extreme) a practice they used to criticize liberals for: using the charge of racism to silence political opposition.

In his excellent column today, E.J. Dionne, while discussing a slightly different issue, nonetheless nails the point I'm trying to make:

From the time I was in college in the late 1960s and early '70s, I have been incensed at the elitism so often shown by privileged liberals toward the white working class. And I felt this as someone on the left.

I wrote a doctoral dissertation inspired by that concern, and the current controversy led me down memory lane, through college newspaper archives, to see if my recollection of my earlier views matched reality. For what it's worth, here's what I wrote in 1973, the year I graduated from college:

"What is most disturbing about conservative attacks on the student left is that many of the charges were right on the mark. The student left often did come to be characterized by its own forms of elitism and intellectual arrogance. ...

"Even more pernicious and divisive were race issues. It is clear, of course, that black demands for political and economic equality are justified ... (but) the way these issues developed ... served to estrange the working class white from the movement for equality. White workers rebelled because they felt they were being forced to pay an inequitable share of the costs of equality. ... Sadly, whites who protested against being singled out were too often attacked as racists. ... In the end, the losers were those who had the greatest stake in social reform -- white workers, blacks and the student left."

There was (and remains) a frustration among conservatives in the post-Civil Rights era that certain policy discussions with racial elements - crime, welfare, drugs, and education, to name a few - could not be openly and candidly discussed without liberals crying "racism!" A conservative with legitimate concerns about welfare reform, for example, could be (rightly or wrongly) associated with Reagan's reckless blather about "welfare queens" and the racially-tinged associations that went along with it. Of course, actual racism should be condemned whenever it rears its ugly head, but there's no question that worries about being called a racist have had an eerie silencing effect on many conservatives, moderates, and more than a few liberals. In our legitimate effort to stigmatize bias and hatred, we've made it tougher to have frank discussions about important topics. Or so the critique goes. I think it has some merit.

Strange, then - or maybe not so strange - that the most prominent rash accusations of racism today are coming from the right. The simultaneous radicalization and dumbing-down of American conservatism has been almost unbearably ugly to watch. It's become an even bigger concern now that irresponsible charges of racism have been fused with broader attempts to sow racial hatred and divisiveness among Americans. Beck, Limbaugh, Dobbs, and their ilk are playing with fire.

The Most Important Decision

After a few days of avoiding comment on the arrest of Professor Henry Louis Gates, I almost broke down today and offered my thoughts on how distorted, illogical, and ugly the debate has become (I guess we're still not ready for a "national conversation on race," whatever that means).

Then I came across something even more disappointing than the superficial, grandstanding arguments over the issue: the President's choice of Bud Light for his beer/photo-op with Officer Crowley and Professor Gates (talk about compounding your dumb decisions). Jason Zengerle reports on this troubling development:

The Boston Globe had an article today--before news of the Bud Light selection leaked--about how Massachusetts brewers were angling to have their beers served at the get-together, with the idea being that since Gates is a Red Stripe or Bass man and Crowley prefers Blue Moon, maybe Obama could find common ground between the two of them by pouring a beer from their neighborhood. That made sense to me. And, while the local beer I was pulling for was a real long shot (Pretty Things Jack D'Or if you're an inquiring beer snob), you'd think that Sam Adams, or even Harpoon, are big enough national, mainstream brands that Obama could have served them without looking like someone with elite tastes. But I guess Bud Light is a safer call. Still, if Obama is intent on using this whole episode as a "teachable moment," you'd think he could teach Americans to drink something better than Bud Light.

Look, if Obama is worried about repeating the dijon disaster by snobbishly picking a specialty beer (thank God the right is ever-vigilant about crucial issues like the President's choice of condiments and booze), and if he is so concerned about stoking fears about his American-ness that he can't choose a good import beer, can I suggest a staunchly patriotic (and delicious!) domestic brew?

Rogue American Amber Ale. I'm sure someplace in D.C. has it. It's not too late to change your mind, Mr. President!

