Finally, to go back to a previous statement of yours, where you say that -if the 2004 election were held now-- you wouldn't vote for Bush now, but would not vote for Kerry either. Would that be true even if your vote would determine which of those two would be president, and if your write-in of another (non-candidate) would hand the presidency back to Bush? And if so, would I be correct in inferring from this that, while you disapprove of Bush's usurpations, you do not believe that this Bush assault on the Constitution represents a truly dangerous threat to the future of our democracy? (I realize, in suggesting such an inference, I am assuming both that you do not think that Kerry would be an equal threat to the Constitution, and that, like me, you weigh CONSEQUENCES heavily in evaluating right action.)
Fein:
I doubt whether Hamden will be a landmark on executive power in times of war. It could pivot on the retroactivity of the Graham-Levin bill that funnels all habeas corpus proceedings to the U.S. Court of Appeals for the District of Columbia Circuit from the Civilian Status Review Tribunals in Gitmo. On the merits in the D.C. Circuit, I concurred with the conclusion of the majority. Al Qaeda fighters are not POWs under the Geneva Convention because they lack the four defined earmarks to qualify for protection, including carrying arms openly and responding to a hierarchy of military authority. The U.S. Supreme Court in Ex Parte Quirin has already approved military commissions for the trial of war crimes, as opposed to court marial proceedings with modestly greater procedural protections, and the military commission created by Bush #43 is indistinguishable from that created by FDR for the Nazi saboteurs. Judge Ray Randolph, who wrote for the majority in Hamden, was not appointed by Bush #43.
I do not believe human nature has since the origin of species. But cultural attitudes can blunt but not eliminate its worst elements. Although every generation has sported its Benedict Arnolds and Aaron Burr's, I do believe that in the United States at present a high water mark of moral invertebracy has been reached. For example, when I arrived at the Department of Justice 36 years ago, I soon witnessed the resignations of Attorney General Elliot Richardson and Bill Ruckelshouse over Nixon's order to fire Archibald Cox. In contrast, Clinton's and Bush's inner circles and Cabinet remained silent amidst palpable assaults on the rule of law indifferent to Burke's admonition that evil triumphs when good men and women do nothing. Richardson was acclaimed. Socrates soon had a monument constructed to celebrate his moral courage after the hemlock. Today, both would probably be as naïve utopians.The best explanation I have for my devotion to intellectual honesty and principle is my early adulation of Socrates. His defense to the Athenian jury was spellbinding. The unexamined life is not worth living. Never cease asking not whether something promises riches or power or glory, but whether it is moral and the thing you would be eager to enshrine on your gravestone. Taking the hemlock gave Socrates immortality, and his judges ignominy. Without moral and intellectual courage, we would still be living in the Stone Age. I have always felt deeply indebted to our ancestors who sacrificed so much in the name of free minds and self-government. I have previously written that it remains to us to consecrate what they have done, and to act with such moral vision that if the nation endures for ten thousand years nature will still stand up and say to all the world, this was mankind's finest hour. Between ashes to ashes and dust to dust, there is no higher calling.
With regard to voting in 2004, I would never know whether a vote for Kerry as opposed to a write-in would be the vote that defeated Bush. But if knowing what I know now about Bush and knowing that my vote alone would determine the outcome in 2004, I would vote for Kerry in lieu of a write-in.
Schmookler:
I'd like to follow up on several threads in our discussion.
Let's go back to those 20 people on your hypothetical list-the learned conservatives who you would have thought, in 2000, would have spoken out against a usurpatious president of their own party, but have not. Have you had genuine interactions with some of these people over these issues? If so, what have these been like?
In particular, I'm interested in knowing whether they see what you see -the presidential lawlessness, and the dangers arising from that-and sell their souls anyway (to use your phrase), or whether they believe you are mistaken in your perceptions, and think there's no illegality, no assault on the Constitution?
Also, would you say something about what the consequences have been for you of your speaking out as you have? We've touched upon the fact that -unlike Socrates and Thomas More-you've not had to pay with your life for acting in accordance with your principles. But you've also mentioned that "learned conservatives generally remain silent because their law and lobby practices require them to maintain access to the Bush administration," suggesting clearly that there would be a price to pay for speaking out. What kind of price have you had to pay?
Next, I don't think you've indicated -in our discussion here at least-just how great a danger you think this presidential lawlessness poses to our country, to our future freedom and the continuation of the American form of government as we have known it. So I would appreciate your addressing that question. The way you linked, in our most recent exchange, the Clinton and Bush administrations - referring to how "Clinton's and Bush's inner circles and Cabinet remained silent amidst palpable assaults on the rule of law"-has raised in my mind the question of whether you think that the likes of what's happening now happened also under Clinton. More generally, as I've been claiming for some while now that the Bush administration's "assault upon the Constitution" is something unprecedented -in degree, in its systematic nature-- in the previous two-plus centuries of American history, I wonder if you would concur with that assessment.
Finally, I'd like to try to clear up my confusion about what you were saying initially about the Hamden case.
I began by asking you to address concerns that Roberts and Alito (whom you'd mentioned favorably) might be Bush's allies in the usurpations that concern us both. You concluded your response to that inquiry by saying that," We should soon know of their predilections in the pending Hamdan case." I thought that you were saying there that what they do in that case will give us a good sign of whether those concerns are well-founded. Did I misread your intent there? I ask that because when I asked what would be the signs from the upcoming Hamden decision would confirm your expectation that neither Roberts nor Alito "will bow to Bush's legal outlandishness," you responded with a paragraph that seemed to leave unaddressed that part of my inquiry about this case, except perhaps for the opening sentence in which you said, "I doubt whether Hamden will be a landmark on executive power in times of war," which seemed like it might be saying that Hamden won't give us any indication after all.
So I am left wondering: do you think we'll learn more from this case about whether these two judges "will bow to Bush's legal outlandishness," and if so can you give us some idea of what to look for that will tell us whether they are indeed bowing (as some fear) or whether they are the conservatives of integrity that you believe them to be?
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