Wednesday, February 28, 2007

Issues Demanding Action

It's been a while since I posted to Vox Libertas. Most of that time has been spent reading and watching congressional hearings and small symposiums. This posting will attempt to pull together some of what I've learned and to point out both specific and general sources that I think will be of interest and use to you, dear readers.

Ambassador Freeman Tells It Like It Is

Perhaps the strongest piece I read was a speech made by retired ambassador, Charles W. Freeman, Jr. to a gathering of DACOR (Diplomats and Consular Officers, Retired). The speech is long and rich, as you might expect when a highly skilled and experienced diplomat addresses his peers. I will therefore excerpt and summarize, but please read the whole thing. It is available at the Middle East Policy Council web site. Freeman was Reagan's translator on his trip to China and the ambassador to Saudi Arabia during the Gulf War, among other things. He has served in China, India, Thailand, Africa, the Middle East and Europe.

The man clearly loves the country he has served so well, and after a glowing summary of our successes and contributions to world civilization in the 20th century, he says baldly,

Since 9/11 Americans have chosen to stake our domestic tranquility and the preservation of our liberties on our ability – under our commander-in-chief – to rule the world by force of arms rather than to lead, as we had in the past, by the force of our example or our arguments. And we appear to have decided that it is necessary to destroy our constitutional practices and civil liberties in order to save them.

He then, quickly summarizes the same Robert Harris account (see "The 'war on terror' that ruined Rome" in the Herald Tribune) of the beginning of the end of the Roman Republic that inspired some of my rhetoric in The Real Tragedy of 21st Century America. The parallels between Rome's reaction to piracy and kidnapping in Ostia in 68 BC, which ultimately led to the Republic falling into Empire, and our reaction to 9/11 is a sobering cautionary tale.

From the first few seconds that I heard George W. Bush speak, long before I knew what his politics were, I was dead set against the man for the simple reason that he set off the "Beware! Lying arrogant bully!" alarm that a childhood featuring broken bones developed in me. Thus, Freeman's comment that

There has been little room for such measures – for diplomacy – in the coercive and militaristic approach we have recently applied to our foreign relations. Much of the world now sees us as its greatest bully, not its greatest hope.... Thus, the neglect of both common courtesy and diplomacy fosters violent opposition to our global preeminence in the form of terrorism, nuclear proliferation, and war.

struck a particularly painful cord with me. He goes on to point out with clarity how little the current administration and the public that they mislead understand war or diplomacy:

The common view in our country that diplomacy halts when war begins is thus worse than wrong; it is catastrophically misguided. Diplomacy and war are not alternatives; they are essential partners. Diplomacy unbacked by force can be ineffectual, but force unassisted by diplomacy is almost invariably unproductive.

He's too wise to use dreaded "died in vain" phrase, but he does point out how the lives of our troops are doing little to actually achieve our national priorities and why,

Every death or crippling of an American on the battlefields of the Middle East is a poignant reminder that, in the absence of diplomacy, the sacrifices of our soldiers, sailors, airmen, and marines, however heroic, can neither yield victory nor sustain hegemony for the United States. A diplomatic strategy is needed to give our military operations persuasive political purposes, to aggregate the power of allies to our cause, to transform our battlefield successes into peace, and to reconcile the defeated to their humiliation.

He moves through a laundry list of our foolish and dangerous military and diplomatic mistakes and takes us from the devaluing of our diplomatic currency to the weakening of the power, respect and desirability of our actual currency, the dollar and the devastating impact that that can have on our mortgaged future.

He ends with a list of principles which should guide us in recovering our nation. His full text is very well worth reading, but here I have summarized, taking just the first sentence or two from each point:

First, an America driven by dread and delusion into the construction of a garrison state, ruled by a presidency claiming inherent powers rather than by our constitution and our laws, is an America that can be counted upon to respect neither the freedoms of its own people nor those of others.

Second, it is time to recognize that freedom spreads by example and a helping hand to those who seek it. It cannot be imposed on others by coercive means, no matter how much shock and awe these elicit.

Third, credibility is not enhanced by persistence in counterproductive policies, no matter how much one has already invested in them. The reinforcement of failure is a poor substitute for its correction. Doing more of the same does not make bad strategy sound or snatch successful outcomes from wars of attrition.