SCOTUS, Politics, and Dred Scott (And Hello Again)

Prof. Sandy Levinson takes Chief Justice Roberts to task over Dred Scott v. Sandford. Roberts attended a conference in West Virginia about a month ago where he was asked to discuss a Supreme Court case that seemed particularly important to him. Roberts remarked:

Well, I do think there's one that stands out, and it's a counterpoint. I mean, people talk about the monumental cases, and you assume they're talking about the good ones -- Marbury and Brown. I would say the third most significant case in the court's history was Dred Scott in the sense that while Marbury and Brown are good examples of what to do in very challenging situations and how to handle it, Dred Scott's an example where things went terribly wrong. And you need to look at that and try to figure out why.

And I think some of the reasons are pretty clear. You had, of course, the most divisive issue in our history, leading the country toward civil war, sectionalism overlayed on top of that, the political branches failing to address it in the case of the executive and failing and causing more harm than good in the case of the legislature.

And you had Roger Taney, whose reputation would be quite different if it weren't for this one case, looking at it and saying the other branches aren't working, this issue is threatening to destroy the country, and I'm going to solve it. I'm the only one who can. And he, more or less, took it upon himself to lead the court into a resolution of those issues that were dividing the country. And in a broad way, that really had no basis in a proper reading of the Constitution and in a decision that could have been resolved either way on much narrower grounds, which would have preserved the court above the fray. [...] You need to look at Dred Scott and think, well, this is a good example of how not to do it. And that can teach you just as much as the good examples.

I think what Taney did is he used a case that could have been resolved on quite narrow grounds -- and I'm not suggesting it would have resulted in a noble decision, you know, freeing the country from slavery. It might well have resulted in the same decision, but it wouldn't have had the dramatic political impact. Taney went quite beyond what was necessary. It could have been resolved on several different levels and either resulted in relief for Dred Scott or not. But instead, he resolved it on the broadest possible grounds. And as a result, I think, threw the court into the political realm quite self-consciously. [...] And as Taney did not, I think it's important to recognize there are going to be huge consequences if you do leap ahead and involve the court in politics.

Levinson pounced:

There are many things that can be said about Dred Scott; indeed, Jack Balkin and I published an article, Thirteen Ways of Looking at Dred Scott. And, of course, there is Mark Graber's magnificent book on Dred Scott and the Problem of Constitutional Evil. The Chief Justice would be well advised to spend some of his summer vacation reading Mark's book, so perhaps he would no so foolishly argue that Taney's opinion, egregious as it is in all sorts of moral dimensions, "really had no basis in a proper reading of the Constitution." What Roberts is doing is simply conveying the "judges on a rampage" view of Dred Scott, which allows us, among other things, to avoid coming to terms with the possibility that William Lloyd Garrison may have been right, that the Constitution really was a "Covenant with Death and an agreement with Hell" and that "honorable" judges had to live up to the deadly bargain (as Joseph Story, far more honored that Taney, did, with arguably lesser legal warrant, in the just-as-egregious case of Prigg v. Pennsylvania in 1842). [...] Nor were Taney and his colleagues on a rampage; they were accepting a gilt-edged invitation to try to resolve an issue that the legislature had been exposed as incapable of doing so.

If Prof. Levinson is correct (and I suspect he is), the implications are far-reaching and troubling. There is a tradition of what you might call American mythology that makes secular saints of the Founders and holy scripture of the Declaration of Independence and the Constitution. Of course, people should always strive for a better and more nuanced understanding of history, but nonetheless, it seems to me that there is some utility to American mythology. It inspires us, it gives us an ideal to reach for, and it keeps us from growing complacent with the imperfections of the present. And it is a useful corrective to our society's pervasive cynicism: after all, some of these people were truly incredible, and their lives and accomplishments merit admiration.

But Levinson is certainly right to note that there are limits to this mythology, and when it obscures proper understanding of our history, a dose of reality becomes necessary. Our admiration for the Founders and for our founding documents must never blind us to the darker moments of our history. (In particular, I can remember one day in my high school civics class when the teacher happily informed us that the U.S. Constitution was conceived by such forward-thinking individuals that it was entirely free of racism! The teacher reacted with an annoyed sigh when I raised my hand to mention the three-fifths Compromise.)

