Remember how ages ago, I mentioned that whenever a discussion about free speech gets going, "some idiot" sooner or later misquotes O.W. Holmes and says that free speech doesn't mean you can yell "fire" in a crowded theater? When the fact is that you CAN yell "fire" in a crowded theater...provided there's a fire. What Holmes said you cannot do is falsely shout "fire" in a crowded theater and cause a panic. And furthermore, Holmes' comment was attached to a decision that had nothing to do with theaters, crowds, fires or panic. It instead supported a horrific lower court abuse of free speech rights, when a socialist named Schenck was jailed for years and heavily fined simply for advocating the notion that the draft was wrong. You remember the draft: It's that thing they eventually abolished and now when politicians try to make each other look bad, they claim the other guys are talking about bringing it back.
The Holmes-quoted decision not only jailed Schenck, but dozens of other Americans over the following years because it advocated a fundamental concept: Disagreeing with the US government in times of war was a jailable offense.
You'd think people would learn. And yet there, on the "Daily Show" last night, was Zell Miller, discussing freedom of speech and misquoting Holmes, as if misquoting was a good thing. As if a court decision suppressing disagreement with the government was a good thing.
Thank heavens I was not in the audience of the "Daily Show" last night. Because I just KNOW I would have shouted out, "Holmes didn't say that, you nitwit!" Which probably would have gotten me thrown out of the theater, but hey, it's better than falsely shouting "fire."
PAD
Posted by Peter David at May 3, 2005 12:58 PM | TrackBack | Other blogs commentingyou should actually e-mail that information to the Daily Show (if they didn't catch it already). I think it would be possible for the show to make a decent joke about it.
oh, and the draft isn't fully abolished. It's still around, hiden in the shadows, waiting for the right chance to pounce on unsuspecting democrats.
Really. I think Zell lost his last tenuous grasp on reality when he made that duel challenge to Chris Mathews.
"you should actually e-mail that information to the Daily Show (if they didn't catch it already). I think it would be possible for the show to make a decent joke about it."
Well,I don't have an e-mail address for them. If anyone out there does have it and wants to e-mail them a copy of my blog entry, feel free.
PAD
From the "Jon Stewart Intelligence Agency" web site:
"As far as we know, Jon cannot, and does not, want to be contacted via e-mail."
They list your basic snail-mail address, but that's rather less useful.
Also, (and I realize I asked this before, but I didn't get an answer of any kind), whatever happened to the BID reprints? I was really enjoying them, and they stopped back in November without any explanation that I can find. Any chance they'll be starting back up at some point?
Comedy Central Web Comment Form. Select Daily Show and comment away. Will you be shouting to the wind? Will anybody who cares actually read it? Shrug.
As one of the previous "idiots" who brought up that quote on this blog, I'm still not sure exactly what the misquote is. Whenever I've said "you can't yell 'fire' in a crowded theatre," I just figured it was understood that you CAN yell "fire" if the theatre is on fire. Yelling it falsely is, of course, a different matter. Add to that the fact that I rarely mention Holmes, and I honestly fail to see what makes me an "idiot."
As far as the court decision goes, does the context in which the often-misquoted statement appears change the truth of the misquote? I suppose if I were saying, "Well, OW Holmes believed this and only this about free speech..." then it would be important, but just to note the quote itself (especially to explain the basic idea that PAD explains early in his post) doesn't seem to require a history lesson.
So I guess I have two questions:
1) PAD, what about what I'm saying above is missing your point? I feel like I'm sounding belligerent or defensive here, and I'm not trying to be a jerk, but when someone calls me an "idiot" and I put honest thought into the reason behind it and still don't quite get it, I become confused.
2) Is the quote (and the basic idea it explains) inextricably linked with the Schenck case even when one doesn't say "I'm quoting Oliver Wendell Holmes here"?
Thanks for the clarification and education.
Eric
I always liked the Abbie Hoffman bit of wondering if it was OK to yell "Theatre" in a crowded fire.
Heh, as if any right-minded person would ever listen to what Zell Miller has to say. (Well, I suppose right-minded people will listen, but I digress.) Nevertheless, it does have to make you wonder about the Georgia Democratic Party. He's so much a DINO, the Flintstones can often be found feeding him.
The main email address for the show is thedailyshow@comedycentral.com.
Jon does not have a publicly posted email address. If you email me, I'll give you the individual addresses for the producers. (No way I'm posting 'em.) ;-)
Can you yell "fire" in a theater that isn't crowded? What about "water?" Or just "Bad movie?"
Seriously though, in response to the following:
2) Is the quote (and the basic idea it explains) inextricably linked with the Schenck case even when one doesn't say "I'm quoting Oliver Wendell Holmes here"?
I can't speak for PAD or anyone else, but I think that yes, the quote is "inextricably linked" to the source, if for no other reason than to question or criticize the wisdom of the quote (which I think is precisely what PAD is doing).
I returned to college recently, and as an English major I've had to write my fair share of papers in the past two semesters. It's caused me to question why so many sources have to be cited in academic work.
I think there are a lot of very good reasons why sources have to be cited, and the reasons that speaks most to your question is that if you're going to borrow someone else's wisdom/arguments/whatever, then in order to be fair you need to be open about where the quote is coming from so the reader/audience/whatever can decide on their own if you're using it in the correct context.
I mean, if I write a paper arguing for the legalization of drugs, and I quote someone saying "heroin is good for you and helps to build strong bones," if it turns out that the source of that quote is Sid Vicious (it isn't, just made it up), well then the reader knows that that might not be trustworthy information.
In the case of the Holmes quote, I think PAD is right in point out the context in which it was originally uttered. After all, when do public figures EVER bring up that phrase when they're NOT trying to do something similar? I mean, there really haven't been many explosions in "falsely-yelling-of-FIRE" crimes in any part of the country as far as I know.
C'mon PAD, do you really expect politicians to know what thet're talking about? Especially the ones from thre lunitic fringe?
I always liked the Abbie Hoffman bit of wondering if it was OK to yell "Theatre" in a crowded fire.
Why not... I regularly shout shark in crowded elevators. It confuses the hell out of people.
I'm another one of the idiots; I, too, used it as an example of a type of speach that the First Amendment does not protect, which it is given the assumption that the theater is not actually on fire.
I agree with PAD on most things, and I can understand being upset when the quote is misused, but I also think that intelligent people would assume that "fire" example applies to theaters that are not, currently, burning.
The fact of the matter is that shouting "fire!" in a crowded theater (implication being that it's not on fire at the time, DUH) IS a form of speech that is not protected. Similar to death threats, libel, and slander.
Phinn
In fairness, judging from Miller's advanced age, he may well have been present when Holmes first made that quote and thus heard it correctly at the time. For that matter, I believe he was also present when Moses first came down from the Mount carrying the seven commandments, giving him three extra ones for good measure.
The Smothers Brothers did a classic bit about falling in a vat of chocolate. tom says he yelled fire, dick asks why, tom replies that no one would come if he yelled "chocolate".
I'm sure it's never happened in real life - let's replace "sure" with "certainly hope" - but I wonder if anyone ever written a story about someone seeing a fire start in a crowded theatre and not soind or saying anything about it, alowing it go grow out of control, because they believed it was illegal to yell "fire" in a crowded theatre?
and this topic always reminds me of those various rock'n'rollers who have written songs that legally allowed them to shout "Fire" in a crowded theatre. I've always wondered if they deliberately did it just to defy the aphorism.
Examples include The Doors "Unknown Soldier" with an instrumental passage containing a simulated firing squad execution complete with "Ready... aim... FIRE!", rimshot on the drum and Morrison falling down,
and Sinead O'Connor's "Fire On Babylon".
There are a lot of others, like "Fire" by the Jimi Hendrix Experience" or "Fire" by Bruce Springsteen (covered by both The Pointer Sisters and Robert Gordon) and no doubt hundreds of other songs with the word fire in the lyrics or specifically the chorus,
but I was specifically looking for examples of singers actually shouting the word.
Like "Fire" by "The Crazy World of Arthur Brown" with its introductory exclamation of:
"I am the God of Hellfire, and I bring you FIRE!"
As far as I know, O'Connor and Brown were never arrested. Morrison was, but not for yelling "fire.
I returned to college recently, and as an English major I've had to write my fair share of papers in the past two semesters. It's caused me to question why so many sources have to be cited in academic work.
I think there are a lot of very good reasons why sources have to be cited, and the reasons that speaks most to your question is that if you're going to borrow someone else's wisdom/arguments/whatever, then in order to be fair you need to be open about where the quote is coming from so the reader/audience/whatever can decide on their own if you're using it in the correct context.
I've run across this in the various attempts of creationists to push their ilk into the school system. They are notorious for misquoting primary sources, taking out material without indicating and quoting out of context to give the material the opposite meaning of what the author intended.
Quote mining, like this, is pretty reprehensible, and is unfortunately used by a lot of loose and muddy thinkers....
Are there any "Strangers With Candy" fans here? Remember the one with the priest who was advocating against free speech, saying, "Is it okay to yell 'fire' at a crowded book-burning?"
I loved that. He soon followed it up with another gem: "After all -- did Jesus go around just speaking freely, spouting off any thought that came into his head? Yes. He did. And look what they did to HIM!"
I might actually be inclined to *side* with Zell Miller on this one.
At face value, "You can't yell fire falsely in a crowded theatre" is true.
Holmes may have said it to justify a bad legal decision, and Zell Miller (erroneously) to justify some stupidity, but bad logic shouldn't taint its premises.
George Orwell wrote an essay on Rudyard Kiping where he points out that even though Kipling's views were vulgar and reactionary, it was hard to avoid using his phrases.
The resurrection of this thread does tend to prove that, if you can't falsely yell "fire," you can at least falsely yell "tyranny."
PAD wrote, The Holmes-quoted decision not only jailed Schenck, but dozens of other Americans over the following years because it advocated a fundamental concept: Disagreeing with the US government in times of war was a jailable offense.
No it didn't. It let stand Schenck's conviction FOR ADVOCATING DESERTION FROM THE ARMY. That's what he was convicted of-- not arguing against the Wilson administration's positions, not railing against the humongous waste of lives known as World War I, but actively soliciting people (soldiers) to commit a felony (desertion). The whole point of the frighted with false fire metaphor was merely to illustrate one simple concept: that referring to criminal coduct as "speech" doesn't bring it within the protection of our civil liberties. If I asked PAD to run downtown and buy me some crack, it wouldn't be free speech, it would be solicitation to commit a felony. I'd be jailed. On the other hand, if I asked PAD to dodge the draft, I couldn't be jailed, because he's not draft-eligible and thus could not possibly commit the crime I was advocating. (Hence the "clear and present danger" test-- you can't commit the offense of solicitation unless there is a real chance the crime solicited could be carried out.)