Fourth, we must recover the habit of listening and curb our propensity to harangue. We might, in fact, consider a war on arrogance to complement our war on terror.

And finally, he exhorts us to change with the following,

Guantánamo, AbuGhraib, the thuggish kidnappings of "extraordinary rendition," the Jersey barrier, and an exceptional aptitude for electronic eavesdropping cannot be allowed permanently to displace the Statue of Liberty and a reputation for aspiration to higher standards as the symbols of America to the world. To regain both our self-respect and our power to persuade rather than coerce the world, we must restore our aspiration to distinguish our country not by the might of its armed forces but by its civility and devotion to liberty. The best way to assure the power to cope with emergencies is to refrain from the abuse of power in ordinary times.

But please don't trust my poor powers of summary and explanation. Please, read the words of this man who has so long and so capably served our country, who knows the arts of diplomacy, law and governance so much better than our current leaders. And then talk to your friends and family. Get out the word and save the Republic.

JAGs Judge the Military Commissions

In the Jurist, University of Pittsburgh's on-line law journal, two retired lawyers from the Judge Advocate General's corps, now law professors, wrote an analysis entitled "Military Commissions: War Crimes Courts or Tribunals of Convenience?". This article is shorter than Freeman's, and more focused, but still strikes at the heart of what's going wrong in this country. Geoffrey Corn served as a tactical intelligence officer, chief prosecutor and finally the Special Assistant for Law of War Matters to the U.S. Army Judge Advocate General, and so is highly qualified to address the issues raised by the MCA and the Manual for Military Commissions. He and Prof. Hansen specifically address the following question:

What is the purpose of creating these tribunals? Are they intended to serve the legitimate purpose of leveraging the unique competence of the profession of arms to sit in judgment of alleged violations of the laws of war? Or are they intended to serve the much less credible purposes of simply providing a more “convenient” forum to adjudicate crimes that do not fall into this category, or even worse did not even exist when the commissions were created?

and come to a very unfortunate conclusion.

They start by citing the MCA's own declared purpose: to “codify offenses that have traditionally been triable by military commissions” and contrast that with the actual offenses enumerated and how they differ from those in the Uniform Code of Military Justice, the Manual for Courts-Martial and the international law of war. While it is worthwhile reading their analysis, one example in the simplest of terms will illustrate.

One of the crimes explicitly punishable by death is the intentional killing of a "protected person". The way that the new Manual for Military Commissions differs from the UCMJ, MCM and international law is that whereas they require proof that the defendant knew that the victim was a a protected person (innocent civilian, basically) the new manual merely requires that he "should have known". This raises negligence rather than actual intent to the level of capital crime.

The conclusion of their article reads:

The nature of the offenses established by the MCA and the apparent use of the MMC to modify the nature of these offenses is both telling and troubling. By disconnecting the realm of available offenses from a solid mooring to the laws of war, the military commissions are invariably disconnected from the pragmatic foundation that has historically justified such tribunals. No matter what procedural changes may have been implemented by the MCA, this most fundamental question about the legitimacy of these tribunals will persist until the charges genuinely reflect that law from which the authority for such tribunals is derived. Until then the military commissions will be rightly viewed as a tribunal implemented for the convenience of the government.

This is a stinging indictment of the purposes of the MCA, its military commissions and manual, made not by liberal civilians, but ny experience JAG lawyers, one of whom was the Corp's expert on the Law of War. Again, read their article, tell your family and friends.

The MCA and Habeas Corpus

An interesting contrast of opinions can be seen by comparing another Jurist article and one that appeared in the Writ, with a recent discussion held at the Duke University Law School of the outstanding legal issues arising from the MCA.

In her article "Why Boumediene Was Wrongly Decided", Marjorie Cohn concludes that the recent ruling by the DC Circuit Court of Appeals upholding the stripping of habeas corpus under the MCA was erroneous and is likely to be overturned by the US Supreme Court. She bases this on specific Supreme Court case law. The two main grounds are that the Court has indicated that the US has sole jurisdiction over Gitmo, and the Combatant Status Review Tribunals and other MCA processes are not an adequate substitute for habeas corpus, as demanded by existing precedent.

