01/06/2006: Timothy Sandefur Takes Me to Task…
...And I might plead guilty, but first a few words:
Sandefur writes about this Argumentum ad labelum:
”I enjoyed Brayton’s comments about the “argumentum ad labelum,” whereby a person who doesn’t feel like addressing an opponent’s substantive claims can just tag that opponent with a term that somehow authorizes dismissing that person’s claims out of hand. For example, when environmental activists say that the Competitive Enterprise Institute or the Cato Institute is “industry funded,” and therefore not worth listening to. (Of course they’re “industry funded.” Who else is going to fund research on subjects related to industry?!)
But look how common this argument style is. At Dark Bilious Vapors, blogger Karen praises Brayton and in the same sentence refers to “those Un-Constitutional Americans out there for CIC’s NSA *Spying-On-American-Citizens-Without-A-Court-Warrant* Program.” Those who believe the President has the authority to conduct surveillance on telephone conversations between people in the United States and people in foreign nations without obtaining a warrant under FISA are “Un-Constitutional Americans”? Even though they have constitutional and legal arguments to support their claims? I believe those arguments to be weak ones, but they are arguments, and they are substantive, and they do deserve to be addressed squarely, not labeled as the products of people who are somehow simply unconcerned with the Constitution.”
I was using that statement -“Un-Constitutional Americans” - to respond to certain comments (see below) and to have a very specific meaning in answer to some some very particular points I’ve run across from folks who are purposely or ignorantly mis-reading and re-writing entire sections of the laws and the Constitution.
I was not using it merely apply to anyone who disagrees with me or my legal points of view. Nor would it apply to those who are citing legitimate statutory construction or putting forth some actual, good faith arguments. Nor even those who would argue to change the rules and laws or the Constitution...but for those folks who are making up out of whole-cloth these *excuses* for this what looks to be illegal/unconstitutional behavior by our Chief exec to defend this Potus from impeachment. (And also the two-faced hypocrites who Moaned about the *Rule of Law* over Clinton, but can't seem to find it in this context for Bush nor for ole Scooter Libby.) This is not a generic label like "Liberal" to apply to like a dirty-word and argument stopper. I was intending to have a very specific meaning to this phrase (even if you think it unfair or over the top.)
As examples - I’ve been coming across things over the past few days like:
“…I realize that we are fighting a war and if you constrain the President, you are asking to lose that war (which is what a lot of Liberals want). I personally want to win, simply because I don't want another 9/11 or worse. Do you? “
or this one:
”Where enacted legislation is ambiguous, the Executive gets to interpret it (or, execute it).”
or this intriguing statutory construct (from a non-lawyer) - as to how far folks will go here:
“…to the relevant section, 1811: "Notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for a period not to exceed fifteen calendar days following a declaration of war by the Congress."
Note, again, this means a period of fifteen days surveillance, not a period fifteen days after the declaration of war.”
This would read that statement as if it was written something like: "...for any fifteen calendar day period, not to exceed fifteen days in total surveillance, following a declaration of war by the Congress." And not as it's plain language meaning suggests - fifteen days from the date of the Declaration of War - and not beyond. Adding words, commas or extra meaning not there on the face of the statutory language.
I wrote this follow-up piece on some of these issues of *Why we need some good statutory interpretation*. [Update: and I have other posts on this NSA topic here and here and here and here.]
Finally, and I’ve made this point before, it is my contention, based on reading the legals briefs filed in Bush v. Gore, that Ted Olsen was making many a legal argument for Constitutional Anarchy and to ignore the long standing legal precedents and Statutes of the State of Florida governing vote re-counts. The Supreme Court never actually answered a lot of those issues in opting for that 14th Amendment findings in its opinion and then ignoring completing the vote re-count anyway. But it was as Un-Constitutional a viewpoint as I've ever seen. And made by this Bush crowd...as they continue to behave in an Extra-Constitutional manner ever since...this NSA issue being but another one, IMHO. [Update: Glenn Greenwald has good piece calling this viewpoint the *ideology of lawlessness* and tracing this back to post 9/11 - but I see it as stemming from before Bush was ever even in the Presidency, from the Bush v. Gore arguments.]
So, I’ll repeat that it’s Time for some good Statutory Interpretations from our High Courts to answer a few of these issues and enforce the Constitution we do have and the Laws of our Country. And if this bAdministration has been willfully violating those Laws and behaving illegally, then Impeachment is not out of the question to protect our system of government. [Update: The WaPo is reporting on the first non-partisan Congressional report on this NSA program as "conflict[ing] with existing law and hing[ing] on weak legal arguments."]
I may be guilty of *Argumentum ad Labelum* -but I do think there are folks that do not want to read the Constitution as it is written, nor do they clearly understand this kind of threat to our form of Government in this rush to excuse these views of - Supreme Executive Powers during a war. And some will defend this POTUS based on a party-bias over the actual Country and Constitution, if it serves their purpose to *WIN* something at all costs.
So, what would that term be for these people? If not Un-Constitutional Americans? Or is there a term for this?
Karen on 01.06.06 @ 08:23 PM CST