My attitude is that if you're going to quote someone as an example of how knowledgeable you are, then you damned well better get the quote right.
This attitude of "assuming the meaning" and thus giving a free pass to the speaker because, hey, you know what he *meant*, is part of what's causing spiralling lack of exactitude in this country. The English language is becoming the oral equivalent of jazz or horseshoes, where close enough is okay. It's part of the reason why intelligent people can't understand the national tolerance for Bush's inability to express himself. People give him a free pass because, hey, we know what he MEANT to say, so isn't that sufficient? My response is, no, it's insufficient. It represents a national lowering of standards, and that's just sad.
The thing that makes the Holmes quote so insidious is that it's an unassailable sentiment attached to a horrific decision. You read this decision and think, "Well, of course people shouldn't be allowed to falsely shout fire in a crowded theater. That's just wrong." It's the same decision that coined the phrase "clear and present danger." The problem is that the high court of his country effectively determined that criticizing the government in time of war constituted a clear and present danger. These laws are still on the books; it's the laws that Nixon tried to use to stifle the Pentagon Papers.
Does ANYONE think criticism of the government at time of war warrants prison time? Anyone?
PAD
Actually, I blurred an important distinction in my last post. Schenck didn't merely "advocate" desertion in an op-ed piece in the Times. There was evidence adduced at trial that he and his cohorts actively sought out soldiers and passed out the fliers advocating desertion. Actively encouraging specific individuals to commit a criminal offense always has been a crime, and always will be.
These laws are still on the books; it's the laws that Nixon tried to use to stifle the Pentagon Papers.
OK, apart from the humor in saying "it's the laws" a paragraph after you assailed Bush for being inarticulate (and in all honesty he has enough problems speaking his mind that I cringed several times during the debates), I still have to take issue with your assessment of the state of the law. As you said, "Nixon tried to use" that case law. However, please recall that Nixon failed to suppress the Pentagon Papers. New York Times v. United States, 403 U.S. 713 (1971). And furthermore, the opinion isn't at all "horrific" like you keep claiming. The case you want to argue-- and one that provides you a better basis for criticizing Holmes himself-- is Debs v. U S , 249 U.S. 211 (1919). Eugene Debs actually was sent to prison for behavior that should have been protected by the First Amendment. Schenck's conviction was unassailable.
"No it didn't. It let stand Schenck's conviction FOR ADVOCATING DESERTION FROM THE ARMY. That's what he was convicted of-- not arguing against the Wilson administration's positions, not railing against the humongous waste of lives known as World War I, but actively soliciting people (soldiers) to commit a felony (desertion)."
Really. A pretty devastating assertion. Problem is, in reading the actual pamphlet--which I have--I don't see where he says that. Here. Read it yourself:
"Assert Your Rights
The Socialist Party says that any individual or officers of the law intrusted with the administration of conscription regulations violate the provisions of the United States Constitution, the supreme law of the land, when they refuse to recognize your right to assert your opposition to the draft.
In exempting clergymen and members of the Society of Friends (popularly called Quakers) from active military service the examination boards have discriminated against you.
If you do not assert and support your rights you are helping to "deny or disparage rights" which it is the solemn duty of all citizens and residents of the United States to retain.
In lending tacit or silent consent to the conscription law, in neglecting to assert your rights, you are (whether knowingly or not) helping to condone and support a most infamous and insidious conspiracy to abridge and destroy the sacred and cherished rights of a free people. You are a citizen: not a subject! You delegate your power to the officers of the law to be used for your good and welfare, not against you.
They are your servants; not your masters. Their wages come from the expenses of government which you pay. Will you allow them to unjustly rule you?
No power was delegated to send our citizens away to foreign shores to shoot up the people of other lands, no matter what may be their internal or international disputes.
To draw this country into the horrors of the present war in Europe, to force the youth of our land into the shambles and bloody trenches of war crazy nations, would be a crime the magnitude of which defies description. Words could not express the condemnation such cold-blooded ruthlessness deserves.
Will you stand idly by and see the Moloch of Militarism reach forth across the sea and fasten its tentacles upon this continent? Are you willing to submit to the degradation of having the Constitution of the United States treated as a "mere scrap of paper"?
No specious or plausible pleas about a "war for democracy" can becloud the issue. Democracy can not be shot into a nation. It must come spontaneously and purely from within.
Democracy must come through liberal education. Upholders of military ideas are unfit teachers.
To advocate the persecution of other peoples through the prosecution of war is an insult to every good and wholesome American tradition.
You are responsible. You must do your share to maintain, support, and uphold the rights of the people of this country.
In this world crisis where do you stand? Are you with the forces of liberty and light or war and darkness?"
The fact--if we dare clutter the discussion with them--is that Schenck did nothing illegal. Not only did he not advocate that anyone perform any illegal act, but I've found no record of a single one of the 15,000 draftees he sent his flier to refusing to report. Schenck did not create a panic. He did not represent a clear and present danger. He didn't do anything except express a critical opinion of the government far milder than what one sees on the internet every single day.
And not only was he jailed and fined for it, but other people--under the same laws--were likewise jailed and fined SIMPLY FOR STATING THEY FELT THE US SHOULD NOT GO TO WAR.
And if the only way people nowadays can justify that horrific travesty of free speech rights is either to make false claims about what he said or act as if, because Holmes' sentiment makes sense, therefore it was okay...well, that's just pathetic.
PAD
Really. A pretty devastating assertion. Problem is, in reading the actual pamphlet--which I have--I don't see where he says that. Here. Read it yourself:
Yep, I did. So did Holmes, and in fact he quoted it several times in the Court's opinion. Holmes also asked a really interesting question about it: if they weren't trying to persuade draftees not to report, why on earth would they stage a directed mailing of 15,000-ish fliers to recent conscripts? Again, this wasn't an op-ed piece, it was a direct mail campaign. No person and no jury could possibly be stupid enough to believe that Schenck wasn't trying to incite draftees to avoid the draft. Again, quoting the opinion, "Of course the document would not have been sent unless it had been intended to have some effect, and we do not see what effect it could be expected to have upon persons subject to the draft except to influence them to obstruct the carrying of it out. The defendants do not deny that the jury might find against them on this point."
The fact--if we dare clutter the discussion with them--is that Schenck did nothing illegal. Not only did he not advocate that anyone perform any illegal act, but I've found no record of a single one of the 15,000 draftees he sent his flier to refusing to report.
That isn't an element of the offense. The offense is socliciting someone to commit a crime. You don't have to actually talk them into doing it in order to be guilty, which is why people still go to jail for hiring people to kill their wives, even when the people they try to hire are undercover cops.
And if the only way people nowadays can justify that horrific travesty of free speech rights is either to make false claims about what he said or act as if, because Holmes' sentiment makes sense, therefore it was okay...well, that's just pathetic.
I don't have to be pathetic in order to disagree with your interpretation of someone's actions 88 years ago, but it seems to help. Merely saying that a criminal prosecution is "horrific" doesn't actually make it so, any more than hiding behind the First Amendment made Schecnk a martyr when he was really trying to interfere with a lawful government action (the draft).
I don't know, PAD. You're right that the quote, as it is usually phrased, is a misquote but I think the reaction from the audience would have probably been more along the lines of how one feels when some Trekkie loudly corrects someone who says "Beam me up, Scottie!". It's true, it was never actually said in the series, just as Holmes never said "Elementary my dear Watson." But it's no big deal.
Better to argue your other points. I, for one, disagree with David that Schenck was justly convicted--even if he DID advocate resistance to the draft, any more than they had the right to try to convict Martin Luther King for advocating the breaking of Jim Crow laws
I think that people do have the right to speak about breaking the law. If they go and actually DO it, well, then they have to expect to take their lumps. If it can be shown that their words were responsible for laws being broken, well, there are laws against incitement to violence. But the bar should be set pretty high for convictions. I know it's against the law to advocate the assassination of the president but I wouldn't want to see Randi Rhodes go to jail for her idiotic joke about shooting Bush.
Merely saying that a criminal prosecution is "horrific" doesn't actually make it so, any more than hiding behind the First Amendment made Schecnk a martyr when he was really trying to interfere with a lawful government action (the draft).
I can think of a few other folks who tried to "interfere with a lawful government action," including those obscure George Washington and Thomas Jefferson guys.
I can think of a few other folks who tried to "interfere with a lawful government action," including those obscure George Washington and Thomas Jefferson guys.
Yes, they were leaders of an insurrection. If you're conceding that Schenck was fomenting an insurrection, I think I win this argument.
Schenck's conviction was "unassailable?" Hmm. Well, I'm no lawyer, but there's a considerable body of writing from people who *are* lawyers who assail it just fine. To start with, I'd refer you to the Alan Dershowitz article "Shouting Fire" which ran in "Atlantic Monthly." Dershowitz, in shredding the unjust punishment--and I quote this in order to stay true to the post that started this thread, regarding the oft' misquoted Holmes line:
"...in spite of its hallowed position in both the jurisprudence of the First Amendment and the arsenal of political discourse, it is and was an inapt analogy, even in the context in which it was originally offered. It has lately become–despite, perhaps even because of, the frequency and promiscuousness of its invocation–little more than a caricature of logical argumentation."
Schenck's actions did not impede the draft in the slightest. They presented no clear or present danger. They presented no falsehoods or untruths. He was jailed for doing nothing wrong, and the many others likewise jailed under the espionage acts also did nothing wrong. And the longer the Holmes quote is held up as some sort of positive example of jurisprudence, the longer that behavior will be tacitly endorsed by people who, more often than not, don't even know the circumstances under which Holmes originally said it.
THAT is unassailable.
PAD
"...'heroin is good for you and helps to build strong bones...' ... the source of that quote is Sid Vicious..."
Hey, I'm just quoting Michileen Martin here...
(Oh, come on. You were thinking the same thing, and you know it!) :-)
"That isn't an element of the offense. The offense is socliciting someone to commit a crime. You don't have to actually talk them into doing it in order to be guilty, which is why people still go to jail for hiring people to kill their wives, even when the people they try to hire are undercover cops."
Well, you're wrong on several levels. First, Schenck did not solicit someone to commit a crime. He advocated that people not submit to perceived tyranny...just like that bastard, Thomas Jefferson. He advocated that people seek redress of grievances through the government. Wotta joik. He quoted from that notorious seditious document, the Constitution of the United States.
He said nothing untrue. Nothing. Even by Holmes' own standards, he did nothing wrong, for his statements were not false, did not cause panic, and--since they deterred not one soldier from reporting--presented no danger, clear, present or otherwise.