In contrast, the participants in the February 12 Duke discussion "The Military Commissions Act of 2006: Outstanding Legal Issues", which is available on video, and audio versions, seem a lot less certain that the MCA will be overturned, given the complexity of the issues and Congress's fairly obvious intent in its passage. The video is well worth watching and is moderately clear and accessible. The discussion took place before the DC court ruled on
Boumediene, but their analysis does not seem to preclude much of the reasoning of the Court. One panelist suggests that the ultimate decision on the applicability of Constitutional protections at Gitmo will depend on how Justice Kennedy, as the swing vote reasons, when the cases get to the Supreme Court.

Even more recently, Michael Dorf has stepped into the question in a commentary in The Writ. Like Prof. Cohn, and the Duke participants, Dorf says that it is up to the Supreme Court to determine the extent of habeas corpus. He is less certain of the outcome but offers substantial reasoning as to why he hopes that they will finally address the core Constitutional issues and do so in light of modern circumstances and law. He says,

Those who favor reading the Constitution to mean exactly what it was generally understood to mean at its adoption frequently complain that, if judges depart from the original understanding, then they have no fixed standard by which to ascertain constitutional meaning. The charge, however, is doubly misleading.

First, as the disagreement in Boumediene itself illustrates, discerning guidance for modern controversies from Eighteenth Century sources that were contested even in their day, is hardly a determinate exercise that leads to a single incontrovertible result. Second, one can find functional guideposts for modern understandings that also effectively constrain conscientious judges' decisionmaking.

Collectively, these three sources provide an excellent understanding of the issues that Freeman so passionately tells us is of vital importance. They can be a bit challenging at times, but are well worth the attention of the informed citizen, and if we are not going to just allow politicians with increasingly unlimited power to make all our decsions for us, we must become well informed.

General References

I often urge Vox Libertas readers not to believe me, but to inform themselves. Let me suggest here a couple of resources that I find very helpful in this:

  • The Jurist, The University of Pittsburgh's on-line legal journal and news feed. Specific resources there include:
  • The FindLaw site, including:
  • The Founders Constitution, an excellent collection of the historical documents that informed the decisions of the authors of the Constitution and shed light on their reasoning.
  • Thomas, the Library of Congress's searchable database which contains the text of bills and resolutions and their history as they move through Congress.
  • The White House's news page – the full text of all the Decider's signing statements and press releases, videos of many of his speeches and appearances. One way or the other, an important site.
Keep informed. Discuss the issues with family and friends. Be the Voice of Liberty.

Tuesday, February 20, 2007

The "Mary Cheney" Question Redux

I have recently started posting Vox Libertas on The Daily Kos, and since I had a backlog of blogs, I have been revising my older works for posting on Kos. The first of these consisted largely of a merging of my The Issue of Habeas Corpus and Alberto Gonzalez: “There is no expressed grant of habeas in the Constitution" postings into a singal unified Kos Diary called Habeas Corpus Redux.

My latest Kos Diary is an update of Just What Is "Out of Line"?, which I've called The "Mary Cheney" Question Redux. This time I've added substatntial new material, dealing with the columns of Leonard Pitt, jr. (Pulitzer Prize-winning columnist at the Miami Herald) and the issues he raised there. Feel free to visit dKos and recommend my diary if you are a Kos reader.

I did edit the previously published material some, but the bulk of the changes were additions at the end of the posting. For those not interested in going over to the Daily Kos version, here is most of the new material...

At the time that I wrote the above, the media had largely ignored most of the questions that the various situations raised. A few days later, Leonard Pitts, jr, of the Miami Herald addressed the issues head on. Back in December, Pitts had written:

I find it telling that Vice President Dick Cheney hews to the hard conservative line on virtually every social issue, except gay marriage. It is, of course, no coincidence that Cheney has a daughter who is a lesbian. Which tells me his position is based not on principle but, rather, on loving his daughter. It is a fine thing to love your daughter. I would argue, however, that it is also a fine thing and in some ways, a finer thing, to love your neighbor's daughter, no matter her sexual orientation, religion, race, creed or economic status—and to want her freedom as eagerly as you want your own.

After the abortive Situation Room interview, he wrote a column in which he managed to offend both the right and the left. On the matter of the propriety of the question, he sided with Chrissy Gephardt, and disagreed with Mary Cheney writing,

She is wrong. What Mary Cheney has in her womb is both a child and a political statement. One is reminded of how a simple act like drinking from a public fountain once became a political statement because some people said other people ought not have the right to do such things.

