The Amazing Self-Refuting Talking Point

by

by hilzoy

From the Washington Post:

“The Republican National Committee sent allies a list of “talking points,” including: “It’s disappointing that while President Bush has focused his administration’s entire efforts towards saving lives and helping the victims of Katrina, there are those who are using this tragedy to score cheap political points.””

This is actually quite funny. It is true that now is not the time to worry about scoring political points. The Republican National Committee presumably thinks that this idea can be used against its opponents. But, obviously, it applies equally to them, and to whoever wrote this talking point: it is an effort to contain the political damage President Bush has sustained as a result of his administration’s inept response to Hurricane Katrina. When the Republican National Committee hands out talking points, it is obviously engaged in an effort to score political points. By its own logic, therefore, it should be condemned.

Not so fast, you might say: it’s only “cheap” political points that are condemned here. And this is true: making a valid point that is also political, or that has political ramifications, is presumably OK, so long as one is not motivated by the desire to score political points, as opposed to the desire to do something about the hurricane victims, or to prevent any similar catastrophe from occurring in the future.

However, this still leaves the RNC condemned by its own logic. As I wrote earlier, trying to figure out who is responsible for whatever went wrong is essential to the effort to make sure we do not repeat our mistakes the next time a disaster, natural or man-made, strikes us. This is absolutely not a cheap political point, so long as the attempt to fix blame is carried out honestly. By contrast, the attempt to discredit anyone who tries to figure out where blame lies as a person who is interested only in scoring ‘cheap political points’ is directly counterproductive: it is aimed at preventing any honest accounting, and thus at impeding our attempts to fix whatever went wrong with our response. This is politicizing a catastrophe, and doing so in a way that directly harms our ability to get it right next time.

50 thoughts on “The Amazing Self-Refuting Talking Point”

  1. (dare I say it?)
    Freedom is on the march!
    (and please add any other empty platitude in the face of chaos and anarchy)

  2. The Daily Show had the best one: The Bush Administration will build a dam in Arkansas. Naturally, so that we can fight the water over there so that we don’t have to fight it over here.
    I honestly don’t see how someone can still defend today’s Republican party and be both decent and informed.

  4. It’s a PRIVATE public freedom march, Neo. You aren’t invited. Those joining the march without the proper screening, registration, and credentials will be shot and then detained.

  7. I am reminded of Invader Zim.
    Bow down
    bow down
    before the power of Santa
    or be crushed
    be crushed by
    his Jolly Boots of Doom!

  8. Oh for crying out loud, did those judges even READ Hamdi and Stevens, Souter’s, Ginsburg and Breyer’s Padilla opinion? The fact that Padilla was detained on U.S. soil is a reason for MORE presidential authority under the use of force resolution? It takes only the most minimal reading comprehension and justice-counting skills to see that this is the exact opposite of what the Supreme Court wanted.
    Perhaps they are counting on a different Supreme Court. Perhaps they are even auditioning for it.
    I can’t believe this outcome. I really can’t.
    Those judges need to be filibustered if nominated for the Supreme Court.

  9. Yeah, Ugh, I just skimmed the op. Not a single word as to any qualms about the gov’t’s holding this guy INDEFINITELY.
    I would think the Supremes would have to at least qualify this holding, but then, what kind of Supreme Court are we going to have when this goes up?

  11. Can someone post a link to the opinion? I can’t find it.
    This increases the urgency of finding out Roberts’ views on this subject, and also allows him not to answer questions on it because this will certainly be appealed to the Supreme Court.
    I still think we’re safe for now at the next level–even if we get two new judges with Luttig’s views on executive power, Scalia + the four judges who never wanted to punt on this case in the first place. But 5-4 on something as fundamental as this is much, much too close. And the Supreme Court is not willing and not able to hear every case; it depends on the executive and the lower courts making a sincere effort to abide by its rulings instead of doing everything to evade them short of “Justice Marshall has made his decision now let him enforce it.”
    People need to take this seriously.

  18. I take it back; Padilla’s detention is not “indefinite”:
    Under Hamdi, the power to detain that is authorized under the AUMF is not a power to detain indefinitely. Detention is limited to the duration of the hostilities as to which the detention is authorized. 124 S. Ct. at 2641-42. Because the United States remains engaged in the conflict with al Qaeda in Afghanistan, Padilla’s detention has not exceeded in duration that authorized by the AUMF.
    So as soon as we’ve eradicated every trace of al Qaeda in Afghanistan, Padilla walks or gets charged? Wonderful news! Best hope you’ve got a comfy cell, Paddie!

