The Flight of the Legalists

So, because what the political media does these days is put out pulp advancing their ideology in the backdrop of whatever the current news is, it’s no surprise that the Ultra-Legalists have decided to question the legality of the killing of Osama bin Laden.

Trying to fit this situation into the framework of laws written by very fallible people to deal with different situations implies that laws, once created, enjoy some kind of transcendent status; they don’t. Another argument I’ve read more times than I care to is that if the Nuremberg trials were good enough for the Nazis, they are good enough for Bin Laden. How much do you want me to write on that being wrong?

Glenn Greenwald starts out by telling us how right he was that people would be too exuberant to care (first fallacy: everyone is stupid) but that it’s not that popular everywhere (second fallacy: appeal to mass opinion). Next, he complains that the accounts released by the government have changed. I would be concerned if the accounts change in a few months. We’re sorry that everyone’s story of a helicopter raid isn’t letter perfect in real time. Sheesh.

Greenwald then complains that Democrats are being hypocritical. This is the single most tired argument in politics. If you have an interest, and another party has an opposing interest, any time they actually compromise with you, they are being hypocritical. This is more or less a way of shitting on people you oppose for doing what you want. It’s pathetic.

You see Dems used to say the way to deal with terrorism was law enforcement, now they act like it’s a military thing. If I’m not mistaken, this administration has used law enforcement to deal with terrorism quite a bit.

Greenwald goes on to suggest that what has been created here is a “Bin Laden exception.”

My principal objection to it — aside from the fact that I think those principles shouldn’t be violated because they’re inherently right (which is what makes them principles) — is that there’s no principled way to confine it to bin Laden. If this makes sense for bin Laden, why not for other top accused Al Qaeda leaders?

There’s no way to confine anything to anyone on that basis. There’s no way to make sure everyone gets due process either. There’s no way to make sure every law applies to every person at all.

Greenwald and legalists like him think that laws are transcendent (they are inherently right he says) and so they can never be violated. People of this persuasion think that a society of laws is based on unbending principle. I don’t dispute that that would be the case if humans were capable of crafting or perceiving Perfect Laws. We aren’t.

Because we aren’t, a society of laws must be based on experience and wisdom, on empirical evidence and tests. We have learned that due process is the bedrock of a society of laws, but we have continued to define what due process means in different situations over the years. In some cases, like the death penalty, it means two trials, a guilt phase and a penalty phase. In the case of unemployment benefits, it means an informal hearing in an office.

We continue to figure out what process is due through experience and tough experience. And in that experience, we have to engage in line drawing.

What people who say things like “there is no principled way to confine it to bin Laden” are just either so blinded by their need for perfect principles or are being disingenuous.

Law is built on line drawing. Some people are in, some are out. Some acts of homicide are murder; some aren’t. Some are subject to legal penalty (murder, manslaughter), some aren’t (self defense, death penalty executions).

To me, it’s the rigid application of principles to situations which they clearly don’t apply just because they are “inherently right” that creates more problems. It is the careful drawing of lines that makes us free, not the other way around.