Similarly, although women all over America are carrying babies right now, Mary Cheney and any other lesbian woman who does the same unavoidably makes a political statement. Because some people believe they ought not have the right to do such things.

He also disagreed with Vice President Cheney's claim that Blitzer was "out of line."

He, too, is wrong. The Bush administration has used gays as Southern politicians once used (and often, still do use) blacks -- as scapegoats, boogeymen, distractions. Largely because of that, Heather Poe will have no legal parental rights to ''her'' child.

Dick Cheney is that administration's No. 2 official. So there is nothing ''out of line'' in asking him about any of this.

At the same time, perhaps surprisingly, he agreed with at least part of James Dobson's criticism of Mary and Heather's decision to have a baby specifically because he does see the baby as a statement, a tacit statement that fathers don't matter.

When this agreement resulted in Pitt being accused of being an anti-gay bigot, he wrote a second column explicating his position. The author of Becoming Dad: Black Men and the Journey to Fatherhood, Pitt's major concern is what he sees a diminution of fatherhood and the disintegration of the family, especially the black family:

But as 16 percent of white kids and a whopping 51 percent of black ones grow up father-free, facing all the difficulties that portends, I definitely have something against the idea, whether advanced by straight women or lesbians, that father is unnecessary, that so long as there's some uncle around to show a boy how to hit the mark in the toilet, everything is hunky dory.

Like Dobson, he cites

a growing body of research ... which tells us the child raised without his or her biological father is significantly more likely to live in poverty, do poorly in school, drop out altogether, become a teen parent, exhibit behavioral problems, smoke, drink, use drugs, or wind up in jail.

In her own response to the Situation Room interview, Mary specifically addressed these claims, saying:

"Every piece of remotely responsible research that has been done in the last 20 years on this issue has shown there is no difference between children who are raised by same-sex parents and children who are raised by opposite-sex parents. What matters is that children are being raised in a stable, loving environment."

As it turns out, both sides have a certain point. Dobson and Pitts are correct. Children from "broken homes" and the children of poor unwed mothers are at a great disadvantage, but what they are failing to recognize is that the world is far more complex than the simple black and white of their world view. That single mothers are often poor, unable to spend as much time as they would like or ought with their children and the trauma of divorce, death and desertion are all factors. At least as importantly, the world isn't divided into 2-parent+kids households and broken homes, and neither of those is the historical norm.

Most of humanity has lived in multi-generational extended families. One could with some justice argue that grandparentless households were just the first step on the path to the fatherless households. Beyond that, while the human lifespan has been three score and ten--seventy years--since Biblical times, many people died before reaching that age, and so these extended families were often missing some members, mothers, fathers, one or more grandparents or had substitutions, stepparents, aunts and uncles and such. Even when everyone was alive, often family members had to be away from the family for extended periods. As a descendant of generations of sea captains, I am well aware of this.

Families have always come in a wide number of shapes and sizes. Focusing on the 1950s Leave It To Beaver husband, wife, two or three kids and a dog model as the only healthy configuration is historically, sociologically and psychologically unjustified. As I said, Dobson and Pitt are correct, a healthy, rich family life is important to children. They are wrong in their narrow view of the limits of that life. And what we need as a society is an examination, an honest evaluation of what we can do to insure that as many families are as healthy as they can be.

And it is very very far from certain that denying Mary and Heather the right to build the best family that they can will help. It is almost certain that criticizing them in Time magazine, and condemning their family as unhealthy will not make life any easier for their child. It is unlikely that failing to defend your daughter's family when they are publicly condemned will help, or that the families of millions of other gays and lesbians will be helped by public figures failing to stand up for theirs.

This country desperately needs an actual public discussion of values and issues, not an exchange of hateful barbs and name calling, but a give and take wherein people actually listen and strive to learn. Wolfe appears to have tried to engage in such a discussion if rather crudely and half-heartedly. John Stewart and Chrissy Gephardt actually did a credible first step. Leonard Pitts wrote thoughtfully, and shows signs of being the sort of person who can listen.

One columnist and a comedy show is still a pretty weak showing though. As John Edwards is fond of saying, We're a better country than that. Or we can be.

Wednesday, February 14, 2007

A Government of Men, Not Laws?

