Later On

A blog written for those whose interests more or less match mine.

Defending the people vs. Defending the Constitution

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Glenn Greenwald has an excellent column exploring the difference between the Presidential oath as recounted in the media and the actual Presidential oath. The column begins:

In Beltway world, the Brookings Institution is a "liberal" think tank.  When it comes to foreign policy and civil liberties, these are three of its most consequential contributions over the last several years:  (1) the invasion and ongoing occupation of Iraq, in the form of Ken Pollack and Michael O’Hanlon (working in tandem, as usual, with the ultra-neoconservative American Enterprise Institute); (2)unquestioning devotion to Israel’s right-wing policies, in the form of major funder Haim Saban ("I’m a one-issue guy and my issue is Israel . . . . On the issues of security and terrorism I am a total hawk"); and (3) indefinite, preventive detention with no charges or trial in the form Benjamin Wittes (with his close associate, Bush OLC lawyer Jack Goldsmith), who also serves at the right-wing Hoover Institution and writes for The Weekly Standard.  Only in Washington would such a group be deemed anything other than extremist.

Such is the preening conceit of Brookings that they bequeath their website with an ".edu" suffix.  That’s because these are not mere political advocates.  They are "scholars."  Just ask them and they’ll tell you that themselves (even if their backgrounds (.pdf) don’t exactly support such lofty claims).

As part of his years-long advocacy for trial-free, indefinite preventive detention, Wittes spoke to The New York Times‘ William Glaberson this week and was quoted as follows:

Benjamin Wittes, a senior fellow at the Brookings Institution, said Mr. Obama’s proposal was contrary to the path his administration apparently hoped to take when he took office. But that was before he and his advisers had access to detailed information on the detainees, said Mr. Wittes, who in a book last year argued for an indefinite detention system.

"This is the guy who has sworn an oath to protect the country," he said, "and if you look at the question of how many people can you try and how many people are you terrified to release, you have to have some kind of detention authority."

I consider it a good thing that fear-driven people like Wittes (and Newt Gingrich:  "I think people should be afraid") are now becoming more candid about how "terrified" they are and how that drives what they advocate, but still:  shouldn’t a Brookings Scholar and self-described expert in legal matters know what the presidential oath and the Constitution actually say?  As this non-Brookings-sch0lar blogger immediately pointed out, Wittes’ description of the presidential oath is blatantly false:

Yet another "public intellectual" is allowed to get away with mischaracterizing the responsibilities of the President of the United States. . . .

Barack Obama did not swear an oath to "protect the country." He swore an oath to protect the principles upon which the country was founded and the document in which those principles are enshrined:

"I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States."

Considering that Wittes’ assertion is central to the discussion of whether it is appropriate to dismantle our constitutional legal framework in the name of safety and security, one might expect the New York Times to provide a clarification. One might even expect the paper to engage Mr. Wittes in a discussion about the distinction between "protecting the country" and protecting the constitution. But the NYT does neither. It simply lets the false assertion stand as a statement of fact.

The claim that the President takes an oath to "defend the country" — as though he’s some sort of National Security Daddy-Monarch whose supreme, overriding duty is to Keep Us Safe — is one of the most basic, common and destructive myths in our discourse.  That was the warped mindset that lay at the heart of the Bush/Cheney/Addington/Yoo model of the presidency — that everything, including limitations on presidential powers and the Constitution itself, is subordinated to the sole mandate that the President do everything possible — whatever is necessary — to Protect Us All.

This deceitful description of the Presidential oath — just like the compulsion for civilians to refer to the President as "our Commander-in-Chief" even though he is no such thing to civilians — reflects the modern fetishization of the President as Supreme Military Protector, who has few other duties that matter, if he has any, other than single-handedly protecting us from danger.  Even our so-called "legal experts" now blatantly misquote the oath to which the Constitution requires the President to swear, all in order to justify even the most extreme powers, such as imprisoning people potentially for life with no trial and no charges (he swore to protect the country from dangers and so he must do whatever is necessary to accomplish that).

Actual legal scholar Sandy Levinson, writing at Balkinization yesterday, mocked Wittes’ embarrassing though revealingly common error and explained its significance — both in general and specifically for a system of preventive detention: …

Continue reading.

Written by Leisureguy

26 May 2009 at 9:23 am

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