And when the last law was down, and the Devil turned ’round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man’s laws, not God’s! And if you cut them down, and you’re just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake! – Sir Thomas More, A Man For All Seasons

There has been no shortage of writing about the video that Liz Cheney’s Keep America Safe group produced that criticizes Department of Justice lawyers for representing the “Al Qaeda 7″. I’m not convinced that I’m qualified to offer anything more of value on the specifics that have come out surrounding the not subtle charges of impropriety, failure of loyalty towards country in time of war, all the way to jihadist sympathies, so I won’t be trying. But the whole affair speaks to some of the deeper concerns with which I’ve been wrestling of late.

Not surprisingly, everyone’s favourite NRO zealot Andy McCarthy has added his two cents to the discussion, which has kicked up a brand new cloud of dust into which various parties have charged, blades drawn,

Here is the legal profession’s message for the American people: “We’re just more important than you are.” Members of any other profession or institution would be indicted for coming to the enemy’s aid during wartime. Lawyers not only demand immunity from the ordinary duties of citizenship, but they insist that you admire them, or, at the very least, regard them as above criticism for volunteering their services to those trying to kill Americans.

Orin Kerr at The Volokh Conspiracy seems to have penned the gold standard in response to McCarthy noting,

Finally, McCarthy strangely overlooks the basic fact that much of the litigation for the Guantanamo detainees concerns whether they are in fact the enemy. McCarthy presupposes that we all know that all the folks at Gitmo are terrorists, and the only issue is whether we feel like helping them knowing that it hurts America. But like the soldiers at the Boston Massacre, and like other criminal defendants, the Guantanamo detainees are “the accused.”

At True/Slant, Conor Friedersdorf dug out the real life case that makes Kerr’s final point,

Thus Mr. al-Rabiah. It isn’t just that he was an innocent man thrown into Gitmo, or that he was held even after a CIA analyst concluded that he was innocent, or that National Security Council Staffers were aware of his innocence and actively trying to bring about a review of his detention — Mr. al-Rabiah’s case is apt because after the CIA’s 2002 determination of his innocence, he spent another seven years wrongly imprisoned, regaining his freedom and seeing his children only after retaining the help of American attorneys.

Finally, Kevin Drum notes both Kerr and Friedersdorf’s objections to the Cheney/McCarthy line of reasoning and adds,

The Andy McCarthys of the world endlessly lecture us about how this war is different because it’s fought on one side by non-uniformed terrorists. And there’s some truth to that. It is different. But one of the ways it’s different is that it’s not always simple to know who’s a real enemy combatant and who’s not. And if that decision is left entirely up to the executive branch, you’re practically begging for the same kinds of abuses that you get if you let the executive branch operate without oversight in any other area. Thus, lawyers and judges have a role to play. They aren’t aiding the enemy during wartime, they’re trying to figure out who the enemy really is. Even Andy McCarthy ought to be interested in that.

I agree that Kerr’s point about utilizing the judiciary system to determine who, precisely, constitutes an enemy combatant and who does not is a vital point. But an equally vital point, at least to my mind, is summed by another portion of Kerr’s retaliation wherein he revisits the John Adams analogy that has been floating about (emphasis mine),

When Adams agreed to represent the English soldiers, he was not fulfilling some sort of obligation: No one had to represent the Englishmen. Adams acted — and was criticized then, but celebrated now, for it — because he agreed to represent the soldiers out of a personal conviction that no person should face a trial without counsel.

This is, I think, a point that hasn’t gotten enough attention and strikes, at least by my lights, to the much more central core of what is so disturbing about McCarthy and Cheney’s line of thought.

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As I can’t currently comment on the site during the day, I struck up a conversation/debate with Mike at the Big Stick via email about my Dubai assassination post. Mark eventually got in on the act and we thought that the back and forth was good enough to post here for your review.