One of my concerns regarding the state of the Republic is with what seems like a trend towards a government of men not laws, in a reversal of one of our most important principles. Here's an example from Spiegel Online's interview with Tyler Drumheller, former chief of the CIA's Europe division (emphasis mine):

SPIEGEL: So there was no clear guidance of what is allowed in the so called "war on terrorism"?

Drumheller: Every responsible chief in the CIA knows that the more covert the action, the greater the need for a clear policy and a defined target. I once had to brief Condoleezza Rice on a rendition operation, and her chief concern was not whether it was the right thing to do, but what the president would think about it. I would have expected a big meeting, a debate about whether to proceed with the plan, a couple of hours of consideration of the pros and cons. We should have been talking about the value of the target, whether the threat he presented warranted such a potentially controversial intervention. This is no way to run a covert policy. If the White House wants to take extraordinary measures to win, it can't just let things go through without any discussion about their value and morality.

This jumped out at me in part because of something I'd heard from the Attorney General a couple of days earlier while watching video of the January 18 Senate Judiciary Committee hearing, “Oversight of the U.S. Department of Justice”:

LEAHY: But before I turn it over to Senator Specter, let me mention that Senator Specter and I joined together in asking the chief judge in the FISA court for copies of the decision of that court that you announced publicly on Wednesday. The court’s apparently willing to provide these decisions to the committee. You have no objection for that, do you?

GONZALES: Senator, I think that’s a decision that I would like to take back to my principal, quite frankly.

[... text elided ...]

LEAHY: I don’t think I fully understand that. Are you saying that you might object to the court giving us decisions that you’ve publicly announced? Are we a little Alice in Wonderland here?

GONZALES: I’m not saying that I have objections to it being released. What I’m saying is it’s not my decision to make.

The first case was pretty blatant. Drumheller is explicitly calling out Rice for being more concerned with the President's opinion than principles or process. The second is a bit more subtle. Senator Leahy is focusing on the apparent contradiction of Gonzales announcing the decision and then objecting to the court sharing it. What bothers me is that the Attorney General cannot make such a simple decision on his own. Please note that the decision to release the decision is the court's and not the AG's. Leahy is only asking the AG's opinion on the court's decision.

Note, too, the language that Gonzales uses. He calls the President "his principal", as if he is still the White House Counsel or the President's personal attorney, rather than the nation's chief law enforcement officer, the head of the Department of Justice and the nation's attorney.

I'm sure that many will think I'm making a mountain out of a mole hill, but these statements aren't isolated, they are part of a larger pattern, one that involves controversial political theory, and questionable practices. They tie to theories of Presidential "inherent authority", the doctrine of the "unitary executive", and the President's recent actions.

Let me outline this greater context in hopes of clarifying the reasons for my concern when I heard the above comments.

Inherent Authority Theory

The theory of the president's "inherent authority" as Commander in Chief has been put forth multiple times, in somewhat different forms by John Yoo of UC Berkley. Most famously and accessibly, he put it forth in the memos that were issued in the weeks after 9-11 which asserted that the President had the authority he needed to conduct military and intelligence operations as he saw fit in the War of Terror, and then in his book The Powers of War and Peace.

The basic thrust of this theory is that rather than being a coequal branch of government with the legislative and judicial branches whose powers are limited to those expressly granted to them, the President as the Chief Executive and Commander-in-Chief has inherent unenumerated "inherent powers". As an example of this, take the following from the Sep 25, 2001 memorandum:

This difference in language indicates that Congress's legislative powers are limited to the list enumerated in Article I, section 8, while the President's powers include inherent executive powers that are unenumerated in the Constitution.

So, it would seem that when We the People did ordain and establish the Constitution, we did so in a way that modeled the role of the President as Executive on that of the King of England. The notion that the President wields powers that are assumed by his Executive and military roles is tied fairly closely to another theory that the administration has been promulgating—that of the "Unified Executive".

Unified or Unitary Executive Doctrine

This theory proposes that, in the President's quaint wording, he is the sole "decider" of the Executive branch, that all executive authority and responsibility resides in him, and that the rest of the Executive branch are merely his employees, whom he directs. This has a number of implications. One is that one agency or department in the Executive branch cannot sue another, since there would be only one party to the suit—the President would be suing himself! Another is that the Legislature cannot direct Executive branch departments or agencies, that would usurp the President's responsibility to supervise his direct and indirect reports. Thus, when Congress charges a particular agency to carry out a specific law or to report back to them, they exceed their authority. Alternatively, they cannot under this theory set qualifications on who can fill posts that they create. That would interfere with his right to hire whom he chooses.

