Holder to Paul: “I point to my mask!”

h/t this isn't happiness

Digby links assertions repeated word-for-word by both President Bush and President Obama that “America does not torture” to Attorney General Holder’s curt and negative response to, as Holder put it, an “additional” question posed by Senator Rand Paul during his 13-hour 6 March filibuster of the vote to confirm John Brennan as CIA director.1 “It’s fair to say,” says Digby, possibly fairly, “that these odd phrasings and very particular choices of words are not an accident and anyone with common sense can tell instantly that by being so precise, they are hiding something.” As is typical for Administration critics among left-liberals and libertarians, she blames the executive branch, here represented by its last two chiefs and its current top lawyer, for offering lawyerly locutions on a decisively legal matter, as though the answers to the underlying questions would and must be both non-legalistically simple as well as simply favorable to the ideological liberal legal position. As an ideologue, she is unwilling to imagine that the truth might be relatively simple, but unfavorable to her ideology or at least to the notion of its universality and completeness. The spokesperson for the executive branch is at such times embodying the foundational paradoxes of the liberal democratic order, at the classic exceptional moment in which liberalism encounters the coincidence of its own real-political and conceptual limits. Digby is clearly correct that an official putting these matters in the present indicative grammatically, and in the narrowest available sense semantically, hopes to avoid unwanted practical-political complications, in short wants to say as little as possible or necessary, but she manages to note without considering that Holder, Obama, and Bush, rather than “hiding something,” were revealing everything, and precisely in a way obvious to “anyone with common sense.” “America does not torture” asserts a preferred concept of America, in the manner of a self-validating proclamation or enunciation of faith, and at the same time is a clear acknowledgment of an at best unsettled claim regarding alternative concepts and the actions undertaken under them. “No, the President will not kill Americans not engaged in combat” says, “Yes, this or any president, possibly on no one’s final judgment other than his own, may deem an individual to be engaged in combat and subject to lethal force.” (Whether his or her definition will be accepted and the order followed is another question.) Digby seems unwilling to grant that further questions are authentic, independently significant questions, even while at the same moment she is insisting that these further questions are authentic, independently and even scandalously significant questions. In this sense she represents the reason for the lawyerly locutions, and she is viewing herself in a political-ideological mirror, mystified by the mysterious figure looking back at her in a mask whose perfect transparency to common sense is the ultimate opacity for those who are exclusively committed to something else.

Notes:

  1. The entire body of Holder’s letter – which has become a political Rorschach test on Senator Paul’s criticisms of the Obama Administration – is as follows:

    It has come to my attention that you have now asked an additional question: “Does the President have the authority to use a weaponized drone to kill an American not engaged in combat on American soil?” The answer to that question is no.

    []


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By CK MacLeod

Writing since ancient times, blogging, e-commercing, and site installing-designing-maintaining since 2001; WordPress theme and plugin configuring and developing since 2004 or so; a lifelong freelancer, not associated nor to be associated with any company, publication, party, university, church, or other institution. 

19 comments

  1. I grant Digby a little consistency, a member of the Gitmo bar, like Holder, or their tireless scribes like Shane and Mazzetti, none, sometimes things need to be done, against those who do not abide by the laws of war, like UBL or Awlaki. there should be a more systematic framework involved, which is what Paul is grasping for.

  2. The “weaponized drone” portion of the question and answer raises the question are we concerned more about the killing or the drones? For further meanderings, not necessarily relevant check out Parts 2 and 3, and of couse 1 if you haven’t already of Drone Strikes From the Uncanny Valley, (justclick on bob)

    The droneness of the debate, which has mostly been about the substantive points, does seem to provide a sense that something is diffferent, even though the broad policy questions arenothing new.

    1. I would say the drone or drone system points newly to an ongoing process that also happens to coincide with the advent of “the new” as a social-cultural concept or spirit of the age. I was trying to get at some of this in the Terminator Antichrist post. The system represents, but is not actually – as you point out in your uncanny valley posts – borderless autonomous nemesis and the full realization of the annihilative (anti-)essence of technicity, though it is a pure product of the neo-imperial world state at its current moment. Since the full arrival of that idea would be the end of everything, the “drone system” itself is not authentically what it represents, just as the hydrogen bomb was not actually the physical end of civilization, but did end one “world” and initiate another, and in another way is still a unique and novel reification of the End also foretold in industrial warfare, the Black Death, the Flood, Ragnarok, Wormwood… The drone system does seem to announce at the last the possibility of a sustainable techno-totalitarianism, but I’m not sure we say that it’s worse than the alternatives: We are actively choosing it, it seems.

  3. As wide as their definition of “combat” has been abroad, what actually keeps it as narrow at home as they intend to convey (you suggest falsely) with that reply to Paul?