  19. “entered the United States”? He’s a U.S. citizen.
    Just to remind people, this is what Justice Stevens had to say in arguing that the Supreme Court should decide Padilla right away:
    “At stake in this case is nothing less than the essence of a free society. Even more important than the method of selecting the people’s rulers and their successors is the character of the constraints imposed on the Executive by the rule of law. Unconstrained Executive detention for the purpose of investigating and preventing subversive activity is the hallmark of the Star Chamber.10 Access to counsel for the purpose of protecting the citizen from official mistakes and mistreatment is the hallmark of due process.
    Executive detention of subversive citizens, like detention of enemy soldiers to keep them off the battlefield, may sometimes be justified to prevent persons from launching or becoming missiles of destruction. It may not, however, be justified by the naked interest in using unlawful procedures to extract information. Incommunicado detention for months on end is such a procedure. Whether the information so procured is more or less reliable than that acquired by more extreme forms of torture is of no consequence. For if this Nation is to remain true to the ideals symbolized by its flag, it must not wield the tools of tyrants even to resist an assault by the forces of tyranny.”
    Justices Souter, Ginsburg and Breyer joined in this opinion.
    Here is what Justice Scalia had to say about Hamdi:
    “It follows from what I have said that Hamdi is entitled to a habeas decree requiring his release unless (1) criminal proceedings are promptly brought, or (2) Congress has suspended the writ of habeas corpus.”
    I can count to five. Can judge Luttig?
    Here are the places in O’Connor’s Hamdi opinion where she emphasizes that he was captured abroad, on a battlefield, implying that the result might otherwise be different. I am deleting citations for length reasons:
    “It is a clearly established principle of the law of war that detention may last no longer than active hostilities….Hamdi contends that the AUMF does not authorize indefinite or perpetual detention. Certainly, we agree that indefinite detention for the purpose of interrogation is not authorized. Further, we understand Congress’ grant of authority for the use of “necessary and appropriate force” to include the authority to detain for the duration of the relevant conflict, and our understanding is based on longstanding law-of-war principles. If the practical circumstances of a given conflict are entirely unlike those of the conflicts that informed the development of the law of war, that understanding may unravel. But that is not the situation we face as of this date. Active combat operations against Taliban fighters apparently are ongoing in Afghanistan. The United States may detain, for the duration of these hostilities, individuals legitimately determined to be Taliban combatants who “engaged in an armed conflict against the United States.” If the record establishes that United States troops are still involved in active combat in Afghanistan, those detentions are part of the exercise of “necessary and appropriate force,” and therefore are authorized by the AUMF.
    Ex parte Milligan, 4 Wall. 2, 125 (1866), does not undermine our holding about the Government’s authority to seize enemy combatants, as we define that term today. In that case, the Court made repeated reference to the fact that its inquiry into whether the military tribunal had jurisdiction to try and punish Milligan turned in large part on the fact that Milligan was not a prisoner of war, but a resident of Indiana arrested while at home there. Id., at 118, 131. That fact was central to its conclusion. Had Milligan been captured while he was assisting Confederate soldiers by carrying a rifle against Union troops on a Confederate battlefield, the holding of the Court might well have been different. The Court’s repeated explanations that Milligan was not a prisoner of war suggest that had these different circumstances been present he could have been detained under military authority for the duration of the conflict, whether or not he was a citizen…
    Further, Justice Scalia largely ignores the context of this case: a United States citizen captured in a foreign combat zone. Justice Scalia refers to only one case involving this factual scenario–a case in which a United States citizen-POW (a member of the Italian army) from World War II was seized on the battlefield in Sicily and then held in the United States. The court in that case held that the military detention of that United States citizen was lawful. See In re Territo, 156 F.2d, at 148.
    Justice Scalia’s treatment of that case–in a footnote–suffers from the same defect as does his treatment of Quirin: Because Justice Scalia finds the fact of battlefield capture irrelevant, his distinction based on the fact that the petitioner “conceded” enemy combatant status is beside the point. See supra, at 15—16. Justice Scalia can point to no case or other authority for the proposition that those captured on a foreign battlefield (whether detained there or in U.S. territory) cannot be detained outside the criminal process.”