If the Inherent Authority theory treats the President as if he was King George III, the Unified Executive comes closer to The Sun King. While it falls short of Louis' claim, "L'etate, c'est moi" ("I am the State"), it basically declares that the President is the Executive Branch, and all dealings between the Legislature and the Executive go through him. Moreover, in order to take care that the laws and Constitution are faithfully executed, it is his duty to interpret the Constitution, overthrowing the principle of Judicial Supremacy established in Marbury v. Madison.

Put together, we end up with a picture of a Commander in Chief and Chief Executive who is the sovereign head of the executive branch, and who exercises inherent powers beyond those explicitly enumerated in the Constitution.

Executive Order 13422—"Policy Officers"

Let us turn now, not to the theory that the President and his administration operate under, but some of the actions they and the Republican dominated Congress have taken, and how those expand his powers, as if the inherent powers of the unitary executive were not enough. One that was being debated in two Congressional committee hearings Tuesday, is Executive Order 13422 which revises 12866 which sets out how regulations established by federal agencies are planned and reviewed. On the whole, much of 12866, both before and after amendment seems like good governance, and an attempt to control and rationalize the many shelf yards of federal regulations.

But one major change is that whereas the original order created the role of "Policy Officer" reporting to the heads of major agencies, the new version mandates them for all agencies, requires that they be someone appointed by the President (without requiring that they be approved by Congress) and reporting to the President. Further, it specifies that that the Policy Officer must approve of each regulatory effort before it is put on the agency's schedule and each regulation before it is published.

The Policy Officer changes have two basic effects, they give the President more direct control of the executive, allowing him to specify how Congress's laws are enacted, which is in keeping with the Unitary Executive model. It also shifts control away from the professionals in the agency's area of expertise to political appointees. To an extent, this shifts us in the direction of Soviet apparatchiks a model which while it was intended to insure that Party goals and priorities were met, resulted in a marked decrease in the effectiveness of the Soviet bureaucracy.

Changes to "The Insurrection Act"

The second action that fits into this pattern of centralized Presidential control is to be found in H.R. 5122, the "John Warner Defense Authorization Act of 2007", which among a great many other things amended the Insurrection Act, which along with Posse Comitatus controls and limits the President's use of the military within the United States. The changes are worded as a collection of edits which alter a substantial fraction of the wording of section 333 of the Insurrection Act, and so I found it helpful to create a marked-up version of §333, showing the changes. Also helpful is a flow chart in the Wikipedia entry for the insurrection act.

As either of these should make clear, the major change is to expand the circumstances under which the President can deploy the armed forces and take direct control of the National Guard away from the Governors who normally command them. In the past, he could do so only in cases of "insurrection, domestic violence, unlawful combination, or conspiracy". Under the new wording "natural disasters, public health emergencies and terrorism" are added to the list as is the wildcard "other circumstances". Other changes include specifying that the President can use the armed forces, including the National Guard, in US territories as well as the states, explicitly naming the National Guard rather than referring to "the militia" and what appear to be minor textual changes.

With a broad enough interpretation of "other circumstances" and "opposes or obstructs the execution of the laws" or "impedes the course of justice", the President can pretty much deploy the military domestically whenever he feels it necessary and become the sole military commander in the area, federalizing the National Guard. So long as you trust the President, this isn't such a bad thing. But as other nations have learned, elected officials are not always what they seem.

Final Questions

The final result of these theories and changes in the law is that we have a President who is the sole decision maker in a unified hierarchical executive branch with inherent unenumerated powers as Commander In Chief and Chief Executive upon which Congress may not intrude, who is responsible for interpreting the laws and Constitution and how they are carried out, who is authorized to take sole command of all federal and state military force and use it domestically in any circumstances where he believes that justice or the execution of his interpretation of the laws is impeded.

The questions that we must now ask ourselves are

  1. What exactly is the difference between "the decider" as constituted above and "dictator"?
  2. Do we believe that this President and all of his successors are trustworthy enough to be given this power?

