Does It Come In Two-Ply?

Proving that the inventory of suckers never runs low, jurist Richard Posner has a thoughtful little tome out to sort of wean us from the idea that established law has precedence and utility in this stupefied country:

In addition to being a judge on the United States Court of Appeals for the Seventh Circuit, Judge Posner is a prolific author, a lecturer at the University of Chicago Law School and an intellectual leader of a school of jurisprudence that has pioneered the use of economics to analyze legal issues. He is known for his willfully provocative opinions — he once co-wrote an article recommending the private sales of babies — and the positions he takes in this volume will not only fuel his own controversial reputation but also underscore just how negotiable constitutional rights have become in the eyes of administration proponents, who argue that the dangers of terrorism trump civil liberties.

To be sure, Posner is and always has been more of a provocateur than an outright thinker, his noisome emanations seemingly calibrated to amuse, disgust, and embolden simultaneously. That he manages to do so without the usual lead-smelting heat of a Nancy Grace does not necessarily impute more light to his arguments. But for those who wish to utilize and wallow in the bumptious, idiotic bravado of a Rush Limbaugh, without all the unnecessary oxycontin-viagra-Dominican-sex-tourism jokes that accompany it, Posner's their guy, which proves that even supposedly educated people will buy nonsense if you dress it up prettily enough.

The very language Judge Posner uses in this shrilly titled volume conveys his impatience with constitutional rights, while signaling his determination to deliver a polemical battle cry, not a work of carefully reasoned scholarship. He writes about lawyers’ “rights fetishes,” complains about judges’ “thralldom to precedent” and declares that the absence of an Official Secrets Act — which could be used to punish journalists for publishing leaked classified material — reflects “a national culture of nosiness, and of distrust of government bordering on paranoia.”

Yes yes, silly "rights", and the use of "precedent". Words mean what people like Posner need them to mean when they are needed, neither more nor less. That always works out well.

And it's telling that Posner shows his disdain for "a national culture of nosiness", when he himself is explicitly recommending that such a culture be institutionalized. It's one of the more perplexing aspects of the snooping doctrinaires, who are almost always simultaneously proponents of all manner of free-market magicks. They have immense contempt for the bureaucratic pinheads who get in the way of the laissez-faire capitalist and the pelf to which he is entitled, but hitch the selfsame bureaucracy to spy on its own citizens, et voilà! It's a carefully layered Cake O' Freedom 'n' Security™!

That's why it's so important for the likes of Posner to separate empirical fact from accepted precedent, because what it boils down to is that it's just morally wrong for The Man™ to keep the little guy down -- except when Posner and Abu Gonzales and the rest of the Chimpco gang think it's okey-doke. Then it becomes an absolute imperative.

He argues that “it would be odd if the framers of the Constitution had cared more about every provision of the Bill of Rights than about national and personal survival.” And he concludes that “the importance of demonstrating resolve at the outset of a grim struggle explains and to a degree justifies the excesses of repression that so often accompany our entry into war, including the war against Al Qaeda.”

This is a painfully common elision by proponents of the snoop state, that al Qaeda is nothing less than an existential threat to this country, and as such, not only must we be willing and able to subvert our most basic values, but we must do it in the cause of "demonstrating resolve", in the absence of practical utility. It makes sense, coming from an administration where the mere kabuki of tough-guy feints count for more than actually doing something. We could have "demonstrated resolve" by truly committing to the rebuilding of Afghanistan before siphoning off money to blow the lid off of Saddam Hussein's Piping-Hot Kettle O' Death. We could have demonstrated resolve by listening and understanding what the hell we were getting into, instead of lashing out like a drunken sophomore whose girlfriend just dumped him.

Sorry Pos, but I'm not about to surrender my rights to a claque of incompetent plate-spinners, just to "demonstrate resolve" against a bunch of incontinent cave-dwellers half a world away. We faced a truly existential threat for forty-plus years in the Soviet Union. Perhaps you heard of them. Every instance during the Cold War where excess was demanded and granted (proxy wars around the world, internal spying on civil rights leaders) death and destruction were sowed and reaped, and citizens' rights were eroded. Meanwhile there are already plenty of official mechanisms in place to facilitate truly useful sigint observation.

What neither Posner nor the other proponents care to admit is that what the Bushies really are after is control of oversight. They want to absolve themselves from accountability when they screw up, as such excesses inevitably do, somewhere down the line.

Like here.

A government commission on Monday exonerated a Canadian computer engineer of any ties to terrorism and issued a scathing report that faulted both Canada and the United States for his deportation four years ago to Syria, where he was imprisoned and tortured.

The report on the engineer, Maher Arar, said American officials had apparently acted on inaccurate information from Canadian investigators and then misled Canadian authorities before sending Arar to Syria.

See, Syria is next on our hit list, except when they cooperate with our extraordinary rendition efforts. (I can hear the naysayers now, "But Clenis did extraordinary renditions tooooo!!1!1!" Indeed he did, and he was wrong as well. That's part of the point -- that once you grant superpowers, they're not so easy to ungrant, and eventually your ideological foes get them.)

The Syrian-born Arar was seized on Sept. 26, 2002, after he landed at Kennedy airport in New York on his way home from a holiday in Tunisia. On Oct. 8, he was flown to Jordan and taken overland to Syria, where he says he was held for 10 months in a tiny cell and beaten repeatedly with a metal cable. He was freed in October 2003, after Syrian officials concluded that he had no connection to terrorism and returned him to Canada.

Arar's case attracted considerable attention in Canada, where critics viewed it as an example of the excesses of the campaign against terror that followed the Sept. 11 attacks. The practice of rendition, in which suspected terrorists are detained and transported to another country for interrogation, has caused an outcry from human rights organizations. They have called it "outsourcing torture," because suspects often have been taken to countries where brutal treatment of prisoners is routine.

Posner, like Bush, is at least putting his balls out there and staking his claim. The issue is whether we ask ourselves the right questions, like where it stops, and who oversees it, and what safe measures are taken to preserve accountability. And most of all, after all the incompetence, after all the demonstrable carelessness and corruption and mal-fee-ance, why the hell should we hand our rights over to a bunch of thugs who can't even get out of their own way?