  20. For me, the resonant part of O’Connor’s position above was this sentence: If the practical circumstances of a given conflict are entirely unlike those of the conflicts that informed the development of the law of war, that understanding may unravel.
    Would the “Global Struggle Against Violent Extremism” merit the full executive authority as a war seems to?

  21. Man, something shiny and metallic is sitting on my head. Anyone want to bet on some sort of attack on the “Freedom” March in an area where there aren’t any press cameras?

  24. More off topic, although given where the thread is going, now practically on topic: Was anyone aware that this was going on? I searched google news and found only one reference in the US press to the Guantanemo hunger strike–in the Washington Times, bizarrely–but a number in the British and Australian press. Almost like the US press doesn’t want people to know about it.

  25. So I don’t get the procedural posture of the Padilla case. The government appealed the district court grant of Padilla’s summary judgment motion. The 4th Circuit reversed, which, I think, should be a denial of his motion.
    In a normal case (let’s assume no appeal) we go back to have a trial to figure what the facts are, since Padilla’s lawyers stipulated that the government’s were true for purposes of the motion (and which the court would have to construe in the light most favorable to the government in any event). But here, does Padilla get a trial to determine whether he did, in fact, do all of the things the government alleged and therefore is an enemy combatant subject to detention until hostilities cease? Or is he SOL?

  27. No trial, is my understanding, Ugh.
    It’s curious that the feds say they can’t allow Padilla to be dealt with by the courts, because that might not serve the purpose of keeping him off the battlefield.
    If their facts on Padilla are correct, then a conviction should be easy, and it would put him away for a Very Long Time. And we can assume the feds aren’t impugning their own facts.
    The only alternative I can see is that the “facts” on Padilla are such as wouldn’t be admissible in court. Did your “torture” buzzer just go off? And besides that, who knows what hearsay from what Afghan warlord’s grunts was relied upon? We don’t know *what* the feds’ info it, IIRC.
    The 4th Circuit’s op is remarkable for its unquestioning assumption of the facts as alleged by the feds, without the least hesitation as to how we are supposed to know all this.

  28. here’s a nice talking point: Bush should apologize, but because he’s constantly set-upon by the wicked left (who is currntly “dancing on the graves of black people”), he Just Can’t Do It.

  29. I should add that it’s pretty hard to get this kind of news out. I’ll be down week after next. I have to turn whatever notes I take over to the government, wait for them to get back to DC (maybe 2-3 weeks) and then have to request declassification of whatever I want to tell the press. I’m still waiting for declassification of some material I requested in May.
    The only shortcut would be to memorize whatever I can, write my recollections down while sitting in the ‘secure facility’ and then request declassification. It’ll still take plenty of time, and maybe be old news (or maybe not news at all, if there’s a celebrity trial or something).

  30. Although, Ugh, Marty Lederman is far more trustworthy than I on these matters, and he says:

    Most recently, however, the Administration alleges that Padilla fought on the actual battlefield in Afghanistan and that his detention at O’Hare therefore is an appropriate means of keeping him from returning to Afghanistan to fight. This strikes me as extremely counterfactual, but it looks as though that’s the story the Administration is now pressing. And it’s certainly the predicate on which today’s decision is based. Once one accepts that predicate — and of course Padilla presumably will have some opportunity to challenge it — as the court does for purposes of today’s decision, then it becomes difficult to explain why Padilla ought to be treated differently from Hamdi.

    Read the whole thing, as they say.

  31. The 4th Circuit’s op is remarkable for its unquestioning assumption of the facts as alleged by the feds, without the least hesitation as to how we are supposed to know all this.
    I agree, and was confused until I got to the first footnote which said that they were stipulated for purposes of the motion. The court’s decision then should be if the facts stipulated for purposes of the summj motion are true then we conclude that the government can hold Padilla indefinitely. But for some reason, we seem to be skipping figuring out the if part.
    Bad, bad, bad.

  32. Considering how expensive Republican spinmeisters are, there really is no such thing as a cheap political point from the GOP.