Scott: I can’t respond to your comments on the site because I no longer have access to the League from work. But if it would be of interest to you, I’d be happy to have a bit of an email exchange to explore things further. I’ve got some work to which I need to attend this morning, but I’d be happy to fire back an initial response to you comment a little later. Let me know if that is of interest.

Mike: Sure Scott – fire away.

Scott: This is less in depth than I had hoped for, but the long and the short of my post can be summed up as follows:

• I’m not condemning Israel, I identified that I was not prepared to forgo the conclusion that Mahmoud al-Mabhouh deserved to die and that the Mossad were the right folks to do it,
• I worry that using tactics like assassination leave us feeling less morally culpable,
• I feel like we ought to be wracked with every bit as much doubt, uncertainty, and moral consternation over the decision to assassinate someone as we are when deciding whether or not to engage in conventional warfare, granted over different dynamics,
• And that a belief that it does as a tactic does leave us less morally culpable in terms of state sanctioned violence can and in this case seems to have lead to an attitude that is counter-rpoductive to actually ending the conflict in question.

In terms of your Hitler example, believing that Hitler should have been assassinated does not absolve us from a critical analysis of the use of assassination as an acceptable tactic in all future instances, which is, really, all I’m calling for.

Mike: I’m more inclined to say that it makes us more morally culpable. When we’re talking about general war quite often the higher-ups are insulated from the decision making. How often does the President or the Sec. of Defense get a call asking permission to fire a rocket at a Taliban position or lob a grenade into a cave where bad guys are hiding? On the flip side, when you arrange for an assassination somebody pretty high up the food chain has to say, “Yes, I want you to kill this man”. To me that’s what makes it real for them.

I also think, as many commenters pointed out, that assassination is actually better because there’s no collateral damage. One target, one dead. If you’re going to wage war, they should all be fought that way.

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The suspected assassination of senior Hamas military commander  Mahmoud al-Mabhouh in Dubai by the Israeli Mossad on January 19 has caused me a good deal of consternation from the outset. But this latest story from the Daily Caller showing a “soar” in the Mossad’s popularity and a run on paraphernalia bearing the slogan, “Don’t Mess with the Mossad” is just too much (h/t: Sullivan).

I’ve been going back and forth with myself for the past few weeks about why the assassination bothers me so much. Especially as someone who has reconciled himself, however unhappily, to the reality that in some instances state sanctioned violence will be a necessary evil in combating certain geo-political players.

One can’t deny how controlled and contained the whole thing was. As Andrew himself said in his original post on the matter,

In fighting murderous Jihadist terrorists, I have to say I find this kind of surgical execution, however awful, to be morally superior to the collateral deaths of so many innocent children and civilians, as occurred in the Gaza war under the rules of conduct the IDF allowed. It’s also morally more defensible than the US drone attacks in Pakistan and Afghanistan, where civilian casualties are both morally deeply troubling and strategically terrible in a war that I continue to believe is essentially unwinnable.

I can’t disagree with Andrew on any of that, per se. I mean, I’m not prepared to completely forgo the conclusion that this man deserved to die and that the Mossad, if they did indeed carry out the operation, were the right people to make that happen. I can’t disagree with the idea that a method avoiding civilian casualties, innocent children amongst them, is preferable to one that does not.

But it is precisely the “surgical execution” of this operation that gives me pause and makes me shudder. Though I think it is sometimes necessary to use precisely this kind of state sanctioned violence towards certain ends, I correspondingly think that we have a moral obligation to reckon in an unflinching manner with the ramifications of our decision. I believe that no matter what form it happens to take, the use of state sanctioned violence is an ugly thing that ought to cause us grief no matter the seeming righteousness of our cause.

The ugliness of military activity, whether it is in Gaza, Afghanistan, Iraq, or elsewhere, is always easy to spot. It is, essentially, inescapable. These more traditional forms of military might and use of force are honest insofar as they force us to grapple with the implications of our decision.