The only "danger" was perceived by the governemnt--a government which, I remind you, lost at the lower court levels in a decision rendered by Judge Learned Hand. If you're going to deprive someone of their liberty for a decade, you better be prepared to prove that they did more damage than just saying something you didn't want to hear.
I notice you don't address the fact that Schenck really didn't do any damage, that his comments were neither untrue nor enducing of panic, and you haven't begun to touch the fact that others were jailed for expressing the opinion that the US shouldn't be going to war thanks to the Schenck case. I thnk it's just sad that you would endorse such retrictive, dangerous judicial...dare I say it...activism.
PAD
I think that people do have the right to speak about breaking the law. If they go and actually DO it, well, then they have to expect to take their lumps. If it can be shown that their words were responsible for laws being broken, well, there are laws against incitement to violence. But the bar should be set pretty high for convictions.
Well, OK, but you have to accept that you're advocating a change in centuries' worth of legal doctrine. In my jurisdiction at least, the law does not distinguish between soliciting someone to commit a violent offense and soliciting someone to commit a victimless offense. PAD's claim is that Schenck's conviction was a misapplication-- not to say travesty-- of free speech law, which it's not.
Well, you're wrong on several levels. First, Schenck did not solicit someone to commit a crime.
Really? I'm pretty sure that's what he was found guilty of doing. God, what a malfeasance. Stupid jury, mistaking someone sending a paper advocating desertion to draftees for someone who was trying to get draftees to desert. What were they thinking?
He advocated that people not submit to perceived tyranny...just like that bastard, Thomas Jefferson. He advocated that people seek redress of grievances through the government.
Really? I didn't see a peep in the document-- which you quoted in its entirety-- advocating a resort to the legal process for redress of grievances. The entire plea was to "assert rights" in the face of "officers of the law intrusted with the administration of conscription regulations." Claiming that this was not an incitement to disobey the draft is disingenuous on the level of claiming that the Civil War was about states' rights, rather than slavery.
Which right was the State of South Carolina trying to preserve? The right to have slaves in its borders. OK, thanks. Schenck didn't use the magic words "please desert" any more than the SC Militia used the magic words "preserve chattel slavery" in its recruiting posters, but we're not children here.
I notice you don't address the fact that Schenck really didn't do any damagethat his comments were neither untrue nor enducing of panic, and you haven't begun to touch the fact that others were jailed for expressing the opinion that the US shouldn't be going to war thanks to the Schenck case..
If I shoot at someone and miss, I cause no damage. If I do it from far away (rogue sniper that I am) and the person doesn't hear the report from the gun, I don't even cause a panic. Yet I am guilty of attempted murder.
Oh, and by the way, I did in fact cite the Debs case, which *does* seem to have been an unjustifiable conviction that partially relied on the Schenck case. So which definition are you using for "haven't begun to touch on?"
PAD wrote:
My attitude is that if you're going to quote someone as an example of how knowledgeable you are, then you damned well better get the quote right.
But what if I'm not using the quote as "an example of how knowledgeable" I am? The basic idea ("You can't yell 'fire' in a crowded theatre if the theatre isn't on fire") is perfectly sound and demonstrates an easy-to-understand case of restricted spech that doesn't really infringe on freedom. I teach high school English, and at some point in the year, the concept of freedom of speech inevitably comes up. Some of the kids need the basic concept of "There are certain things you just can't do. For example..." and the "fire in a theatre" example comes in awfully handy. Especially if I'm not mentioning O.W. Holmes and his use of it in the Schenck case, I don't see how the source is relevant in that case.
That said, I really appreciated the history lesson the last time I mentioned this, because I didn't realize how badly Holmes had misused the analogy. Comparing "Reject the draft!" to "Fire in a crowded theatre" is absurd and disturbing, I agree. Claiming this concept as a shining example of the wisdom of American jurisprudence or anything like certainly seems foolish to me now.
This attitude of "assuming the meaning" and thus giving a free pass to the speaker because, hey, you know what he *meant*, is part of what's causing spiralling lack of exactitude in this country. It's part of the reason why intelligent people can't understand the national tolerance for Bush's inability to express himself. People give him a free pass because, hey, we know what he MEANT to say, so isn't that sufficient? My response is, no, it's insufficient. It represents a national lowering of standards, and that's just sad.
Hmm. I'd always seen the national tolerance for Bush (in general) as a combination of people agreeing with the ideas he espouses and a lack of critical thinking that prevents people from realizing the implications of his ideas. I'm not sure I would agree that America is sliding down the tubes of insufficient expression.
The thing that makes the Holmes quote so insidious is that it's an unassailable sentiment attached to a horrific decision. You read this decision and think, "Well, of course people shouldn't be allowed to falsely shout fire in a crowded theater. That's just wrong." It's the same decision that coined the phrase "clear and present danger."
1) So you do agree that, on a basic level, the statement about "yelling 'fire' in a theatre" is "unassailable sentiment"? Am I to understand, then, that I would not be considered an "idiot" if I used the basic quote only as an elementary example of non-protected speech? As long as I'm not citing the "horrific decision" as equally true and wise, I'm okay?
2) The "clear and present danger" standard is no longer in use, is it? I thought the new standard (established sometime around the Vietnam War) was "inciting imminent unlawful action" or something similar, and that, under that standard, the Schenck case would have gone the other way? Again, clarification/correction is welcomed.
Does ANYONE think criticism of the government at time of war warrants prison time? Anyone?
I certainly don't. I have yet to read any free speech opinions of yours, PAD, with which I don't agree. However, I am consistently surprised by your anger over this one quote which is so often used unattached to Holmes or Schenck. (If it is used attached to either of those, then I understand.)
Eric
Wow. A lot of to do about nothing. I am serious. I agree with the post above that said your points really do not rest on whether Miller got the quote right or not. It is just an excuse to call a conservative an idiot. Which is your right to do if it makes you feel better.
If we wanted to get into the misuse of quotes, the so called "wall of separation of church and state" comes to mind. Research it and it in no way calls for removing religion from schools or the public square. Quotes do tend to take on a life of their own. I prefer to debate the issues as they now stand.
Iowa Jim
Schenck's conviction was "unassailable?" Hmm. Well, I'm no lawyer, but there's a considerable body of writing from people who *are* lawyers who assail it just fine.
And I can fire back a stream of lawyers who think it's perfectly valid, starting with me. It isn't the first time I've disagreed with Dershowitz. Like that time that he advocated allowing the torture of terrorists if we really need the information they might have, as long as law enforcement personnel got a warrant first. His line of reasoning seems to be that, since we can't trust law enforcement not to torture, we might as well regulate it. I really disagreed with him on that one. There is a legal aphorism that "hard cases make bad law." It's a true description, but Dershowitz seems to interpret it as a call to arms, making bad law in every hard case he encounters.
And in case you think I'm joking, here's your champion of the First Amendment.
http://groups-beta.google.com/group/alt.impeach.bush/msg/814527884aa6c904
http://edition.cnn.com/2003/LAW/03/03/cnna.Dershowitz/
"seperation of church and state". That is my favorite misquote.
I don't get it, PAD. Are you saying that wording originally applied in the wrong context is therefore completely invalid, and should never be repeated, even in the proper context? Or do you just have a pet peeve about misquotations? I disagree with the former and agree with the latter (though I wouldn't say it's a pet peeve of mine).
"seperation of church and state". That is my favorite misquote.
Actually, it's a fairly accurate reference to "wall of separation between church and state." It's just not a quotation from the Constitution.
PAD, I tend to agree with you on this, but as a jazz musician, I'd love it if you never used the words "Jazz" and "George Bush" in the same sentence, especially when you're equating the freedom of expression with the freedumb to sound like a complete ass at every turn.
Now if you were to craft a sentence like, "George Bush helped Jazz musicians everywhere by winning the election, providing inspiration for rage-filled songs about monkeys with the power to kill us all." I might be behind it. But saying jazz is anything like butchering the English language is just plain wrong.
And the guys who are "close" in the way the George Bush is "close" are the guys that don't get called for the gig. If you're gonna be close, you better be a damn sight closer than Dubya EVER is, or you're going to find yourself a really sad and lonely jazz musician.
It's nitpicky, and I'm sure you didn't mean anything by it, but it's hard enough to combat a public that thinks Britney Spears is music without people saying misleading things about an artform that one lives and breathes.
I just read the pamphlet. Twice. Here's my $.06 (Adjusted for inflation.)
Although I agree with PAD that this conviction was the result of a serious miscarrige of justice, I have to agree with the conservatives here that telling people to break a law because it is unjust does not mean someone is innocent. Yes, Thomas Jefferson did it, and yes, the world (or at least this landmass)is better for it, but the fact that soceity later came to accept the injustices he protested as injustices does not neccessarily negate the fact that breaking the law has consequences. Jefferson and co. started a war. What I have come to argue about, however, is semantics, pure and simple. No matter how many times I read that pamphlet, I cannot see how you could prove, legally, that he was encouraging soldiers to desert.
He doesn't once say "do not report for duty." He says "assert your rights." Now, maybe that term is vague. Maybe he really meant "do not report for duty" but used "assert your rights" because it was less likely to land him in jail, but no one but the man himself knows what that inetention is. What the law is concered about is what he said.
He said "assert your rights," which could involve a lot of things. Writing to your congressmen, signing petitions, speaking out at legally-assembled protests.
I'm going to try to make a modern analogy: A guy walks up to me on the street and says, "buy some weed off of that drug dealer on the corner," he is guilty of solicitation, assuming that there's a drug dealer on the corner, whether I buy it or not. He told me to commit a crime.
The same guy walks up to me on the street and says, "the possession, sale, and use of marijuana should be legal, and here's why," and proceeds to convince me. At no time does he tell me to buy weed, he just informs me of why he believes that I should be able to. I sign his petition. Prehaps I'm inspired enough to start walking up to people on the streets to try to convince them to do the same. If I don't buy (or grow) weed, no crime has been committed.
The same guy walks up to me on the street and says, "the possession, sale, and use of marijuana should be legal, and here's why," and proceeds to convince me. Again, at no time does he tell me to buy weed, he just informs me of why he believes that I should be able to. I sign his petition. Then I walk to the drug dealer on the corner and buy some weed. I am guilty of possession, but the guy is not guilty of solicitation -- even if I never would have done it before he spoke to me, the fact that he convinced me that the laws against marijuana are wrong does not mean he convinced me of breaking them.
Schenck attempted to raise a protest concerning a law he thought unjust. While doing so, he attempted to reach the people he considered to be the victims of this injustice, hence the mailing to soldiers. He told these victims that they should "assert their rights." The draftees had no Right to Desert to "assert." They did have the Right of Free Speech and, therefore, the Right to Protest, and Schenck implores them to use it. That is all he did and that is protected under the First Ammendment.