  34. See, I just do civil law, so I don’t understand why this is a “summary judgment” motion in the criminal context. I guess maybe, because P. hasn’t been charged with anything, civil law applies?
    It’s correct that when seeking SJ, you have to accept the version of the facts that favors the non-movant.
    But if this is SJ, that implies a trial to determine the actual facts. And I thought that’s exactly what the feds weren’t going to allow Padilla, based on their alleged right to hold him under the Congressional resolution. But based on Lederman’s remarks, I guess we are looking at a trial on whether P. actually meets the criteria of the resolution.
    Speaking of which, I followed Katherine’s link, and found that the substance of the resolution is brief indeed:

    the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

    This clearly has no application whatsoever to aiding al Qaeda if you aided them (1) after 9/11 or (2) without helping ’em out with 9/11. I just can’t read it any other way.
    So I’m lost as to why this resolution is even relevant.

  36. “The only alternative I can see is that the “facts” on Padilla are such as wouldn’t be admissible in court. Did your “torture” buzzer just go off?”
    IIRC, much of the “evidence” against Padilla was based on information “interrogated” from a high-level al Qaeda member whose name escapes me. Such evidence would not be admissable in a court trial (I hope). But that was the “dirty bomb” stuff. The actual fighting is new to me. Who knows where it comes from.

  39. “Was anyone aware that this was going on?”
    Quite. Don’t think I’ve posted about it, but, then, I have about 300 articles in the “to post” queue.
    “I searched google news and found only one reference in the US press to the Guantanemo hunger strike”
    It could use more U.S. attention, without a doubt. But you didn’t look very hard, on the other hand.
    Channel 4 in San Francisco. Billings Gazette. North County Times. New Standard of NY. Boston Globe. Int’l Herald Tribune. Houston Chronicle, Science Daily, Washington Post, Arkansas Democrat-Gazette, Amarillo.com, and on and on, with dozens of American cites.
    This from a simple search for “Guantanamo” and “hunger strike”. What did you use?

  40. Back on Padilla –
    A commentor over at balkinization notes that Ashcroft stated at a press conference the day after the President designated him an enemy combatant that Padilla came to the U.S. do detonate a dirty bomb. The case makes no such mention that that was Padilla’s plan, only that he came to blow up apartment buildings. The commentor speculates that Ashcroft was flat out lying at the press conference and that he got away with it.
    Not sure what to do with that. I guess just at it to the pile.

  42. Saw that, Ugh. Actually, for once I would have no problem with Ashcroft on that.
    It’s all the lying without any contribution to national security that gets on my nerves.

  43. Well, I’m not sure that the lying contributed to national security, or that said lie was even necessary, and it certainly is not necessary any longer, yet Padilla will forever be known as “the dirty bomber.”
    I would note that the lie also allowed them to frighten the citizenry more than “apartment bomber” would have.
    Anyway, like I said, not sure what to do with that.

  46. Gary: I used “hunger strike” by itself as a keyword, got all foreign sources. Adding “Guantanamo” got a few US sources, but not as many as one might expect. Or maybe more than one might expect, given CharleyCorp’s description of the difficulties of reporting on Guantanamo. And, to be fair to the US press, there has been this little distraction taking up the headlines. Something about a bit of a storm…

  48. I dunno. Ultra-Pipi (aka Hamstergeddon) is one of my favorites, as is Plague Of Babies for just surreal disturbingness…
    …but still, how can anyone resist the power of Santa? 😉

  49. Adding “Guantanamo” got a few US sources, but not as many as one might expect.

    Since I don’t have to think to do this, and it’s easier than thinking, and distracts me from feeling icky: from today’s news: San Jose Mercury News, Washington Times, Miami Herald, Seattle Post-Intelligencer, LA Times, Newsday, Charlotte Observer, Myrtle Beach Sun News, Fort Wayne News Sentinel, The Oregonian, Bradenton Herald, Dateline Alabama, Tallahassee Democrat, The Wichita Eagle, Macon Telegraph, and on and on, through the Mid Columbia Tri City Herald, Fort Worth Star Telegram, Lexington Herald-Leader, Akron Beacon Journal, Tuscaloosa News, Columbus Ledger-Enquirer, Centre Daily Times, PA, San Luis Obispo Tribune, The State, SC, The Ledger, Fl, Monterey County Herald, CA, Kansas City Star, MO, Grand Forks Herald, ND, Fort Wayne Journal Gazette, IN, Gadsden Times), AL, Biloxi Sun Herald, Times Daily, AL, Duluth News Tribune, MN, Pioneer Press, MN, Philly.com….
    How many stories should one expect?

  50. Two possibilities, you might have ended up searching Google instead of Google news, or, more likely, misspelling Gitmo may have excluded a lot of hits. Dianne’s first post had ‘Guantanemo’.

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