It is very difficult for Americans to except that there may be something fundamentally evil about our Constitution, and so the "judges on a rampage" theory of the repulsive Dred Scott decision can be very comforting. Instead of casting the Constitution in such a negative light, it tries to portray the question of Dred Scott's freedom as a very narrow one - one that a more restrained Court could have answered without making such sickening and unnecessarily broad declarations about who can be a citizen of the United States. I am familiar with this narrative because I myself once unsuccessfully tried to advance it. The following excerpt comes from my analysis of the political climate that led to Dred Scott:

The broader political developments of the 1820s and 1830s, including the development of abolitionist political movements and major sectional tensions over the expansion of slavery, undermined the old notion that a single national interest existed and could be promoted by politicians. When the construction and intent of the Constitution with regard to slavery came into question, the Court’s ability to simply answer constitutional questions and avoid political judgments was deeply compromised. The country was beginning to drift into North and South, and a paralyzed Congress feared exacerbating the tensions that poisoned political debate.

It was a time that called for extreme judicial restraint and increased focus on allowing the proper political bodies discuss the controversial question of slavery. Yet the developments of previous decades had moved the Court away from Marshall’s deference to legislative action [...]

This, I suppose, is accurate enough, but what follows (and what the Chief Justice was arguing) is a very difficult case to prove. Nonetheless, I continued:

Keith Whittington describes the volatile circumstances: “In the final years before the Civil War, Congress extended an invitation to the Supreme Court. Congress invited the Court to decide a constitutional question that it was unwilling to decide itself: whether the federal government had the power to prohibit slavery in the territories.”¹⁰ The issue had been disastrously destabilizing for national politics, and was even giving rise to a new Free-Soil party which threatened the established party system. In 1857, the Court, led by Chief Justice Roger Taney, saw just such an opportunity to address the question of slavery in the territories when it heard the case of Dred Scott, a slave who had been brought into free territory before returning to Missouri. Scott argued that by entering and temporarily living in free territory, he had secured his freedom.

The ruling was utterly calamitous. In his infamous opinion for the majority, Chief Justice Taney rejected Scott’s claims of citizenship on racial grounds, but more importantly for the question of slavery’s expansion, he denied the Congress’s right to ban slavery in the territories at all. This undermined the position of both the Free Soilers and advocates of popular sovereignty, since it took away the right of settlers in the territories to decide if they wanted to allow slavery. The Court, stepping far beyond the boundaries of the case, even overturned the Missouri Compromise, sending national politics into a tailspin. Alexander Bickel’s analysis of judicial review explains the Court’s need for prudence and illuminates why its broad declarations in Dred Scott only inflamed the very tensions it was meant to ease:

When it strikes down legislative policy, the Court must act rigorously on principle, else it undermines the justification for its power. It must enunciate a goal, it must demonstrate that what the legislature did will not measure up, and it must proclaim its readiness to defend the goal – absolutely, if it is an absolute one. But it is not obligated to foresee all foreseeable relevant cases and to foreclose all compromise.¹¹

[...] The Taney Court could not avoid the impression that it was entering a political debate, and in fact, it was only too eager to do just that.

My citation of Alexander Bickel is particularly problematic, for, as Levinson correctly notes, "To say that Taney should have exercised more Bickelian "prudence" is simply to say that he should have acted even more as a "politician," and it has nothing to do with the legal merits of Taney's arguments. After all, Bickel developed his theory of the "passive virtues" precisely in order to allow the Court, on patently political grounds, to avoid legal hot potatoes."

When I wrote this analysis, I was convinced of the convenient theory that Taney had simply gone beyond his proper role and created chaos where a more narrow ruling would have sufficed. But this misses the point: even if one charges that Taney was improperly attempting to settle a political question, it does not follow that his ruling was devoid of legal merit. The Constitution, prior to the 13th, 14th, and 15th Amendments, made it perfectly possible to do horrendous evil against African-Americans. That is a very uncomfortable thing for us to admit. And Taney's argument - based on a reading of fundamental property rights that protected citizens from giving up their slaves upon entering free territory - was, sadly, not a crazy opinion. Slaves were property. And property was protected.