But the cool and almost bloodless efficacy of this type of operation — and assassination of this kind — it seems almost designed to lull us into a false consciousness of complacency about the tactics we choose to engage in dealing with, admittedly, unavoidable conflict. And in providing such a respite from the penetrating eyes of innocent children, we morally short change ourselves and others by willfully choosing a path of cognitive and ethical blindness and dissonance.

The natural outcome of such cowardice is a kind of self-serving bravado that cultivates slogans like, “Don’t Mess with the Mossad” and Marty Peretz’s borrowed line,

The Mossad did it. And, as Carly Simon sang about James Bond, “nobody does it better.”

Bravado of the like isn’t just offensive in the cavalier dismissiveness of its attitude, it is, in fact, anathema to the character, disposition, and fortitude required to actually bring an end to the generations old warring into which it faces. Bravado of this variety isn’t ultimately aimed at ending one of the world’s most horrific conflicts; indeed, it not so subtly feeds into it, prolongs it, sustains it.

And those penetrating eyes, we don’t lift them from our conscience, nor scrub their blood from our hands. Deep down we all know that, at best, we put them off to another day.

Responding to Greg Sargent’s question about how much of an issue the use of reconciliation might be in fall elections, Jonathan Bernstein, who is guest blogging for Andrew Sullivan while he’s away on a break — and congrats, Jonathan! — speculates,

This is an easy one: while I suppose it’s vaguely possible that Republicans could raise reconciliation as an issue in the fall, it’s about as certain as anything could be that it won’t affect any votes. First of all, no one knows what reconciliation is; I mean, shockingly few people know what a filibuster is, really, so it’s pretty clear that no one knows what reconciliation is. Be sure to read this great anecdote from Chris Bowers (and a related one from Matt Yglesias). But beyond that, no one cares. Really.

I can understand why Bernstein, Bowers, and Yglesias feel the way that they do, but not surprisingly I’m inclined to counsel against being too dismissive. Without taking on the issue of whether reconciliation is the correct course of action in this instance — and I’m inclined to believe that it is — the fact that it is procedural or arcane or that there is a perception that no one understands what it is or what it’s for does not mean that it won’t be an issue in the election should the Republicans choose to make it one.

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CNN has a new poll out in their Broken Government series showing that the American public is tired of partisanship and wants the Democrats to take the first step in fixing it,

Even though more people think Republicans are not doing enough to reach bipartisan consensus, 54 percent believe the Democratic party should take the first step toward developing bipartisan solutions to the country’s problems, the survey says. Forty-two percent say the GOP should take that first step.

The implicit suggestion here is that the solution to the country’s problems lies in striking the right bipartisan balance in plans and actions moving forward. I am skeptical about this claim.

Let me be clear, I think that Americans think that they want bipartisanship as a means to solving the country’s problems and that that is what these poll results show. But what I think is really at heart here, as the series title indicates, is that a majority of Americans feel their government is broken and they’re angry about it.

I would hearken back to the poll I noted last week around general levels of trust with regards to government and note one of the following findings,

When asked about Congressional job approval, only 15 percent of respondents thought Congress was effective, down 8 percentage points from January and near the low of 12 percent in October 2008, when the economy was on the brink of collapse and the George W. Bush administration was entering its final year in office.

The key word there for me is effective. When I see that a vast majority of Americans feel that their Congress — and I wouldn’t imagine the Senate fairing much better — is ineffective, what I read from that is a feeling that government is doing what it’s suppose to do. It isn’t getting its work done. Now, I admit that I’m reading between the lines here, so take this as you will.

But if we dig deeper into that poll, we also find the following results:

Understands your needs and problems: Obama – 60%, Democrats – 42%, Republicans, 35%

Meaning that a clear majority and a new majority of people polled think that the President and Democrats understand their needs and problems, but that an overwhelming majority feel that government has failed to be effective in addressing those needs and problems.