PAD wrote: "Does ANYONE think criticism of the government at time of war warrants prison time? Anyone?"
Didn't Abraham Lincoln, when he suspended habeas corpus during the Civil War? I'm being a tad sarcastic here, of course.
The fact is, you are pumping exaggeratory steroids into your argument when you say people got prison time for just criticizing the government. From what I've read, such arrests were typically for acts of sedition, treason or other illegal acts (as someone else here pointed out), not just criticizing policy.
I think part of the problem in debating the Schenck case is whether people think that "legal" is the same as "just." Schenck's conviction may have been legal (which is questionable) but it certainly wasn't just.
One of the founding concepts of the US of A is that it is the people's duty to stand up against unjust and corrupt practices on the part of the government, a heading under which a draft most certainly falls.
If Schenck was inciting anything, he was inciting people to stand up for their rights as free citizens, which of course, is one of the things a corrupt government will always rush to stamp out.
Not to say that the American government is entirely lost to corruption, but I've noticed that if there's one thing it absolutely will not stand for, it's anybody gettin' in the way of blowing up some foreigners real good.
-Rex Hondo-
Hey! the phrase I made up "exaggeratory steroids" is a Googlewhacking success! Woohoo!
Heh, as if any right-minded person would ever listen to what Zell Miller has to say. (Well, I suppose right-minded people will listen, but I digress.) Nevertheless, it does have to make you wonder about the Georgia Democratic Party. He's so much a DINO, the Flintstones can often be found feeding him.
OK, I have to admit that was a funny line. But Zell Miller has been a Democratic officeholder for nearly half a century. Why do you think he is a DINO? Why don't he and his supporters have a voice in determining where the Democratic Party should stand on imporant issues? Y'all are free to make your own decisions, but I was under the impression that you were UNHAPPY about conceding 168 electoral votes to the Republicans every election. Perhaps your first step in addressing that problem could be not deriding one of the most successful southern Democratic politicians. Miller carried Georgia almost every time he ran statewide, whereas the national Democratic party hasn't carried Georgia in a Presidential campaign since I was 3, it's been that long here in North Carolina as well, Florida only went Democratic once in that period, and Virginia hasn't gone Democratic since LBJ. This is notwithstanding the minor fact that Democrats held the governor's office in Georgia from 1872 until 2003, and North Carolina has had only three Republican governors since Reconstruction. Republican George Bush and Democrat Mike Easley won NC in 2004 by roughly equivalent majorities, indicating that there are swing voters who would vote Democratic if the national party took them seriously, but expressions of disdain for not only the "red states," but even for Democrats from the red states, basically ensure that these states will stay red for the foreseeable future.
I shouldn't complain. It makes life very easy for us RINOs. Our party actually has a chance in hell of nominating a moderate (Giuliani, McCain), and there will be a line out the door of conservative Democrats ready to back us.
I think part of the problem in debating the Schenck case is whether people think that "legal" is the same as "just." Schenck's conviction may have been legal (which is questionable) but it certainly wasn't just.
I could get on board with that sentiment, except for the part about Schenck's legality being questionable. (Not to be picky, but when you have a Supreme Court opinion stating that X is the law, then by definition, X is the law whether you like it or not. For all practical purposes, the law is what the courts will enforce.)
In fact, if I recall correctly, the last time we argued this point I said repeatedly that, had I been the US Attorney in that case, I wouldn't have prosecuted him.
Getting off track for a moment, (or is it back on track?) watching the Daily Show yesterday, I think when Miller lost me was when he equated Holmes with his problem with rap music. OK, now, I don't listen to much rap, personally, but when you argue that "Baby Got Back" falls anywhere near what Holmes was talking about, I think you're a couple stem cells short of a fetus.
On the other hand, I have to give Jon Stewart and the Daily Show in general credit for giving guests from all over the socio-political spectrum a chance to speak, whether they actually agree or not.
-Rex Hondo-
I missed the interview. Did he say he was quoting Holmes? Or was he just mentioning the law?
I believe he mentioned Holmes, but don't quote me on it. I believe it was something along the lines of "Holmes believed you didn't have a right to shout 'fire' in a crowded theater, and I believe that rappers don't have a right to shout filth in my grandkids' ears."
It was something along those lines, but I was winding down from a LONG night at work when I watched it, so feel free to correct me if I'm totally off-base.
-Rex Hondo-
"You remember the draft: It's that thing they eventually abolished and now when politicians try to make each other look bad, they claim the other guys are talking about bringing it back."
Would this be like Rep. Charlie Rangel (D-New York) proposing the reinstatment of the draft and then voting against his own bill?
We're all missing the most important point of the discussion:
Is it all right to yell "Oh no, we've got movie sign!" in a crowded lobby of a theater. Or a Satellite?
I, for one, am in favor of retiring the "shouting 'fire' in a theater" thing from the collective vocabulary altogether. It's dated and overused. I propose that the new, often used example of non-protected speech be "Shouting 'turd' in a crowded swimming pool."
-Rex Hondo-
Regardless of whether it's used correctly or not, I think it's a stupid quote. The way people use it, you'd think shouting "fire" in a crowded theater is the worst thing you can possibly say, which is just silly. In this day and age, someone who shouted it would most likely be ignored anyway.
And also because people who use that quote show a lack of imagination.
If a man needs to smoke really urgently but is caught without a lighter, and yells "Fire!", is that a false yelling?
OK, I think we've made a good start, but we have quite a way to go if we're going to come anywhere near the retcon, stetcon, etc... thread.
-Rex Hondo-
"The English language is becoming the oral equivalent of jazz or horseshoes, where close enough is okay."
I sympathize with your sentiments. And feel your jazz analogy is not far off the mark. Ladyfriend is a semi-pro jazz singer (albeit in Osaka) and has explained to me that the 'jazz' genre seems fluid because much of it relies on improvisation or 'winging' it. Having heard so many variations on the genre, I believe her. Unfortunately, the English language is fast becoming like that, with people trumpeting their quasi-illiteracy by 'improvising' as they go. Turning nouns into verbs by adding "ing" for example. Or coming up with deliberately vague descriptors such as "significant other" ("other" what?).
>"He advocated that people not submit to perceived tyranny...just like that bastard, Thomas Jefferson."
Uh, yes. And remember that the only reason he didn't wind up in jail or hanged was that the rebels won. Otherwise, he'd have shared Schenck's fate - or worse.
Two thoughts that popped into this melon on top of my neck:
1.PAD, I don't think they would've thrown you out of the theater. You'd probably end up sitting across from Louis Black every so often.
2. All this talk about right-minded people makes me think, as I often do, where are all the left-minded people? Just because they agree with, oh, say, YOU, doesn't exclude the possibility that you're ALL nuts. But, then, sitting here in my padded cell with a computer that I made from half a Twinkie, a bed spring, and some thread from my I'm with stupid t-shirt, I'm a nut, too.
Ok, I'm a nit-picker...
It's not illegal to yell "fire" in a crowded theater. What IS illegal is to create a panic situation where no cause for panic exists. And even then, in today's "it wasn't my fault" mentality, if you do alert people to an emergency situation, and in the ensuing panic, some are injured, you can almost bet that some of that injured crowd are going to try and sue you for not alerting the crowd in a manner that would not cause a panic.
Let me chime in as one of those lawyers that does find the Schenk decision incorrect. To a degree, the "debate" ocurring between PAD and Mr. Bjorlin can't really get anywhere, because PAD reads the Schenk pamphlet and sees no solicitation, while Bjorlin reads it, and states that no reasonable person or jury could come to any conclusion other than that it is intended to solicit desertion. Thus, in Bjorlin's opinion, PAD is not a reasonable person , and you can't really debate with someone you consider unreasonable.
There's a current applicatin similar to this. Forgive me for not posting a cite, but there was a cleric or priest of some sort recently convicted of advocating people of muslim influence travelling overseas to oppose the US forces in Iraq and Afghanistan. I don't know the particular details of that case, but let's use it to consider some varying fact patterns:
If his words were to the effect "head overseas to kill US troops wherever you find them," that's a pretty clear statement of incitment to commit the crime of murder, and possibly treason. However, if he used the non-specific "oppose the US," that leaves things less clear. Does he have to make it clear that his view of "opposition" is non-violent in order to his words to be non-solicilatory? (hmmm, is that even a word? I'm on sudafed, kinda loopy). Can you encourage someone to oppose the government and mean something other than illegal acts? I'd say that a reasonable person would assume that, unless you state otherwise, your words against the government are intended to be within the borders of the law, and any acts you encourage are likewise intended to encourage law-abiding acts. The Schenk memo speaks of supporting, and opposing. It call for no specific actions. It's intended to inspire action, and that action is left up to the inspired. How else could one have opposed the draft, other than failing to report? By writing letters of opposition to your elected officials. By converting to the religious groups exempted from the draft. By seeking other ways to avoid the draft. All legal avenues of opposition. Interpreting Schenk's pamphlet as solicitation seems to me to be the act of a paranoid tyrant seeking to crush any opinion in opposition to its own. And it's quite possible that mindset is currently in power again today. Truly, what else can one mean by the statement "if you're not with us, you're against us."
Well, Bush's actual use of that quote was "Either you are with us, or you are with the terrorists," but it amounts to the same thing.
Maybe this is only funny to me because of the sudafed...
On a board my wife frequents (inhabited by pregnant women), one poster was speaking about an issue with keeping a pet that had attacked her child, and arguing with her husband about keeping it.
She mentioned she was "keeping it on the down-low for now."
Now, I know I'm getting to that age where I'm not keeping up with current slang terms. But I'm pretty sure keeping something on the down-low means keep it secret. So, how, exactly, can she keep something secret from her husband when he already knows it? You know things are getting bad when even slang terms are getting misappropriated.
"seperation of church and state". That is my favorite misquote.
I think my favorite is the one from that supposedly damnable liberal media misquoting Gore on his supposedly creating the internet.
David Bjorlin posted:
"Miller carried Georgia almost every time he ran statewide, whereas the national Democratic party hasn't carried Georgia in a Presidential campaign since I was 3, it's been that long here in North Carolina as well, Florida only went Democratic once in that period, and Virginia hasn't gone Democratic since LBJ."
I didn't realize you were a teenager, David. Georgia went to the Democrats in 1992 (Clinton had 1,008,966 votes to GHWBush's 995,252 with Perot earning 309,657 votes; the state's electoral votes went to Clinton).
"You'd think people would learn. And yet there, on the "Daily Show" last night, was Zell Miller, discussing freedom of speech and misquoting Holmes, as if misquoting was a good thing. As if a court decision suppressing disagreement with the government was a good thing."
Ironically, Zell, in his charming dementia, is demonstrating the beauty of free speech. When morons and thugs are allowed to share their ideas, you get to see just how really stupid they are.