    If the standard that Rand Paul held up to the executive branch there is inherently unfollowable, then it’s to say there’s nothing of particular note to defend by whatever actions are taken to begin with. If “America” must torture, or kill based on the vague & manipulable, in order to continue then that is the exception destroying exceptionalism.

    The idea of a society that doesn’t tolerate murder on Because I Said So grounds may be an idealistic thought, but there’s reason it exists. We aspire to be more than beasts.

    1. Thanks for your comments. I’ll now overdo a response:

      b-psycho: (you suggest falsely)

      No, not falsely, and the question isn’t whether the definition of “combat” is “wide,” but whether it is inappropriately wide, just as it isn’t solely up to us, short of complete surrender, whether the war, or warfare typical for the present era, is geographically or temporally unbounded. We might say that the peculiar nature of the threat is that it is wide and thin.

      The obvious comparison is to a viral infection that does not truly end except with the death of the host. From a radical perspective, which happens to be the Al Qaeda or revolutionary Islamist perspective as well as the radical anarchist, pacifist, and libertarian perspectives strictly on this question, total surrender would be preferable. Let the Satanic evil of America close down all of its overseas bases, mothball its aircraft carriers or turn them into museums, revert to coastal defense or no defense of its corrupt and evil way of life at all, let the transnational chips fall where they may. That would equate with the political death of the host, and the only way to gain “peace” with this particular enemy. It would mean the end of the existence of this American order or way of life, thus the true “existential threat.” It would have considerable effects on the lives of virtually everyone alive. Right now, we’re not choosing that or any significant movement in that direction.

      As for “murder,” in the loose way that your stateless friends throw the term around, the United States of America is hardly unique in acknowledging the justifiability of lethal force. “Because I said so” would not be the “grounds” for use of such lethal force, and producing them as such would expose the executive officer, from president to cop on the beat, to punishment and infamy. The grounds, as relating to presidential power, will be some extension of self-defense, in the present era of the criminalization of war (an American project full of unintended consequences, but that’s another story). “Because I said so” in this context is the statement in the extreme situation, when the system specifically designates a particular officer to make the irrevocable determination that must sooner or later be made. At the moment the system can no longer make such irrevocable determinations, it has ceased to exist, an event that doesn’t necessarily usher in an end of violence, but cedes such determinations to someone else.

      b-psycho: the exception destroying exceptionalism

      I’ve been thinking about that relationship, too. If you view “exceptionalism” as somehow strictly defined by and dependent upon ideal liberalism or a pure liberal order, then it never existed at all, and cannot. If you view exceptionalism as concrete, an overdetermined geographical, material, cultural, ideational, etc., phenomenon, and look at actual rather than idealized American history, then there’s no contradiction at all. All governments, and self-consciously in the modern conception since Hobbes, are articulations of law and lawlessness. The sovereign power is very much the wall between state and state of nature in this concept. The sovereign makes the law actually realizable. The wall is just a metaphor, of course: Sovereignty and a government’s “monopoly on violence” are also the internalization or channeling of the state of nature within the structures and operation of the civil state. And that’s why the state doesn’t murder, though it does make “murder” – the crime of killing – possible, because without it there is no crime, and by the same token as soon as there is crime or the possibility of crime, or murder, you have the beginning of the state.

        1. Where did I say or suggest that he was lying? To the contrary, I agree with Digby that he is answering the question narrowly but truthfully, and in a way that implicitly re-affirms the larger truth of the matter.

          1. “America does not torture” asserts a preferred concept of America, in the manner of a self-validating proclamation or enunciation of faith, and at the same time is a clear acknowledgment of an at best unsettled claim regarding alternative concepts and the actions undertaken under them. “No, the President will not kill Americans not engaged in combat” says, “Yes, the President, possibly on no one’s judgment other than his own, may kill or order the killing of anyone.”

            Holder in the post-filibuster letter says No. You say the No really says Yes. What is the difference between that and saying “Holder is lying”?

            1. I may have been writing too loosely as to the implications of the statement, since the final power to define combat means in the extreme that he could define anyone in combat. That doesn’t mean he would or will or should, or would be successful, it just means that that’s where the last-resort power lies short of total breakdown of the system. “Sovereign is he who decides on the exceptional circumstance.” It could be that his order would fail, that he would be seen to have abdicated his right to hold the sovereign power on loan from the people, in which case a struggle would ensue over whatever turns out to be the true location of sovereign power. We saw something like this in Egypt last year.

              At the extreme, and this statement will be easy to misinterpret, the President acting as president against any individual would do so as a matter of “combat,” with “combat” standing here for the exceptional or emergency situation that overrides normal civil law. The president’s actions in that situation already create the exceptional situation, though there is every incentive for a president to offer an interpretation that “legalizes” what others call illegal actions. That’s what’s going on now, in a low level way.