I discovered, in a futile attempt to defend my own articulation of the "judges on rampage" theory, that it cannot withstand a more comprehensive look at the history of the period, and when the legal arguments of Taney are considered in the context of the era, the convenient, Constitution-exonerating approach of blaming the Court falls apart. It's good that we have respect and admiration for our founding documents. But our ultimate fidelity must be to the truth, or our ongoing struggle to form a more perfect Union is doomed.

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¹⁰Whittington, Keith E. “The Road Not Taken: Dred Scott, Judicial Authority, and Political Questions.” The Journal of Politics 63, no. 2 (May 2001): 365-391. <http://www.jstor.org/stable/2691757>.

¹¹Bickel, Alexander M. The Least Dangerous Branch: The Supreme Court at the Bar of Politics. New Haven: Yale University Press, 1962.

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I guess this means the end of my hiatus from blogging. Weirdly enough, traffic remained about the same even when I wasn't updating, but now I'm starting again, so those of you still checking this page will have something to read. Enjoy, and don't be afraid to comment. This operation runs more smoothly when communication goes both ways.

Palin Resigns

That might have been the weirdest speech I have ever seen. Why she's doing it is anyone's guess, but the strange timing, the weak reasons, and the obvious nervousness with which she was speeding through her idiotic platitudes suggest to me that there is a major scandal brewing, and the pressure of its impending disclosure is getting to be a bit much. But I've been wrong before.

Missing the Point on Iran

Why a preening opportunist like John McCain has any credibility left on Iran after joking about bombing it is beyond me, but nonetheless, there he was yesterday, flanked by the usual suspects and just loving the spotlight:

"As Joe said, we don’t take the side of either candidate. There seems to be some confusion about that. We take the side of the Iranian people to have human rights, to have the freedom that we deem universal. And this argument about that somehow the government may be more repressive if we speak out on behalf of the people, we’ve seen that movie before.

The liberal left, during the Cold War so warned that if we spoke out for the people who are captive nations, members of captive nations, that that would lead to greater oppression. We found out after the Berlin Wall came down that we were, in their words, a beacon of hope and liberty and freedom for them.

So the liberal left will, again, continue to argue that we should be nice to the Iranian regime and we shouldn’t encourage dissidence. That is in direct contradiction to the fundamental principles of the United States of America."

Where do you start? With the baseless charge that anyone - much less the American left - is arguing that we should "be nice" to the regime? With the lie that the "liberal left" (and here, he must be referring to President Obama) is discouraging dissidence? The President - and, as far as I can tell, other Democrats - have done no such thing. (To say nothing of the sneering smile creeping over McCain's face - which, if you happen to see video of this, you're bound to notice - when he attacked the "liberal left." Trying to score partisan political points over this is disgusting.)

But addressing these arguments one by one would miss the larger point: Iran's brave protestors would be seriously harmed by overzealous American involvement in their efforts.

McCain, in the passage I quoted above, is conflating two distinct arguments:

1) That there are some people (of course, they are left unnamed) who are insisting we must not speak out against human rights violations in Iran because it would increase the regime's oppressiveness.

2) That the dread "liberal left" (again composed of these suspicious unnamed characters) is arguing that "we should be nice to the Iranian regime and we shouldn’t encourage dissidence."

For McCain, these are one and the same - that America, by not sufficiently backing the victims of the regime's brutality, is being "nice" and discouraging dissidence.

But this is an incredibly misleading way of presenting the dilemma faced by the international community. President Obama has been wise to focus his comments not on the protestors and their cause, but on the government and its actions. By condemning the violence against mostly-peaceful protestors, the United States can advance legitimate concerns about human rights without seeming to take sides on what are basically political questions: was there election fraud, and is Ahmadinejad a legitimate president? (The answers to those questions are unknown, of course, but they're probably "yes" and "almost certainly not," especially if one considers not just this election, but the Iranian electoral process overall.)