Sunday, February 4, 2007

Just What Is "Out of Line"?

One of the things that led to the creation of this blog was my conviction that new media and social networking could be a powerful tool for defending democracy and liberty in the modern age. In part, I came to this conviction because of the roll of Enlightenment Era "new media and social networking" in the creation of this country and in part it was due to... The Daily Show.

At the time, news had just broken that a study had shown that The Daily Show had just as much substantive content as the network evening news. Combined with studies that showed that about as many 18-29 years got their news from it as from the network news and that Daily Show viewers tended to skepticism about government and the news media, but confidence in their own political understanding, it gave a picture of a generation whose politics were substantially influenced by a fake news show on a comedy channel.

While many in my generation view that notion with considerable trepidation, I took it as essentially good news. The combination of faith in themselves and skepticism of those in power could result in voters who are more concerned with liberty, civil rights and such. The down side is that the skepticism could discourage them from voting, but that's a problem that can be worked, and in future posts I will address some of the ways that I see of doing this.

The Daily Show also provides another valuable service. It puts the mainstream press into a sharp and critical light. Probably the best known example of this is the president of CNN, Jonathan Klein's citing of Jon Stewart as one of the causes for the cancellation of Crossfire, a show that Stewart appeared on, accusing them of being bad for America, and that as a news show, he at least, had higher expectations of them than they did, expectations the failed to live up to.

Another example came up this week. Last week Wolfe Blitzer on his show The Situation Room had tried to question Vice President Dick Cheney on the negative statements made by his supporters regarding his lesbian daughter's pregnancy. The VP objected strenuously to the question even being asked. This week, Stewart did a long segment on whether the question was legitimate.

Chrissy Gephardt on The Daily ShowThe first part was a typical Daily Show satire, but the second half was an interview with Chrissy Gephardt, the openly gay daughter of Dick Gephardt who claimed it was a perfectly legitimate question. The way he conducted the interview was interesting and relevant. (If you haven't seen it, take the time to watch it at Comedy Central or iFilm.) Jon never actually mentioned that Chrissy was gay. Instead, he said that like Mary she is a political activist and the daughter of a national political figure, and interviewed her on how hard it is being the daughter of a politician, whether he chose to be a politician or was born that way, and whether politicians should have children. He then asked her if Wolfe's question was fair, and when she replied that it was, he framed the question of the hypocrisy of not defending people who are like your daughter in terms of the "hypothetical" case of segregationist Strom Thurmond having a black daughter.

Turning the religious right's question of whether gays and lesbians should have children and the claim that the lives of such children are unfairly difficult around is both good humor, and as satire makes the point that who we are and the decisions we make can make life hard for our children, but that what is important is how we treat them, how we treat others, and whether we are honest and consistent in our beliefs and actions. It also kept the piece being about the issues rather than on who Mary and Chrissy are.

This segment stands out because:
  1. Jon asked a question that the mainstream media should have, but didn't.
  2. Chrissy was articulate, funny and made the point excellently.
  3. He assumed that the viewer knew that Chrissy was a lesbian and that Thurmond actually had a mixed-race daughter. It treated the audience as knowledgeable and intelligent.

What we have here is a "fake news" comedy show that treats its viewers and guests with respect and asks questions that mainstream journalism ought to be asking, but too often aren't. On the one hand, the good news is that someone is asking the questions and someone is getting through to young people. But that leaves us with the question of why it is up to a comedy show to examine the appropriateness of Wolfe's question? Many news media reported that Cheney rebuffed Blitzer's question as "out of line", and video media showed Wolfe's chagrin and awkward backpedaling, which carried the obvious implication that he recognized his guilt. But few brought up the issue of whether the question was actually out of line, or whether the criticisms, by people who helped get Cheney elected, of his daughter weren't even more out of line, or needing response.

