top-down justifications

On the "Intro" to his first album – "Return to the 36 Chambers" – Ol' Dirty Bastard tells an audience about a girl he met for 10 minutes who ends up giving him gonorrhea. The story goes : "Yeah, I love the girl but I had to cut the bitch off / Yeah the bitch died / I killed the bitch / She suffered a long painful death / bitchy ass go bitch had to go."

Isn't everything in the presentation? Usually when people commit crimes or do other things they want to cover up their justifications and stipulations go from narrowest to broadest. Another way of repeating Ol' Dirty's story is picturing him telling the cops "Didn't know her anymore / I knew she had died / I killed her / funny, I actually tortured her / I did so with premeditation." Isn't that what we all have come to expect?

Ol' Dirty – also mindful of your civil liberties

God bless him, not so with George Bush's White House. I encourage everyone to flip through the 42-page white paper the Department of Justice released justifying his secret NSA wiretaps. The argument is in the first three pages. What I find amazing is that it goes from the broadest possible argument to the most specific, instead of the other way around. Here's the reasoning, straight from the memo, in the order it is presented (all quotes, my numbering):

1) The NSA activities are supported by the President’s well-recognized inherent constitutional authority as Commander in Chief and sole organ for the Nation in foreign affairs to conduct warrantless surveillance of enemy forces for intelligence purposes to detect and disrupt armed attacks on the United States.
2) Congress by statute has confirmed and supplemented the President’s recognized authority under Article II of the Constitution to conduct such warrantless surveillance to prevent further catastrophic attacks on the homeland.
3) The NSA activities are consistent with the preexisting statutory framework generally applicable to the interception of communications in the United States—the Foreign Intelligence Surveillance Act (“FISA”)…FISA also contemplates that Congress may authorize such surveillance by a statute other than FISA.
4) the constitutionality of FISA, as applied to that situation, would be called into very serious doubt. In fact, if this difficult constitutional question had to be addressed, FISA would be unconstitutional as applied to this narrow context.
5) Finally, the NSA activities fully comply with the requirements of the Fourth Amendment.

That's the order. To read it backwards we get: 5 – We didn't break the law. 4 – It's not even a real law. 3 – The law doesn't cover this. 2 – We were told we could break the law. 1 – It doesn't matter anyway, no law covers the President here. And that's the order you would expect, no? I'm loving that the initial assumption (as well as the loudest) is that the President can pick and choose laws to follow in these situations, and that the more diplomatic and reasonable assumption that the President was abiding by what he believed to be the *actual* law is thrown in at the end of the paper as an afterthought.

Do check it out. As Andrew Cohen wrote "The first time you read the 'White Paper,' you feel like it is describing a foreign country guided by an unfamiliar constitution." I felt like it was the legalese of a cowboy sheriff of an Old West town, someone who was not under the impression that the government is more than one man shooting bad guys in the town square with frontier justice. If there's any political philosophy which is based on the ideas of narrow interpretation of the Constitution, and of using the branches of government to check each other, they may not want to back up this cowboy anymore.

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3 Responses to “top-down justifications”

  1. Ed Says:

    I like how they just throw 5 or 6 rationales at the wall, figuring "One of 'em oughta stick."

    My favorite analogy to describe how I feel when I read Bush-era White House communication: It reads like it was written in a foreign language and then translated into English, with all the discontinuity and awkwardness inherent in that process.

  2. Samantha Says:

    Sounds like my ex-husband's confusingly hypnotic line of reasoning every time he didn't come home: 1. I forgot I was supposed to come home, 2. My truck wouldn't start, 3. I had work to do, 4. Someone stopped by my shop at the last minute, 5. I don't have any money.

    Yeah, I never knew what that last one (a favorite of his) meant either, but it sounded like enough of a Bush administration irrelevancy that I just had to throw it in there.

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