Our party actually has a chance in hell of nominating a moderate (Giuliani, McCain), and there will be a line out the door of conservative Democrats ready to back us.
They would never get in the door because all of the extreme right wingnuts that currently control your party would be burning down the convention hall.
There is no way in hell that the current GOP leadership will ever stand for McCain or Giuliani getting the presidential nomination. I've seen how moderate Republicans (or "RINOs" as your leadership lovingly calls them) like Arlen Specter have been actively targeted for defeat in the primary election by their own party (Fortunately for Specter, Bush realized that having him in the Senate was better for the GOP than watching a nutjob like Pat Toomey hand the seat over to the Democrats). I suggest you read "It's My Party Too" by Christie Whitman to see how happy moderates are with the current GOP party leadership.
David Bjorlin posted:
"I shouldn't complain. It makes life very easy for us RINOs. Our party actually has a chance in hell of nominating a moderate (Giuliani, McCain), and there will be a line out the door of conservative Democrats ready to back us."
Oh, really? So why then did the Republican Party back Dubya in 2000 over McCain, and why did no MODERATE Republican challenge Dubya in 2004? Why has the GOP Platform been consistently controlled by its far-right constituents since Reagan's nomination in 1980, even to the point of completely ignoring a plea from the Log Cabin Republicans to include a plank acknowledging diversity in thought among Republicans?
While the GOP did its best to put on a "moderate" face during the Prime-Time coverage of the Convention last year, its platform was anything but moderate. There was a fair number of the GOP's far-right membership that was quite unhappy that their side was relegated to the sidelines with most of their speakers having daytime slots which kept the more hardline members from being seen by potential swing voters (I think the GOP learned their lesson after Pat Buchanan's rather incendiary 1992 convention speech).
I don't see the GOP nominating ANY self-described moderate as long as the party continues catering to the far-right Christian community (by that, I specifically mean the likes of Jerry Falwell, Pat Robertson, James Dobson and Gary Bauer, among others). The GOP learned how indebted it was to that group in 1988, and had that group not been actively courted by the GOP in 1992, Clinton's margin could have been even larger.
Even Bob Dole, who by any current standards would be counted as "moderate", had to turn on his moderate history to keep the Religious Right vote in 1996 (such as when he returned the Log Cabin Republican donation when the Religious Right vocally objected).
"keeping it on the down-low for now."
Actually, the real meaning of that slang phrase makes it even funnier. Ice-T talked about it on SVU some time back:
http://www.amazon.com/exec/obidos/tg/detail/-/0767913981/104-2755765-5007960?v=glance
I've heard that quote so many times without anyone ever mentioning the context, from history and government teachers no less. Kind of sad. However, uncontextualized and under-researched references are pervasive in many forms of media (so long as people can continue to get away with it), so I guess I shouldn't be surprised. Everyone's posts on the subject have been enlightening. Thanks!
I didn't realize you were a teenager, David. Georgia went to the Democrats in 1992
I stand corrected. I misread my source.
Ironically, Zell, in his charming dementia, is demonstrating the beauty of free speech. When morons and thugs are allowed to share their ideas, you get to see just how really stupid they are.
I quite agree. And thanks for illustrating your own point.
PAD's main problem with the use of "fire in a theater" seems to be that people are too stupid to know that it applies only the theaters that are not actually on fire, while at the same time are learned enough to understand the (possible) miscarriage of justice that the nearly-90-year old case from which the quote originates represents.
I understand taking a stand against the decision, and believing that it lead to a slippery slope of law in this country. I can understand, knowing what you do, and feeling how you feel about the origins of the quote, cringing whenever you see it.
The fact remains, however, that inciting a panic under false pretenses (i.e. shouting "fire" in a theater that is not, at the moment, actually on fire) is an example of speech that is not protected, whether you like the example or not. If a person uses it, you getting all pissy doesn't dismiss the point that some speech is not protected, nor does it make that person an idiot. It just makes them a person that is capable of pushing your buttons.
I could, for example, make the statement that "it is illegal to kill another human being." I think most people are intelligent enough to know that, for example, killing an enemy combatant during a time of war isn't illegal. Or that killing someone in self defense isn't illegal. Or that, currently at least, state-sponsored execution of criminals convicted of capital offenses is not illegal. I shouldn't have to write 17 paragraphs of legalese to qualify a simple, clear, and concise statement.
Sure, we could load everything that we write with an exacting level of detail, leaving nothing to be questioned and assuming that our readers are complete imbeciles who would think that the "fire" analogy applies to all theaters whether they are burning or not. Sure, we could do that.
While we're at it, let's get rid of sarcasm. You can't just assume that people know when one of your characters is joking; you'd be safer to make all of them completely literal. And hey, let's also get rid of the metaphor and the simile; people could get confused and really think that "It's hotter than hell in here" means that it's 9,000 degrees in the room, and they might wonder why everyone isn't bursting into flame.
Come on, PAD. You've taken an extremely weak argument and stretched it into the ludicrous. I don't disagree with your opinions on the Holmes decision, but your feelings about the "fire" example are irrational.
Phinn
Phinn, I think PAD's point is that people do think it's illegal to shout fire in a theater. I can almost guarantee you, were I to pass by the local AMC and see smoke billowing from the roof, flames leaping into the sky, and run into auditorium 3 and shout "the building's on fire! Everyone get out now!", and people were injured in the ensuing panicked rush, some "idiot" surely would try to sue me. Or have me arrested, or BOTH. Because I'm sure there's a whole group of people out there that DO believe that it's illegal to shout "fire" in a theater, whether there's a fire there or not. Because repeated quoting of the statement, taken out of context, leaves just the words and their plain meaning.
Also, just because the statement supports the idea that not all expressions are protected free speech, doesn't mean that using that quote means that the particular form of speech your discussing is likewise not protected. And this, I'd guess, is PAD's source of finding the idiocy here. Because anyone can say "you can't say X, just like you can't shout "fire" in a theater!" And when X = some dirty word/sexual content/violence/bad satire, the fire reasoning just doesn't help explain why that particular expression isn't protected. The idiocy comes up because sometimes, the fire statement is the only reason you'll get from the party trying to limit free speech.
"Well, OK, but you have to accept that you're advocating a change in centuries' worth of legal doctrine. In my jurisdiction at least, the law does not distinguish between soliciting someone to commit a violent offense and soliciting someone to commit a victimless offense. PAD's claim is that Schenck's conviction was a misapplication-- not to say travesty-- of free speech law, which it's not."
Well, yes, it is a travesty, since nowhere in Schenck's pamphlet does it explicitly say "Break the law." Furthermore, there are specific laws that prohibit someone soliciting someone else to commit a violent offense. There is also a specific law--or Constitutional Amendment--that forbid Congress from interfering with someone who is NOT soliciting a violent offense, but merely saying something the government disagrees with. Any prosecution that falls within First Amendment purview must, MUST be held to a higher standard. The Schenck prosecution, as well as the prosecution of others who merely advocated the US staying out of the war, was held to a lower one.
"Schenck's conviction was "unassailable?" Hmm. Well, I'm no lawyer, but there's a considerable body of writing from people who *are* lawyers who assail it just fine.
And I can fire back a stream of lawyers who think it's perfectly valid, starting with me."
Irrelevant. YOU are the one who said Holmes' argument was "unassailable." "Unassailable": Not liable to attack, doubt or question. I pointed out that others have indeed attacked, doubted or questioned it. So you were wrong. Yet now you turn around and say, "Others think it's valid," and you also haul up a Dershowitz opinion that seems off the mark, but it's also irrelevant because it doesn't alter the fact that Holmes' opinion is not unassailable. It's this sloppy application, illogical thinking that I'm railing about in the first place.
"The fact remains, however, that inciting a panic under false pretenses (i.e. shouting "fire" in a theater that is not, at the moment, actually on fire) is an example of speech that is not protected, whether you like the example or not. If a person uses it, you getting all pissy doesn't dismiss the point that some speech is not protected, nor does it make that person an idiot. It just makes them a person that is capable of pushing your buttons."
No, it does make them an idiot, because more often than not, they haul out this misquoted cliche as some sort of intended argument stopper, the ultimate trump card. "Aha! Well, as Oliver Wendell Holmes said, protected speech doesn't mean you can shout fire in a crowded theater!" My response is, (1) No, he didn't say that, (2) the context in which he did say it was irrelevant to the sentiment expressed, and (3) the case in which it was said was a miscarriage of justice involving a government practice that has since been abolished and (4) if the standard applied by the high court in 1919 was applied now, half the bloggers on the internet would be liable for prosecution. Which is why I think it's time to retire this overtired, inaccurately quoted and contextually suspect "truism" and show the wit to come up with something else, such as...oh, I don't know...Free speech doesn't include falsely shouting WMDs in a foreign country.
PAD
Two other inaccurately quoted truisms to retire (while we're at it, though this is entirely unrelated to the thread):
"The exception proves the rule" (from the Latin, Exceptio probat regulam, or something similar, which really means 'the exception tests the rule.' The definition of the word 'prove' has evolved over time.)
"Good fences make good neighbors". An accurate quote from Robert Frost's poem, but Robert Frost was not advocating this. This is the argument given by the narrator's neighbor. The narrator (and by extension, Frost) takes the opposite view.
"It is just an excuse to call a conservative an idiot."
Do we really need an excuse? hahaha Oh...don't cry, just kidding.
Unfortunately, PAD, I don't see the cliche being retired anytime soon for two reasons:
1) Regardless of its origins, the phrase has taken on a life of it's own. I think precisely because most people don't know about its original context, they feel very comfortable using it.
2) Twisted and abused though it may be, it is still a convenient short hand for most people to use to define a limit on free speech most people can agree on: Not causing an unnecessary panic in a theater. That some people try to use it to justify further limitations on free speech (extending the FCC's unconstitutional censorship powers to cable) will only increase its usage.
Loved your analogy about the bloggers, though. I personally can't wait for the next democratic president, when all of the bloggers who right now are saying that any questioning of the president is treason will transform overnight into stallwart defenders of the right to dissent.
"I can almost guarantee you, were I to pass by the local AMC and see smoke billowing from the roof, flames leaping into the sky, and run into auditorium 3 and shout "the building's on fire! Everyone get out now!", and people were injured in the ensuing panicked rush, some "idiot" surely would try to sue me. Or have me arrested, or BOTH. Because I'm sure there's a whole group of people out there that DO believe that it's illegal to shout "fire" in a theater, whether there's a fire there or not. Because repeated quoting of the statement, taken out of context, leaves just the words and their plain meaning."
You really think you live in a world where getting people out of a burning building will get you sued and arrested? You must REALLY be for tort reform.