I would offer that part of what has been holding the President and Democrats back in terms of real, timely action and fulfilling things like mandates and campaign promises has been an over developed concern with achieving bipartisan consensus on various issues. In fact, in a Gallup poll back in September, a majority of respondents continued to credit the President with engaging in sincere bipartisan efforts.

The conclusion here — at least by my lights — is that efforts towards bipartisanship, if they haven’t hurt the effectiveness of government, certainly have not helped it. And if the American public is serious about wanting an “effective” government that can get things done, it needs to come to grips with the fact that that likely isn’t a bipartisan focused government that is primarily concerned with political kabuki.

In a follow up to my Ryan Sorba post of yesterday, I see that both Erik over at his True/Slant digs and Megan McArdle have taken roughly the same approach to the CPAC audience’s reaction to Sorba. Megan commented,

To me, the news story was this: Sorba got booed off the stage. At CPAC. This seems like great news. So why focus on the sad truth that yes, there are still homophobes out there? Maybe this is just heterosexual privilege, but this seems like a genuinely great moment in gay rights–and the gay conservatives and libertarians who sent met that clip seemed to take it as such.

And Erik noted,

That’s pretty astonishing if you ask me. While Andrew and others lament how awful conservatives have gotten lately, I see quite the opposite. Never before in the history of this country have gays and lesbians received such support from conservatives – and that support is growing at a pretty incredible pace.

Many of the commenters to the post have expressed their skepticism about how much this incident ought to count as a marker of change within American conservatism writ large. I think that skepticism is well founded and in light of Erik and Megan’s comments I would wend more closely towards that skepticism than describing Sorba speaking and getting booed off stage as “astonishing” or “a genuinely great moment in gay rights”. Especially insofar as that skepticism keeps us real about what kind of challenge stands in front of us and keeps us working hard .

It is, at best, a marker of what could perhaps best be described as the slow shifting in a general direction. That general direction is towards a greater acceptance of gay rights within conservative discourse, but the reaction to Sorba isn’t a slam dunk or a touchdown in terms of that movement such that I would call it describe it as Erik and Megan do.

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This video of Ryan Sorba going on a tirade about GOPride at CPAC has been making the rounds along with Alex Knepper’s interaction with Sorba after the “speech”.

Let me begin with the very bald fact that I found Sorba’s tirade repulsive and continue to be utterly gobsmacked about the state of gay rights in American politics. How a so-called beacon of freedom manages to get away with systemic attitudes towards gay men and women that are only marginally better than many of the “Islamo-fascist” entities it berates as fundamentally evil is outrageous.

But with that said, let me take a slightly different tack on the Sorba incident.

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The race is now on around what end of the political spectrum to place Joseph Stack, the clearly very disturbed man who crashed his single-engine plan into a building in Austin, Texas that housed IRS employees, against whom — the IRS — he apparently launched himself on a kamikaze mission yesterday. Opinions vary around whether Stacks motives for the act come from a right wing or a left wing bent and no doubt the debate will rage on given the broad nature of what is being referred to as Stack’s “manifesto”.

But at the end of the day, I’m with Michael Tomasky who writes that the point really is moot,

Stack was in fact angry at everyone. Angry at the IRS. Angry at the government generally. Angry at unions. But also angry at corporate greed and at rich people and at “thugs and plunderers” of various stripe.

Not only do I think the point is moot, I don’t think it matters nearly as much as to ask why Joseph Stacks did what he did. What were the conditions that lead to such a heinous and violent act?

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Kyle Matthews at Vogue Republic takes on Ezra Klein over modern liberalism and race/class.

Over at Bleakonomy, Dan Summers does the unthinkable!

Mike at The Big Stick explores a Presbyterian approach to education.

At The Politic, Jonathan McLeod challenges President Obama’s hubris regarding the stimulus.

UPDATE (from Mark):

I wanted to add a few more links.  There’s an excess of great stuff today on our blogroll.