For what it's worth, the United States has spoken out about human rights violations in Iran: President Obama declared that he was "appalled and outraged by the threats, the beatings and imprisonments of the last few days." He added, "I strongly condemn these unjust actions, and I join with the American people in mourning each and every innocent life that is lost." Yet even this relatively strong language is wisely cautious: it focuses merely on the regime's actions against the protestors, not on the legitimacy of the protestors' cause.

So McCain's first argument - that there is somehow silence over the atrocities taking place in Iran - is just wrong. And it does not follow, despite his confused declarations, that the United States is being "nice" to the regime or discouraging dissidents from protesting against the election results. In fact, the US has done little to discourage or encourage dissidence, and for good reason.

For the supporters of Mousavi to have any credibility, it is absolutely crucial that their efforts be understood as an internal rebellion of Iran's people against their government. It is therefore necessary for the United States to focus its limited influence on condemning and deploring the regime's actions against its own citizens, in order to underscore the fact that the Khamenei and Ahmadinejad are not locked in a struggle against the United States, but against their own people. Openly encouraging continued actions against the regime - which McCain apparently wants the US to do - would be taking sides, and it would undermine Mousavi's supporters terribly. Iran is crushing its own people in the streets. It is beating them with clubs, hacking them with axes, and shooting unarmed peaceful protestors, including young women. In this struggle, the enemy of the Iranian government is the Iranian people. For those courageous people to have any chance of success, we must not make this about us.

Welcome, Visitors!

Google Analytics is telling me that I'm receiving more than a few new visitors from the website of the Jeff Farias Show, which featured a link to my post "The Ethics of Outing Publius" when Mr. Farias interviewed Publius a few days ago. Thanks to everyone who's visited the site; I hope you'll return or add it to your RSS feed.

Was There Just a Coup in Iran?

Ahmadinejad's vote tally is extremely suspicious, says Juan Cole: the numbers claim, for example, that he won Tehran by over 50%, even though he is unpopular in Iran's urban centers. There are numerous other dubious results, including Ahmadinejad's eerily similar margins of victory among Iran's provinces, provinces which have historically displayed very different voting patterns. The uniformity of their results, and the myriad other strange happenings, lead Cole to conclude that "this post-election situation looks to me like a crime scene."

Meanwhile, Reuters reports that over 100 reformists have apparently been arrested, and Mir- Hossein Mousavi's supporters say he is under house arrest. Mobile phones, Facebook, and foreign news sources have all been blocked. Twitter still seems to be working, and Mousavi's supporters are using it to organize. The Huffington Post quotes a reader whose neighbor's brother, living in Tehran, says "the rooftops of nighttime Tehran are filled with people shouting 'Allah O Akbar' in protest of the government and election results. The last time he remembers this happening is in 1979 during the Revolution. Says the sound of tens of thousands on the rooftops is deafening right now."

Gary Sick, the former National Security Council member, summarizes the developments - including the barricarding of the Ministry of Interior and the deployment of huge numbers of security forces into the streets of Tehran - and concludes, "All of this had the appearance of a well orchestrated strike intended to take its opponents by surprise – the classic definition of a coup. Curiously, this was not a coup of an outside group against the ruling elite; it was a coup of the ruling elite against its own people."

There's still much that remains unclear, and because of the restrictions on foreign media, news organizations are relying heavily on firsthand dispatches - which are spotty because of the restrictions on Internet access and mobile phone service. The most significant question will probably be answered in the next few days: is the popular outrage strong and well-coordinated enough to lead to even greater violence or an attempt to overthrow the government?

Credit Where Credit is Due

Whelan apologizes and Publius accepts, keeping the conversation focused on the bigger picture:

The real story here wasn't really about me anyway -- it's about whether the norm of pseudonymity is a good thing.  And there's a legitimate debate about that.  Personally, I think that pseudonymity is a net benefit, whatever other costs it brings.  More voices are better than less -- and pseudonymity (to me) enriches the public sphere by adding voices that could not otherwise be heard.