              This is also what Nixon was getting at when he said, “If the president does it, that means it’s not illegal,” which is, to say the least, not an accepted interpretation, but is a logical interpretation of pure separation of powers and the equality of branches. The Congress or Supreme Court could declare his actions wrong, and he could declare the Congress or Supreme Court wrong, and it would be up to the real correlation of forces to determine who won. So when the airplane is being steered into the skyscraper, the president, as much by tradition as by the letter of the law, can order it shot down. If there were millions of b-psychos in the streets shutting the government down and wreaking b-psychotic havoc, preventing Congress from meeting and overrunning the White House, or the nuclear bombs had fallen and the Secretary of the Interior was giving orders from a bunker buried in the mountains, then the President or Acting President would act with emergency powers. We can also imagine a president – I went into this in the “what won’t be changed” post – producing a constitutional “crisis” by giving orders that his subordinates refused to obey for whatever reasons. We have an amendment for removal of an incapacitated president, but a president could declare those judging him incapacitated to be treasonous liars, threats to the same constitutional order, effectively “in combat” or “making war” against the state, or engaged in insurrection, and he could order them arrested or killed, or just declare their powers and declarations nullified: A new Civil War or coup and counter-coup. Again, it might then be a matter of the constitution or re-constitution or potentially the collapse of the state and the very possibility of “rule of law.”

  4. Well were his lips moving, why does Ferrigno’s dystopia, seem less implausible then they did a few years ago,

  5. very amusing to read this, Tsar.

    but, at bottom, this isn’t quite about liberal ideology, but about a demand for clear rules clearly laid out in public.

    these folks are demanding that our government fight transnational terrorism either in accord with our criminal law or along the lines laid out by what they understand to be the laws of war.
    they’re outraged that we’re fighting as if we’re not gentlefolk.

    1. “Quite”? Clear rules laid out in public governing every conceivable situation, including combat with non-gentlefolk, is the liberal ideal – the government of laws, not frogs.

  6. Well one can’t help recall that the same issues were raised in ‘Clear and Present Danger’ nearly 20 years ago, when Bin Laden was an entry in a dead file, of course, Hollywood, already went down the looking class with the Bourne Ultimatum,

    1. The issues are constantly raised in popular fiction, and not just directly in regard to presidential powers. Every wrongly convicted hero who defies the law (escapes prison, defies orders, euthanizes the suffering patient, etc.) in order to see justice done is creating his own mini-“exceptional circumstance.” It’s one of our favorite things.

  7. eh? American conservatives ain’t demanding conformity to there ideas of Constitutional law in all circumstances and a clear adherence to Constitutional provisions forbidding the imposition of regulations?

    1. To the extent they are, it’s very “liberal” of them in this context. They have in mind an ideal body of law that contradicts the social welfare liberals’ ideas about law, but it’s still a “modern liberal” ideal. We’re talking political philosophy here – https://ckmacleod.com/2012/12/11/definitional-note-on-liberalism-as-ideal-or-political-philosophical-liberalism/ – not partisan labels. American conservatives or specifically constitutional conservatives are for the purposes of this discussion often as “liberal” as anyone, or even more so. The Neocons and McCainiacs and so on, as opposed to the libertarians and paleos, are much more comfortable supporting the state over whatever legal regime, especially in the matter of international law and laws of war, which they tend to see as much less well-settled and comprehensive than the liberal legal idealists do. The paleos, libertarians, and constitutional conservatives, at least where they happen to be consistent, are often less interested in international law because they are not convinced that we ever should or ideally could have ceded sovereignty to higher bodies or forces. Eventually you get to the sensibility that thinks the Constitution itself is “in exile,” has been misinterpreted and misapplied.

  8. thank you for explaining that stuff. way back when I was majoring in (political) philosophy, it was explained somewhat differently, although it was said that those you would call conservatives today, and who share a basic belief in natural rights and reject positivism along with those you would term libs needn’t be at odds over sharing.

    1. I think you’re referring to “legal positivism” (Bentham, Hart) as opposed to philosophical “positivism” (Comte), and I think you’re saying that legal positivism and natural right express differences within the same family or within the same horizon, which is how I understand them. Legal positivism also splits into schools, of course, and explaining the differences between legal positivism and modern natural law might be an interesting topic for some scholar somewhere. Not sure who you think I’m calling “libs,” which brings to mind the third problem or confusion of so-called classical liberalism, which is, of course, first an economic philosophy, vs. present-day factional, mainly post-WW2 American Hubert Humphrey liberalism. From a political-philosophical perspective though I think liberalism still eventually reduces to variations on the conjunction of natural right and democratism or republicanism, and a commitment to the derivation of a just order through application of public reason, which tends to take the form of “law.” Since, however, the concept embraces a principle of reason and therefore a potentially endless process of self-alteration and -reform, its particular contents, even its conceptual content, are always subject to change.

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