Transplanted Lawyer, as always, has some outstanding stuff.  I’m this close to just mirroring his site instead of writing my own posts.  Anywho, do check out his posts on judicially-enforced religious indoctrination and, especially, Arizona’s pending anti-Sharia legislation.

Additionally, check out Jason Kuznicki on whether there is a place for gays in conservative politics.

I see that Erik took his Evan Bayh lessons from Ross Douthat who offered that,

America needs politicians who stake out interesting, politically-courageous positions on important policy questions. What it doesn’t need is politicians who occupy the safest possible ground on the great issues of the day, shift slightly left or slightly right depending on the state of public opinion, and then get congratulated by the press for being so independent-minded.

To which Erik quipped,

Reading this, it struck me that there really are two kinds of so-called “moderates” out there. Or maybe even more. Maybe the term “moderate” or “centrist” is just a blanket term used to either applaud or tear down people with whom we agree or disagree.

I love Erik, I really do, but we seem to be on very different tracks right now. Pivoting on Ross’ post by slicing and dicing the various ways in which one may or may not be a moderate is not really the point here.

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The capture of Mullah Abdul Ghani Baradar, the Taliban’s Number 2 man, is, undoubtedly, good news for the Obama administration in its attempts to fend off claims of being soft on terror and the like. But, as per his usual adroitness, Juan Cole has a good post up pointing out why the capture might not be the good news for US efforts in Afghanistan that proponents might like to make it out as. What I took to be the most important snippet,

There are four groups typically but inaccurately referred to as Taliban among Pashtun dissidents. They include Mulla Umar’s original Taliban; the Haqqani Network founded by Jalaluddin Haqqani, based in North Waziristan, which is now led by his son Siraj; the Islamic Party or Hizb-i Islami of Gulbaddin Hikmatyar based in Eastern Afghanistan; and the Tehrik-i Taliban Pakistan or Taliban Movement of Pakistan, whose leader, Hakimullah Mahsud, was reported recently killed by a US drone strike). For Mullah Omar’s organization, based in Karachi and Quetta, to suffer a severe setback would probably not have a huge impact on the other three, which operate relatively independently. None of the others is actually Taliban in the sense of seminary students or graduates of madrasahs among the Afghan Pashtun refugees in Pakistan.

This news is certainly bad news for, as Cole calls them, the “Old Taliban”, but the situation in Afghanistan remains greatly more complicated and challenging than much of American foreign policy discourse at home let’s on. By and large, it seems that US foreign policy remains under Obama, as it certainly has under all preceeding presidents, to be the continutation of Cold War mentality by other means. Which is to say that the realities of fourth generation warfare continue to seem largely opaque to the US strategic focus and there persists this idea that if specific bad guys, be they Al Qaeda or the Taliban, are beaten then the rest of the chips will inevitably fall into place, or something to that effect. But as the National Security Archive notes, even “the bad guys” have caught on to the folly of this thinking,

The December 1998 Embassy cable mentioned above notes that Omar “maintains an idiosyncratic, almost obscurantist, leadership style,” making policy decisions, “but generally leav[ing] the day-to-day matters to his key lieutenants.” In order to ensure his deputies remain “off balance” and do “not grow overly comfortable in their positions, Omar also rotates Taliban officials from post-to-post, apparently at a whim.”

I mean, call me crazy, but I find it hard to believe that Mullah Omar and other top “Old Taliban” officials haven’t contemplated the possibility of a capture of this magnitude and factored a needed exit plan itno their already much more decentralized organizational structure. Part of the shift in fourth generational warfare, as I understand it, is to recognize that the battle ceases only to operate in an exclusive military theatre and stretches out across a far broader spectrum of foray. It is this realization that I continue failing to hear in most overtly militaristic US foreign policy articulations and a big part of what informs my skepticism about the eventual outcomes.