The Ethics of Outing "Publius"

Just another episode in the long, sad, ugly decline of National Review, that once-formidable, now-cringeworthy home of American conservative thought: Ed Whelan outs Publius, the formerly-unidentified blogger at Obsidian Wings.

Whelan, who is the president of a right-wing think tank called The Ethics and Public Policy Center (home to such luminaries as the brilliant former senator Rick Santorum), apparently threw quite the hissy fit because Publius committed the horrible offense of noting another blogger's demonstration that Whelan's demagoguery regarding Judge Sonia Sotomayor was disingenuous bullshit.

Basically, Whelan was riffing on the right-wing refrain that Sotomayor is an activist judge, and he used as evidence a joke she made three years ago (no, I'm not kidding). Eugene Volokh, publisher of the prominent legal blog The Volokh Conspiracy and a law professor at UCLA, wrote that there was nothing wrong with what Sotomayor said. Even when Whelan revised his criticism, Volokh wrote that it "still isn't quite apt." Publius noted this exchange, said that Volokh had "decimated" Whelan's argument, and criticized Whelan (a Harvard Law grad) for "playing the role of know-nothing demagogue" in order to advance dishonest right-wing talking points. 

As it turns out, Ed Whelan does not like to be criticized. He wrote an email to Obsidian Wings and told the site he had sources about the true identity of Publius. Publius responded, saying he blogged pseudonymously for private and professional reasons, and that he preferred to keep it that way. 

That, it seems, was when the president of a think tank whose stated mission is to "reinforce the bond between the Judeo-Christian moral tradition and the public debate over domestic and foreign policy issues" decided to defy the explicit wishes of Publius. Calling Publius a "coward and idiot" (and, oddly, making a hurt reference to having been called a "legal hitman" by a totally different blog), Whelan proceeded to expose the identity of Publius on NRO's The Corner. 

Publius, it turns out, is the pseudonym of John Blevins, a graduate of Yale and UVA law and a professor at the South Texas College of Law. Blevins had many reasons for remaining pseudonymous, reasons which Whelan decided to disrespect because his feelings were hurt. "One bane of the Internet," Whelan whined, "is the anonymous blogger who abuses his anonymity to engage in irresponsible attacks."

Clearly, Blevins had succeeded at getting under Whelan's (apparently thin) skin. Whelan's decision to "out" Publius brings some interesting questions to the fore. Because blogs are a relatively new medium, there is a certain ambiguity about which practices conform to blogging's etiquette. I think, though, that Whelan's actions clearly cross the line. I think bloggers - or anyone, for that matter, who is publishing original material - ought to reserve the right to remain pseudonymous in all but the most extreme of cases. What Whelan did is hardly about "exposing" an "irresponsible" antagonist, because all Blevins did was point out a third party's criticism of Whelan. 

No, Whelan acted for a far more sinister purpose: to silence a major critic, one whose effectiveness was undermining his credibility. He rightly assumed that Blevins had important reasons for insisting on pseudonymity, and by ending that pseudonymity, he thought he could shut Blevins up. The ability to speak freely is, in some cases, dependent upon the ability to speak pseudonymously. Whelan's think tank claims to be devoted to "individual freedom," but apparently Whelan only wants that freedom for people who agree with him. If they disagree, he'll do as much as is in his power to silence their voices.  

Furthermore, consider Whelan's weird reaction to being criticized: he informed the team at Obsidian Wings that he was "reliably informed" that Publius was a pseudonym for John Blevins. Where did Whelan get this information, and for how long was he sitting on it? Did he know, for example, that Publius was a law professor when he asserted that he lacked basic legal knowledge? The bullying, disrespectful actions he took against a legitimate critic are sadly typical of what's left of the conservative movement today: a small (and ever-shrinking) group of thin-skinned, demagogic, dishonest hyperpartisans whose devotion to political power far outweighs their devotion to even the simplest standards of decency. 

Whelan should be (but won't be) ashamed of his actions. Hopefully he won't intimidate Blevins into keeping quiet - and hopefully others won't mimic his despicable tactics. 