I think that the number of people who actually believe that it is illegal to shout "Fire" in a burning theatre is very very very small. I know it's comforting, in some odd way, to believe that one is surrounded by idiots but it's probably less true than many would like to think.
" I personally can't wait for the next democratic president, when all of the bloggers who right now are saying that any questioning of the president is treason will transform overnight into stallwart defenders of the right to dissent."
And the Democratic bloggers will trot out the many defenses they gave Clinton. Yawn. Live long enough and this stuff becomes as surprising as the order of the seasons.
I'm surprised that nobody has tried to claim that all of our uses of the word "idiot" are, um, idiotic since, by the old use of the word, it refered to someone having a mental age below three years and generally being unable to learn connected speech. Whereas an imbecile was a person with a mental age of from 3 to 7 years. If an idiot studied really hard they might hope to become a imbecile. They might even make it all the way to moron, though this usually required some graduate work.
Always interesting to hear the original intent of a statement that has become widely, yet erroneously used.
My favorite is "I think, therefore I am." Used by many with the intent of stating that inidividuals know that they exist, but the original point was actually to point out that we can't be sure of any of our perceptions or even the existance of others. We can only be sure of our own consciousness. Heady stuff indeed.
On a less brain hemorrhaging level, I find a pet peeve of mine to be when words like "retard" or "gay" are used to disrespect someone else when the issue has nothing to do with sexual identity or biology.
And the Democratic bloggers will trot out the many defenses they gave Clinton. Yawn. Live long enough and this stuff becomes as surprising as the order of the seasons.
I believe that was my point.
If an idiot studied really hard they might hope to become a imbecile. They might even make it all the way to moron, though this usually required some graduate work.
So there's hope for Bush after all.
Ding ding ding! And the person who had 10-12 minutes in the Office Pool for "How long would it take for someone to make a Bush joke when the words "imbecile" or "moron" are used" wins!
Pavlov's dogs were less dependable...
Hey, when even his wife makes jokes about his stupidity (milking a male horse), what do you expect?
Thanks. I'm glad somebody besides me knows the actual history behind that (mis)quote.
You can, however, shout "Fire!" outside an old folks home; it's more fun if you wax the steps first.
(Kidding! KIDDING!)
"You really think you live in a world where getting people out of a burning building will get you sued and arrested? You must REALLY be for tort reform"
We live in world where if you save someone from chokeing, but injure thier back they can and have sued.
"I know it's comforting, in some odd way, to believe that one is surrounded by idiots but it's probably less true than many would like to think."
I don't think I'm surrounded by idiots. There are a multitde of them to be sure. I do believe that I'm surrounded by assholes. They are everywhere!
JAC
>>You really think you live in a world where getting people out of a burning building will get you sued and arrested? You must REALLY be for tort reform"
JAC:
>We live in world where if you save someone from chokeing, but injure thier back they can and have sued.
They can certainly attempt it, but Good Samaritan Laws, which I think have taken hold in most if not all states in the nation, have allowed those looking enact a good deed (saving someone from a fire, CPR, etc) without expecting compensation to do so without fear of being sued.
Fred
I think my favorite is the one from that supposedly damnable liberal media misquoting Gore on his supposedly creating the internet.
For God's sake, do you want the wav file of him saying, "During my service in the United States Congress, I took the initiative in creating the Internet"? It was poor word choice aggrandizing
his genuine commitment to funding the internet's development into what we have today. What's the big deal?
PAD wrote Schenck's conviction was "unassailable?" Hmm. Well, I'm no lawyer, but there's a considerable body of writing from people who *are* lawyers who assail it just fine.
I responded And I can fire back a stream of lawyers who think it's perfectly valid, starting with me."
PAD wrote back Irrelevant. YOU are the one who said Holmes' argument was "unassailable." "Unassailable": Not liable to
attack, doubt or question. I pointed out that others have indeed attacked, doubted or questioned it. So you were wrong. Yet now
you turn around and say, "Others think it's valid," and you also haul up a Dershowitz opinion that seems off the mark, but it's also irrelevant because it doesn't alter the fact that Holmes'
opinion is not unassailable. It's this sloppy application, illogical thinking that I'm railing about in the first place.
And it's this willful blindness to ordinary English usage that people have been critiquing you about throughout this entire discussion. To say a rhetorical position is "unassailable"
doesn't mean that no idiot could possibly dispute it; it means that the position is demonstrably right. In all honesty, there is enough evidence of evolution that the truth of complex life
forms developing from lesser life forms should be unassailable. That doesn't preclude zealots (many of whom do in fact vote for a lot of the same people I vote for) from disputing the point.
The word "unassailable," when used to refer to a philosophical or rhetorical position, is a military metaphor. The fact that people have died assaulting an "unassailable" fortress doesn't
precisely undermine the description; a failed attack is simply irrelevant. My reason for bringing up Dershowitz's other claims is merely to help illustrate that the simple fact that someone, whom I consider to be a fool, made some specious criticism of this position does not suggest to me that the position is really
vulnerable. For that, you'd have to convince me that someone made a VALID criticism of the opinion, specifically in this case that Dershowitz was right, and I don't think Dershowitz has been right about much of anything in a very long time. William Kunstler was a brilliant radical First Amendment scholar whose
criticism I would take seriously. In contrast, Dershowitz is a loon.
This thread is rehashing a lot of the same issues we went through last summer when we had the same argument. (Go look.
http://www.malibulist.com/mt/mt-comments.cgi?entry_id=1784 ) I said twice last time and once already this time that it was a crappy case that shouldn't have been prosecuted. The jury
evidently was convinced beyond a reasonable doubt that Schenck violated the Espionage Act by publishing these pamphlets; I've been using the term "solicitation," because that's essentially
the nature of his violation, but there's a good argument to be made that the Espionage Act really did proscribe a broad enough category of conduct to cover what Schenck did. There's also a
really good argument to be made that the Espionage Act was a lousy law. But that doesn't change the fact that the law was correctly applied then, and that, but for the substitution of "imminent" (for "present," the law of free speech under Brandenburg is very close to the law in Schenck. You may think it's
wrong MORALLY, and I'd frankly be inclined to agree with you, but LEGALLY Holmes was right.
Well, yes, it is a travesty, since nowhere in Schenck's pamphlet does it explicitly say "Break the law." Furthermore, there are specific laws that prohibit someone soliciting someone else to commit a violent offense.
Maybe in your jurisdiction. In my state, and under common law, there is one law, and it isn't even a statute. It is a felony to entice, advise, counsel, incite, induce, order, or command
another person to commit a felony with the intent that the other person commit that crime. There is no distinciton between violent and nonviolent felonies. Nor is there any requirement that the incitement be "explicit," only that the jury be
convinced beyond a reasonable doubt that the solicitor intended to persuade someone to break the law. You can rail all you want against the morality of the prosecution, but its legality was
sound.
In any event, I am baffled by your tenacious attacks on the Schenck case, when the Debs case is the one thats indefensible. Debs was in fact prosecuted for the sedition you
claim Schenck was prosecuted for. That was in fact the horrible abuse of the First Amendment that you allege in Schenck. Your comment, "(4) if the standard applied by the high court in 1919 was applied now, half the bloggers on the internet would be liable for prosecution," is utterly wrong when applied to Schenck but completely accurate when applied to Debs. Why do you persist in jumping all over the wrong case?
What's the big deal?
The fact that people who like to rip into Gore boil it down to the misquote of Gore saying "I created the internet".
But then, as your comment indicates, who gives a damn if we misquote a Democrat, eh?
This whole bloody thead is about the ability of dumbasses to misquote people, and you sum it up in "What's the big deal?" Wonderful contribution on your part.
Regarding David's comments on the definition of unassailable...
I have never heard of anyone using unasailable in the "ordinary English" definition given. I'm a pretty smart person, though by no means extraordinarily so. However, because my intellegence and education are demonstrably true (at least as much so as evolution is), it should be unassailable by this ordinary definition? Of course, someone will probably claim that my intellegence is a much more subjective issue. However, in the post-modern world, most things not of a calculable nature are viewed as subjective.
The problem with this muddled definition of unassailable is that it seems to come in degrees. When a word has an "un" in front of it, it should be used as "not" or "cannot be" rather than "practically not" or "close to not being so." So, on the English usage issue, I have to agree with Peter that we should use the words which best fit the definition we are looking for. C.S. Lewis had a lot to say about how much confusion can be caused when we muck about with meanings.
If a group of lawyers who have studied the law (no matter how stupid you may think they are), attack a position, then that position is not "unassailable," because it is in dispute. I will grant you that definitions do change over time, but some words (especially those with prefixes) have pretty consistant meanings. The reason we have so many more words that mean almost (e.g. practically, about, nearly, mainly, etc.) than words that mean "definitely" is so we can pinpoint these lesser degrees. We need to have concrete definitions for words if we are to mean anything at all.
I'm not trying to be over-critical. Just expressing my very assailable opinion.
But then, as your comment indicates, who gives a damn if we misquote a Democrat, eh?
Interesting take on the discussion. I thought your point was "who gives a damn if a Democrat misstated a fact, eh?" Gore wasn't so much "misquoted" as "busted," particularly when the media "misquotations" of him are usually followed by playing the clip where he said it. You seem determined to imply that he didn't make that claim... when he did. I don't care that he did. He only slightly misstated his role. So yes, what's the big deal? Why are you unwilling to concede that he made the statement, "I took the lead in creating the internet"?
Re: unassailable
I'm standing by my hyperbole. I maintain that the position is empirically, absolutely correct. The fact that other people are wrong about it doesn't make it ambiguous or subject to reasonable dispute. Unreasonable dispute doesn't bother me.
I'd like to suggest, in respect to Gore's "While in Congress, I took the initiative in creating the Internet", that we apply the same literalism in attacking the statements "Ronald Reagan brought down the Berlin Wall" (104 Google hits, and I didn't see him among all those Germans carrying pickaxes in 1989, after all), and "George W. Bush is winning the war on terror" (771 hits, and let me know when Bush starts shooting someone in person. Not that he's supposed to.) Rhetorically, we routinely allow politicians to personify the results of their policies as if they themselves had committed the specific actions implied by them.
Sorry -- the 771 hits if you take out "George W." from "Bush is...."
Rhetorically, we routinely allow politicians to personify the results of their policies as if they themselves had committed the specific actions implied by them.
I absolutely agree. Which is why I keep saying, "he only slightly misstated his role... what's the big deal?"
PAD, I think you know what he meant when he misquoted. Like so many other folks out there, you're more interested in nitpicking on something that is ultimately irrelevent than in the actual issue he was discussing. Not everyone is a cunning linguist like yourself.