Which is not to say that military means don’t play any role in dealing with groups like the “Old Taliban” and the others with which US and other NATO forces are dealing in Afghanistan and elsewhere and it certainly isn’t to suggest that I have a nice, clean alternative to the overwhelming challenges in dealing with the myriads of groups intent on doing harm to what amounts to a way of life. Nor is it to say that I’m inclined to dismiss the importance of the potential shift in Pakistani willingness to work in a more coordinated and proactive fashion with American and NATO forces. But is to say that I’ll continue not jumping for joy over new like the capture of Baradar so long as it is apparent, as far as western foreign policy goes, war remains the primary continuation of politics by other means.

You might have noticed that I’m on a bit of a hiatus right now. Maybe not, either way is fine. I’ve left the League in the capable hands of my fellow contributors to focus more of my time and attention on various other projects, links for which will be forthcoming as early as Monday.

Today; however, is a bit slow, so I thought I’d drop a quick note in response to Erik’s post of yesterday on the pettiness of current conservative politics, the effort and sincerity of which I appreciated greatly.

In that post, Erik wrote,

Populism, after all, is just a nice word for “mob”. If ever there was a thing that conservatives were meant to protect us against it is the rule of the mob. Conservatives were never supposed to be the mob, were never meant to be its advocates.

In so writing, I think that Erik has succinctly summed up why he, despite twists and turns, ducks, bobs, and weaves, and, ultimately, come what may, is a conservative at heart while at the same time articulating a (if not “the”) pressing Conservative dilemma: Erik and most other conservatives don’t trust people.

I don’t say that to be derisive or condemning, it is a perfectly acceptable position to take given the vagaries of common modern life. But this strikes me as one of the fundamental planks of conservative ideology, when the chips are down, people are not to be trusted. And so we must find ways of protecting ourselves from those that cannot be trusted, namely: everyone — excepting maybe family and close friends, and even then…

I note this primarily because one of the projects in which I am currently engaged is an exercise and exploration into precisely the opposite perspective: given the opportunity, people will, more often than not, demonstrate not only that they are trustworthy, but that they are quite capable of not just meeting, but exceeding your expectations. There are no golden rules here, of course. People cannot 100% of the time either be trusted or not trusted. But I am coming around to the idea that people can be trusted often enough that I find myself increasingly averse to precisely the terms that Erik choose to employ: mob or, in other popular lexicon, the masses.

My projects aside, I think this fundamental lack of trust presents, as I mentioned, a real dilemma for conservatives. Conservatives are supposed to be the advocates of liberty and the watchdogs of tyranny, they rail against the excesses and intrusions of government in all it’s myriad forms. And yet, articulations like Erik’s often break down into beliefs like: keep the government out of my life, except when it comes to those people, if government is supposed to do anything it is to keep me safe from those people! And, of course, the number of ways in which the actions of those people, the mob, the masses, intrude on one’s life are never ending, so the number of ways in which government must be utilized as the means by which the untrustworthiness of those people is mitigated grows in a proportional fashion.

Such is the way that — and believe the legislative trajectory of conservatism bears this out — advocates of liberty and limited government wind up constantly finding new ways to use government as a means of guarding against the excesses and dangers of the mob and, presto change-o, government continues unfathomably to grow under their direction. Call it subtle governmentalism, conservatives claim to be thoroughly averse to government excess and speaking loudly and courageously against it in public, but in private enable a justifyng cognitive dissonance to grow it, time and time again.

At least liberals are upfront about their belief that government is a useful means of providing the needed measures for society, sometimes for the mob/masses and sometimes guarding against. Not so for conservatives who are locked into this sort mistrust-limited government finger trap that seems inevitably to render the majority of their rhetorical flourish empty when the rubber hits the road.

Again, I’m not condemning here, we all have our catch-22s with which to deal. But if this isn’t the major roadblock for conservatives and conservatism in contemporary political practice, it strikes me as a fairly significant one.