Preventive Detention and the Rule of ___

I had an interesting discussion yesterday with one of my tutors about President Obama's terror policy. The tutor is an expert on American history and has done significant work on the Constitution, Supreme Court, and development of the American legal system. He expressed some disappointment with Obama's speech at the Archives, calling his terrorism policy "a carbon copy of Bush's." We went back and forth over that remark for a few minutes, but ultimately what he was getting at was the policy of preventive detention - also known as prolonged detention, administrative detention, and indefinite detention. This is the policy, in Obama's own words:

Now, finally, there remains the question of detainees at Guantanamo who cannot be prosecuted yet who pose a clear danger to the American people. And I have to be honest here -- this is the toughest single issue that we will face. We're going to exhaust every avenue that we have to prosecute those at Guantanamo who pose a danger to our country. But even when this process is complete, there may be a number of people who cannot be prosecuted for past crimes, in some cases because evidence may be tainted, but who nonetheless pose a threat to the security of the United States. Examples of that threat include people who've received extensive explosives training at al Qaeda training camps, or commanded Taliban troops in battle, or expressed their allegiance to Osama bin Laden, or otherwise made it clear that they want to kill Americans. These are people who, in effect, remain at war with the United States.

Let me repeat: I am not going to release individuals who endanger the American people. Al Qaeda terrorists and their affiliates are at war with the United States, and those that we capture -- like other prisoners of war -- must be prevented from attacking us again. Having said that, we must recognize that these detention policies cannot be unbounded. They can't be based simply on what I or the executive branch decide alone. That's why my administration has begun to reshape the standards that apply to ensure that they are in line with the rule of law. We must have clear, defensible, and lawful standards for those who fall into this category. We must have fair procedures so that we don't make mistakes. We must have a thorough process of periodic review, so that any prolonged detention is carefully evaluated and justified. 

I know that creating such a system poses unique challenges. And other countries have grappled with this question; now, so must we. But I want to be very clear that our goal is to construct a legitimate legal framework for the remaining Guantanamo detainees that cannot be transferred. Our goal is not to avoid a legitimate legal framework. In our constitutional system, prolonged detention should not be the decision of any one man. If and when we determine that the United States must hold individuals to keep them from carrying out an act of war, we will do so within a system that involves judicial and congressional oversight. And so, going forward, my administration will work with Congress to develop an appropriate legal regime so that our efforts are consistent with our values and our Constitution.

This section of the speech has earned a fair bit of attention. Essentially, the President is announcing that we'll bring as many of the prisoners at Guantanamo into courtrooms as we can, but there are some who can't be tried. Those prisoners will remain locked up for as long as the government decides is necessary.

It's not clear that such a legal regime would be constitutional. Prolonged detention by the executive without trial was abandoned long ago in Western legal tradition, and it would be a clear violation of the rule of law to bring it back. That is why the President was so careful to point out that any system of prolonged detention would be subject to legislative and judicial participation and oversight - doing so would avoid (in theory, at least) arbitrary extended detention at the hands of the executive. 

In a helpful article unpacking the issue, the NYT referred to the practice of prolonged detention without trial as "at the very boundary of American law," and quoted Michigan law professor Monica Hakimi as saying that the practice would be "an aggressive approach that is not commonly taken in other Western developed countries." Furthermore, the system Obama is advocating is strangely dismissive of the role of U.S. courts in antiterror policy:

Civil liberties lawyers say American criminal laws are written broadly enough to make it relatively easy to convict terrorism suspects. They say Mr. Obama has not made the case persuasively that there is a worrisome category of detainees who are too dangerous to release but who cannot be convicted. The reason to have a criminal justice system at all, they say, is to trust it to decide who is guilty and who is not.