So what if Zell Miller and General Ross (from your Hulk What If..? story) have something in common? These kinds of errors just don't matter anymore like they used to, in case you haven't noticed.
As to whether ANYONE thinks criticism of the government in time of war warrants prison time, of course; Many (perhaps including a majority of the current Congress) do. They are wrong, but it is dangerous to assume all people think clearly and fairly. Most of those favoring Schenck's imprisonment work on the assumption that "It's the law: Who are you to oppose it?" Schenck held the somewhat reasonable, and certainly defensible, position that the law as it existed was wrong and it needed to be changed. If opposition to the way things are at present is illegal, perhaps this country would be better off without Legislative, Executive and Judicial branches: They just waste time creating, executing and interpreting new and existing law, rather than pledging eternal fealty to the status quo. A board of holy men could rule on the orthodoxy of any proposal. Its been tried before - they called it the Taliban.
Criticising one's own country while it is at war (especially in an effort to protect itself) is fine, as long as it doesn't lower the morale of the troops and the men who volunteer to fight said war. I don't think it warrants prison time, but it's still a shitty, selfish thing to do... speaking as a former serviceman.
Criticising one's own country while it is at war (especially in an effort to protect itself) is fine, as long as it doesn't lower the morale of the troops and the men who volunteer to fight said war. I don't think it warrants prison time, but it's still a shitty, selfish thing to do
Not to disagree, but it seems Schenck was critizing the people running the Government, not the country. Basically he was saying the actions of the politicians (passing the draft) was in contradiction to what this country stands for (freedom). Just my interpertation.
Darin:
>Criticising one's own country while it is at war (especially in an effort to protect itself) is fine, as long as it doesn't lower the morale of the troops and the men who volunteer to fight said war. I don't think it warrants prison time, but it's still a shitty, selfish thing to do... speaking as a former serviceman.
I understand what you are saying, Darin. Unfortunately, even if someone who wanted to protest a war and keep the troops' morale in mind, it is unlikely that any parameters as to what would "lower the morale". It can easily be argued that protesting against a war is not only not selfish, but also an extremely patriotic thing to do. I recall the dissenters of the Iraq War here in the U.S. were a relatively small number, most of whom were met with eye rolls, sneers, or simply ignored all together. To continue to protest the upcoming and then ongoing war based on lack of evidence at the time, the alienation that it was causing with nearly the entire world at the time, and with potential long-term costs towards one's country in mind is pretty patriotic in my mind. One shouldn't ever confuse nationalistic tendencies, which tends to be dangerous, self and unhealthy thinking.... with patriotism.
Fred
I absolutely agree. Which is why I keep saying, "he only slightly misstated his role... what's the big deal?"
I was referring to the fact that everybody ELSE likes to misquote Gore, yet you are willing to carelessly ignore them for it.
Apparently, it is ok to cut words from quotes, to make them mean something their not, and then not give a damn about it later on. That is the case with Gore's quote.
People complain on all sides that quotes are never taken in context, or are never taken in full, and thus meaning is lost or intentionally warped. That Ward Churchill guy here in Colorado is a great example.
It easily becomes a "big deal" then.
After trying to catch up and read all these posts, I have to Quote Prof. Gumby --"My brain hurts".
It'll hafta come out!
Sorry, couldn't help myself. :P
-Rex Hondo-
Criticising one's own country while it is at war (especially in an effort to protect itself) is fine, as long as it doesn't lower the morale of the troops and the men who volunteer to fight said war. I don't think it warrants prison time, but it's still a shitty, selfish thing to do... speaking as a former serviceman.
Hm. It seems to me that the servicemen and women are fighting for our country and constitution. If someone is protesting the reasons for the war or criticizing the government then that person is doing one of the most American things he can: exercising his freedom of expression. Isn't that what the soldiers are fighting for?
Especially if it is earnest, honest criticism, how is it shifty and selfish?
Eric
Criticising one's own country while it is at war (especially in an effort to protect itself) is fine, as long as it doesn't lower the morale of the troops and the men who volunteer to fight said war. I don't think it warrants prison time, but it's still a shitty, selfish thing to do... speaking as a former serviceman.
You know, I am sick and tired of this argument, especially since it is usually applied to silence some of the most egregious abuses. Does criticizing the abuse at Abu Graib lower troop morale? How is pointing out that a civilized society doesn't strip their prisoners naked and take humiliating photos of them a shitty thing to do? If pointing out the fact that Bush's little adventure in Iraq was based on deliberately distorted intelligence and faulty planning ("It's inconceivable that it will take more troops to occupy Iraq that it will take to invade.") hurts troop morale, well then maybe it's time our soldiers started questioning themselves as to why they are there.
I have tremendous respect for those who have volunteered to defend this country, but that doesn't mean I have to agree with everything they have done or were ordered to do. I know that pesky First Amendment keeps irritating Bush and Company and interferes with their ultimate goal of one party rule, but I thought that was what this country was all about.
Who is really hurting troop morale? The people who want to bring them home or the ones who are treating them like disposable pawns for the neocon agenda?
Who is really hurting troop morale? The people who want to bring them home or the ones who are treating them like disposable pawns for the neocon agenda?
Maybe you should ask the troops that question. Considering they supported President Bush by something like 3-1, I don't think you have much support for your argument.
What a strange thread to garner so much attention... I read the whole thing, after all.
Let's see:
The fire and theater quote pretty much stands on it's own. If Zell actually used OWH name, then yes he did misquote. If he didn't, he didn't quote or misquote, he appropriated a common phrase to delineate that not all speech is protected. Tired it may be, but it does work.
Whether the Schenck conviction was truly unassailable is easily assertained: was it overturned? If it WAS, then it was assailable; if it was NOT overturned, it was unassailable. Anything else is semantics.
Thank you, though, for the partisan slam. That's what I come here to read (clearly because there's something wrong with me...)
I am curious, though. From the sound of the various threads, Peter watches a ton of TV, bowls obsessively, reads everything, and spends a lot of time on the internet... how do you manage to stay so prolific? Do you sleep?????
Maybe you should ask the troops that question. Considering they supported President Bush by something like 3-1, I don't think you have much support for your argument.
Which only proves how effective the Swift Boat Veterans for Slander were.
As for Al Gore and the internet, this just came over the wire:
http://news.yahoo.com/s/ap/gore_award
There is no denying that he did a lot as a legislator to promote the internet and make it what is today. Maybe he could have phrased his statement to CNN a little better, but to constantly harp on the idea that he claimed to have "invented" it is a gross distortion.
Den wrote: "Does criticizing the abuse at Abu Graib lower troop morale? How is pointing out that a civilized society doesn't strip their prisoners naked and take humiliating photos of them a shitty thing to do?"
No, not at all.
But immediately assuming, as a scary number of supposedly intelligent people did, that such activity was condoned, normal operations for the U.S. military, DOES lower troop morale.
In the far-left zest to use this abberration as a springboard to attack the policies of the president and his cabinet, the integrity and morals of all U.S. military people was impugned.
And if, for one second, this phrase flashed through the mind of anyone out there -- "How were we supposed to know if this was an abberration or not?" -- then shame on you all for being that ignorant of the people, standards and policies of your military in the first place.
Russ:
>But immediately assuming, as a scary number of supposedly intelligent people did, that such activity was condoned, normal operations for the U.S. military, DOES lower troop morale.
>In the far-left zest to use this abberration as a springboard to attack the policies of the president and his cabinet, the integrity and morals of all U.S. military people was impugned.
>And if, for one second, this phrase flashed through the mind of anyone out there -- "How were we supposed to know if this was an abberration or not?" -- then shame on you all for being that ignorant of the people, standards and policies of your military in the first place.
Russ, I see a big difference between assuming that it is standard operating procedures and asking that the checks and balances be in place to ensure that these acts do not occur. I agree with you that nobody should assume that it is commonplace. I also belive that there is a great danger in assuming that it never or could never happen and throw out my own "shame on you" to anyone who is blind to either extreme of this faulty thinking.
if it was NOT overturned, it was unassailable
That only applies if the case, or a similar one, was presented to the court & the court upheld the original decision. Even if it was, the decision is still assailable because others can still find ways to try & challenge the decision. Just look at Roe Vs Wade for an example of this.
In the far-left zest to use this abberration as a springboard to attack the policies of the president and his cabinet, the integrity and morals of all U.S. military people was impugned.
1) This statement implies that attacking the president & his cabinet is the same as attacking the troops. It is not. As for this matter being used as a springboard, I assure you that this administration was well under attack long before this came to light.
2) The president & his cabinet were attacked for this because they knew what was going on weeks before the public did, & did nothing about it, They set the tone to allow this behavior through such things as
* Deciding on their own that The Geneva Convention doesn't apply,
* Dismissing the Geneva Convention as "quaint",
* Embracing & following a policy of sending prisoners to countries like Egypt & Saudia Arabia to be tortured because it isn't legal here, &
* Also having torture carried out at Gitmo.
Which only proves how effective the Swift Boat Veterans for Slander were.
Do you really believe that they affected the military vote at all? If so, then you may just be out of touch. The military has always voted primarily for the conservative candidate. The Swift Boat Veterans for Truth affected more retired military and civilians than it did active military.
It is funny to think how out of touch some people can be, a Naval officer friend of mine had to sit through a visit from Barbara Boxer last spring where she ended it with "Don't worry, we'll have him out of office in November" referring to Bush; when most people in the room were thinking how great it would be if she was not in office.
But immediately assuming, as a scary number of supposedly intelligent people did, that such activity was condoned, normal operations for the U.S. military, DOES lower troop morale.
I don't believe that the majority of the US military condoned those actions. However, I also don't believe that it was just the actions of a few low-ranking enlisted personnel. And apparently, the military judge that tossed Prt. England's guilty plea agrees.
1) This statement implies that attacking the president & his cabinet is the same as attacking the troops.
Exactly and this is why I believe the "criticizing the president hurts troop morale" argument is bogus. The second anything embarrassing comes out, the "liberals want America" to fail charges start flying. It's a carefully orchestrated plan to deflect charges away from the administration. First they deny, then the try to minimize the event ("fraternity pranks"), and finally, they call it the actions of just a few bad apples.
There is increasing evidence that the abuse at Abu Graib wasn't isolated and that higher level officials knew about it. We need to hold all of them to the ideals we are supposedly defending. Telling us that it hurts morale doesn't make these charges go away.
And yes, I'm aware that the military votes overwhelmingly conservative, which has always astounded me given: 1) the chickenshit group that currently controls the GOP in which their one prominate member that actually served with honor in combat (McCain) is hated and despised and 2) The way they treat our soldiers as disposable pawns. I'm sure the GOP lies like the one promoted in Arkansas and West Virginia that Kerry was going to outlaw the Bible has something to do with it.