A couple of days later Mary Cheney also criticized Blitzter's question and the media carried that, usually highlighting her statement that her baby "is a blessing from God. It is not a political statement. It is not a prop to be used in a debate by people on either side of an issue". Interestingly, that phrasing appeared within hours of Cheney's appearance on The Situation Room in a discussion of the show on an internet gossip site (emphasis is mine):

15. Cheney is obviously ashamed of his daughter, despite what he proclaims or he wouldn't have such a hissy-fit when asked a question like this. Cheney's in the public eye and should be accustomed to being asked this type of question repeatedly. It is an interesting news item. Here's a man who's aligned with a party that hates homosexuals, and the #2 man has a daughter that is gay. I found it rather interesting to hear it referred to on a news program some weeks back that Cheney's daughter's partner was the "wife", yet Cheney's daughter is the one pregnant. I guess in a confused relationship like this, gay women as husband's are now capable of having children; sort of like being the mom and dad rolled into one. I'm sure the kid will be loved, but it's also going to grow up really confused, which will lead to other psychological issues. Pity the child. Cheney's daughter is only concerned about herself and her partner; afterall, the kid is merely a political statement and a liefestyle choice prop.

Posted at 6:47PM on Jan 24th 2007 by TH

I suspect that it is no coincidence that when Mary spoke out a few days later she used the same wording as this comment. I suspect that it or a repetition of it reached her ears and was very hurtful, with its claim that her father is ashamed of her, that the party that both he and she campaigned for hates homosexuals, and that she is moved by selfishness rather than love.

Given that it led to such hurtful things being said, mightn't there be some truth to the claim that the question is over the line and shouldn't be asked? Doesn't she have a point that she deserves some privacy and respect? Yes. Those are valid points, and deserve consideration. But, the counterpoints that she is open about her sexuality, publicly announced the pregnancy, worked on her father's campaign, and has written a book about her life are also valid. And the issue didn't start on The Situation Room. Wolfe was only citing very negative, and probably quite hurtful claims made the Cheneys' political allies, and asking if they shouldn't be answered or rebutted. Is Wolfe more at fault for asking the father if he would care to reply to those who criticize his daughter than the ones actually criticizing her?

In the end, by the time that she has announced her pregnancy, the right has attacked her, Wolfe has brought the topic up, Cheney has rebuked him, and Mary has said that neither side should be using her baby, the issue of whether it was a legitimate question is an open issue, that you would expect the press to consider. And if it is out of line to ask the VP to address the topic, if Mary Cheney's pregnancy is nobody's business, how does that affect the whole issue of the privacy of gay and lesbian couples in general? Do they as a class deserve to be left alone, or is it just the families of the rich and powerful?

And now we're finally back around to the question that this blog as a whole is always concerned with, whether we are in danger of sacrificing liberty, whether we are laying the foundation for turning Republic into Empire. We have heard that it is only a "private family matter" when the President's two daughters are charged with alcohol related crimes, and when his brother Jeb's sons and daughter have similar brushes with law involving liquor, sex, drugs and the like. Yet both the President and the Governor supposedly believe in being tough on crime, strong on "values", tough on drugs, and such, and trot out other people's families for display at public speeches. It sounds like asking for special treatment, and in past years the press has argued that even in the cases of the under-age Bush children there was a legitimate story.

But now, a few years later, in the case of Cheney's adult, political activist, public figure daughter, the argument that respect for the VP should dictate discretion in what questions he is asked seems to be taken to heart. The press appears to be learning to show deference, and I cannot help but wonder if after all the talk about the President's inherent power, the way that major votes on habeas corpus, wire tapping, detention without trial, and even torture are being voted on on party lines, out of "loyalty to the President" or in opposition to him, if we aren't shifting our mental habits to the rule of men rather than the rule of law. The President and Vice President are due greater respect than the common man, because of their power and position. The press having learned in the five years since 9/11 not to "embolden the enemy", not to appear disloyal or unpatriotic, is getting used to the habit of deferring to power.

For myself, I can see going a little easy on the private lives of the families of public figures, to at the very least offering them the same discreet privacy that we would show the families of the common man. But in the case of an adult who is a political activist and a public figure in her own right, when she is criticized or attacked in a way that embodies the ways that others are also treated, I don't see the reason for extraordinary deference. Gay rights, gay marriage, gay adoption, and gay parenting are all very vital issues of the day. The debate over them has at times sunk to the level of death treats against gay families. Addressing these issues in polite public debate is important.

It is a sad commentary that it is left to a comedy show to address such serious issues, but it is a hopeful sign that a large and growing fraction of our younger citizens are attending to these issues, informed through such a show.

As ever, don't take my word for it. Watch the shows; read what's been written; get involved; speak out and make a change.