This, my tutor argued, was the crux of the issue. It's hard to imagine a situation in which conviction of these prisoners - if they are truly dangerous - would be so difficult. This is precisely the question Matt Steinglass poses:

But here’s my main question: what exactly is so hard about getting terrorists convicted in American courts? Under US law, even “providing material aid” to any “terrorist organization” is a felony. I mean, come on — the US can try university professors for “material aid” to a “terrorist” organization for recruiting donations to a Palestinian political and charity group that was not, at the time, considered a terrorist organization. How hard is it, really, to convict someone picked up “on the battlefield” in Afghanistan of having “provided material support” to the Taliban? This is US Code Title 18, Part I, Chapter 113B:

§ 2339B. Providing material support or resources to designated foreign terrorist organizations

(1) Unlawful conduct.— Whoever knowingly provides material support or resources to a foreign terrorist organization, or attempts or conspires to do so, shall be fined under this title or imprisoned not more than 15 years, or both, and, if the death of any person results, shall be imprisoned for any term of years or for life. 

Now, I think this law is overbroad. (Here’s Georgetown constitutional law professor David Cole detailing the reasons he thinks it’s unconstitutional. Cole: “President Clinton used IEEPA to label a U.S. citizen a ’specially designated terrorist’ without hearing, notice, or trial, and then to subject him to a kind of internal banishment, in which it is a crime for anyone else in the United States to provide him with anything of value.” And so on.) 

But it’s on the books. And are you seriously telling me that the Bush Administration’s torture regime has so thoroughly bolloxed the entirety of the evidence regarding detainees at Gitmo that we can no longer even prove they were doing anything to support any group on the State Department’s list of terrorist organizations? Any such group whose actions have resulted in “the death of any person”? If we can’t prove that about these guys, what are they doing in prison?

A fair question. President Obama, my tutor noted, gave the speech in the National Archives, which houses the Declaration of Independence, the Constitution, and the Bill of Rights. He referred repeatedly to "the rule of law" in his speech. But the rule of law means something - specifically, it means that there are certain things the government can't do, even if the situation seems to require it. If the President feels he needs to take extraordinary action beyond the law to protect America, that's one thing - but he shouldn't refer to his actions as being governed by the rule of law, and no legal tradition would recognize it that way. As my tutor put it, it's the difference between the rule of law and the rule of men.

It's not clear, of course, whether the president will take such extraordinary steps that test the limits of the Constitution. The details of his detention program are not clear yet, and the fight over the use of courts is far from over. I do have a fundamental faith in him to abide by the law, and I think he has shown a deep reverence for the Constitution which will prove crucial as he shapes America's terror policy after the closure of Guantanamo. 

Benjamin Wittes of the Brookings Institution, who was quoted in the NYT article, offers useful perspective on the complications of this issue:

For starters, I believe that quite apart from questions of presidential power, there is ample space under extant constitutional law for preventive detention in the terrorism context--just as there are preventive detention authorities under a variety of other statutes [...] Suffice it to say that American law tolerates preventive detention in a variety of contexts if the danger the individual poses is great enough and the proceeses for assessing that danger are adequate.

This issue, of course, is far from settled, but it's an important debate that will surely continue. He adds:

I do not believe the President has any power to act beyond the powers the Constitution grants him. Presidents, of course, have occasionally done so in good-faith efforts to defend the nation (and the Constitution). But I do not argue for the legality of such actions, however necessary under the circumstances that gave rise to them they might have been.

The problem posed to us by the rule of law is that it clearly limits our ability to do things we believe are necessary. I look forward to following the debate about the constitutionality of the president's new antiterror policies. I have faith that the debate will be carried out - as it has sadly not been in the past - with candor, intelligent and reasoned arguments instead of fearmongering, and with deference to American legal traditions. The problem with the debate over the Bush administration's antiterror policies wasn't that it wasn't worth having. It was that they approached the debate with obvious disdain for anyone who disagreed with them in good faith, and more importantly, for the law. They saw it as a hurdle to be jumped, rather than as a source of wisdom and a guide for their actions. Dick Cheney even said last week, "In my long experience in Washington, few matters have inspired so much contrived indignation and phony moralizing as the interrogation methods applied to a few captured terrorists." I'm sure he would say the same thing about the debate over detention policy, but that's because he never understood the importance of the issues at stake. Fortunately, we now have someone in charge who does.