When the Abu Gharib photos first came out, I think everyone was hoping that it was just the remote actions of a few overzealous troops. Since then, there's been, as Den mentioned, increasing evidence that our top leadership condones and approves, and in fact expects, the use of techniques of torture in an attempt to extract information.
The thing that sickens me is that the people that most likely are primarily responsible, those that gave troops like England their orders, are hiding behind these kids that volunteered to take up arms for this country. If anything other than this proves that this administration views our troops as nothing more than disposable assets, I don't know what will.
As I pointed out when this scandal first came to light, this sort of atrocity is EASILY predictable (see Zimbardo prison experiment). Higher ups could have and SHOULD have been able to anticipate it and taken steps to avert it. There's negligence at some level for this to have taken place. Pointing this out and making sure that prisoners are treated humanely is NOT a partisan issue.
Den wrote: "Exactly and this is why I believe the "criticizing the president hurts troop morale" argument is bogus."
Did anyone really read my post? I never said any such thing. What I said is that when the prison scandal broke, far-left critics of the president used it as a springboard to attack him, and there were quite a few supposedly intelligent people who did not just infer, but stated as "fact" that this "deliberate policy" started with the guards and went straight up the chain of command, through the Pentagon, to administration officials in the White House, and hope-upon-hope, straight to the Oval Office. Mind you, this was in just the first week or so after the scandal broke, and it was pretty obvious that no one was even close to having all the facts. And some of you guys are STILL saying this is what happened. Do you all really believe, in your blind hatred of this administration, that hundreds, and perhaps thousands, of DoD employees at all levels would have just sat around and blithely signed off on a bizarre "official policy" like the treatment received by prisoners in Abu Ghraib? Gimme a break!
Personally, I was shocked by the scandal, and I spent 20 years in the military. Back when scandal hit the newswires, I stated right here that if I had been a senior NCO assigned to Abu Ghraib around the time this whole debacle took place, there would have been no scandal, and we wouldn't be having this argument. How do I know? Simple. I know who I am, I know my value system, I know the value system of the military I was a part of, and I was involved with previous military operations where the Rules of Engagement were clearly spelled out.
Did anyone really read my post?
Why are you assuming that everything here is in response to you? It must be a real burden to be that important to everyone. :P
I never said any such thing. What I said is that when the prison scandal broke, far-left critics of the president used it as a springboard to attack him, and there were quite a few supposedly intelligent people who did not just infer, but stated as "fact" that this "deliberate policy" started with the guards and went straight up the chain of command, through the Pentagon, to administration officials in the White House, and hope-upon-hope, straight to the Oval Office.
But when you have a guy (now the US Attorney General, God help us) working in the administration, who writes a memo asking whether and when it's okay to torture prisoners, that should raise eyebrows on any thinking person. And when reports of US agencies sending prisoners to places like Libya and other countries known for their wonderful treatment of prisoners surface, can you honestly tell me with a straight face that this is all just a "few bad apples"? Can you seriously believe that this administration set the tone of interrogation that lead to such abuse, if not not actually condoning it explicitly?
If can believe that, please, tell me what drugs you're taking.
I know who I am, I know my value system, I know the value system of the military I was a part of, and I was involved with previous military operations where the Rules of Engagement were clearly spelled out.
And then those Rules were thrown out the window by Bush and Gonzales.
And then we became aware of how far and reaching our government's practices of rendition and torture have come.
It also sounds like you're a poster child for the propoganda that the Bush Administration loves to throw out there: "See, this former member of the military says there's nothing wrong." Along with poster children like the Swift Boat Veterans for Utter Bullshit and other Lies.
Whatever military you were apart of apparently died after you left.
there would have been no scandal, and we wouldn't be having this argument.
Or you would've done a better job of covering it up.
With the prison stuff in Iraq, it really does make one wonder whether the accusations made about incidents in other wars (such as, oh, Vietnam) actually have some merit.
Zell Miller surrendered to the Dark Side when he gave the speech at the Republican Convention.
I'm really, really sick of hearing anyone who call themself a Democrat claiming that the Dems are "too far to the left for the mainstream". What the hell do they mean by that anyway? You wanna see what "outside the mainstream" looks like? Just look at some of the kooks running the GOP now.
I just love one of the many parts of the Abu Ghraib "solution".
Since one of the main problems that the regime of this country has with the scandal is that pictures of the abuse came out - their solution was to ban cameras at the prison. No pictures, no scandal.
And then to put Mr. "the Geneva Convention is quaint and irrelvant" Gonzalez into the Atty. General position - yup, it was just a bunch of "bad apples" who did the abuse. It doesn't extend the least bit up the chain of command...
Den wrote: "Can you seriously believe that this administration set the tone of interrogation that lead to such abuse, if not not actually condoning it explicitly?"
Using your logic, then, perhaps we should postumously try President Lyndon Johnson for complicity in the My Lai massacre, since Lt Calley was commissioned, trained and sent to Vietnam under the influence of Johnson's administration.
What a crock!
Craig wrote: "Whatever military you were apart of apparently died after you left." and "Or you would've done a better job of covering it up"
It's statements like these that show ignorance and intolerence are alive and well on the extremes of both parties.
re: Posted by R. Maheras at May 5, 2005 03:36 PM
President Johnson & his administration did not write memos to justify torture, did not ignore / dismiss the Geneva Convention, or support the practice of rendition. The current administration did.
Using your logic, then, perhaps we should postumously try President Lyndon Johnson for complicity in the My Lai massacre, since Lt Calley was commissioned, trained and sent to Vietnam under the influence of Johnson's administration.
Aside from the fact that you can't try somebody posthumously, Johnson should be rightfully condemned for escalating and continuing a war long after he and Robert McNamara knew it was unwinnable.
Now, explain to me how that justifies the Bush administration's condoning of torture?
http://news.yahoo.com/s/ap/20050505/ap_on_re_eu/lithuania_bush_5
Wow!
Cuba, Libya, Saudi Arabia, Pakistan, Indonesia, Syria, Iran and dozens of other countries have become democracies over night!
God help me, I do not think I can take four more years of this moron.
And yes, I know none of those other countries I named are in Europe.
Michael wrote: "President Johnson & his administration did not write memos to justify torture, did not ignore / dismiss the Geneva Convention, or support the practice of rendition. The current administration did."
Are you an expert on the Johnson administration? Have you gone through all of Johnson's papers regarding the Vietnam war? Do you know for sure that no Johnson admisistration staffers wrote memos or discussed the pros and cons of various elements of the Geneva Convention? Do you know if any Johnson administration memos or other documents regarding the Vietnam were shredded? Do you know if there are documents from the Johnson administration that were classified during the Vietnam War and have yet to be declassified?
Further, do you have any proof that in Iraq, the U.S. military issued blanket orders to its troops, based on an Executive Order, to ignore the Geneva Convention when handling POWs?
Unless you answered yes to most, or all, of the above, it seems to me there is no basis for your argument.
Den wrote: "Now, explain to me how that justifies the Bush administration's condoning of torture?"
As I said to Michael above, the troops never received any orders that I know of to suspend the torture provisions of the Geneva Convention. And personally, I could care less what academic wranglings went on amongst Bush administration officials about what does and what does not constitute torture. Chances are pretty good some of these same arguments have been going on amongst governments and militaries all over the world since the Geneva Convention was first signed. And until such a time that such administration discussions become law, to me, it's just another think tank BS session.
The bottom line? If you have a beef with the president, that's fine. But don't act like everyone in the U.S. military is made up of mindless zombies who have no concept of what's right or wrong, legal or illegal.
Den....
Um....
What exactly WAS your point then? Bush says that Belarus is the "last remaining dictatorship in Europe", you come back with "Wow! Cuba, Libya, Saudi Arabia, Pakistan, Indonesia, Syria, Iran and dozens of other countries have become democracies over night! God help me, I do not think I can take four more years of this moron."
You then admit that none of the countries mentioned are in Europe, meaning that Bush's statement has NOTHING to do with your reply...well, I'm perplexed.
I thought that Clinton drove some of the right wing into fits of insanity but it's nothing compared to how discombobulated the left has gotten over Bush. You've got 1335 days left. My advice--stay away from firearms.
Are you an expert on the Johnson administration? Have you gone through all of Johnson's papers regarding the Vietnam war? Do you know for sure that no Johnson admisistration staffers wrote memos or discussed the pros and cons of various elements of the Geneva Convention? Do you know if any Johnson administration memos or other documents regarding the Vietnam were shredded? Do you know if there are documents from the Johnson administration that were classified during the Vietnam War and have yet to be declassified?
I never claimed to be an expert. However, if such memos did exist they would have come to light sometime in the last 40 years, as did the Pentagon Papers & the truth about the Gulf Of Tolkin incident.
Further, do you have any proof that in Iraq, the U.S. military issued blanket orders to its troops, based on an Executive Order, to ignore the Geneva Convention when handling POWs?
I also never claimed that such orders were issued. What I pointed out is that this administration has no problem with torturing people. This most likely gave the ones who did the torturing the belief that it was okay to do so because the administration's position is 'torture is acceptable in these situations'.
But don't act like everyone in the U.S. military is made up of mindless zombies who have no concept of what's right or wrong, legal or illegal.
I didn't notice anyone making this claim.
Posted by Den at May 5, 2005 04:36 PM , 04:38 PM
HUH?
"... she ended it with "Don't worry, we'll have him out of office in November" referring to Bush; when most people in the room were thinking how great it would be if she was not in office."
You do realize, of course, that telepathically-derived evidence is inadmissible in court...
As regard Abu Ghraib: When I was in AF Basic Training, we were taught in Military Law class that everything the troops do is the responsibility of their CO. We were also taught that this fact gives the CO remarkable latitude over what he/she can order the troops to do (or not do). Lt. Calley's CO should have been held responsible for the actions of Calley's platoon at My Lai, as he should have known, from personal contact, what sort of man he'd put in charge; similarly, the CO of the garrison at Abu Ghraib should have been keeping better tabs on what these guards were doing. The CO's superior should have known he'd assigned someone to the job who wasn't doing it. The responsibility does climb upward, in similar fashion, although it does get somewhat diluted at each level (thus, the Chief of Staff doesn't get court-martialed for each offense committed, unless he [or, theoretically, she] actually authorized it).
But don't act like everyone in the U.S. military is made up of mindless zombies who have no concept of what's right or wrong, legal or illegal.
Never said that. However, while some in the military & the Bush Administration may have the concept, they certainly don't give a damn anyways.
But don't act like everyone in the U.S. military is made up of mindless zombies
Actually it was Henry Kissinger who did say "Military men are just dumb stupid animals to be used as pawns in foreign policy"
quoted in Kiss the Boys Goodbye: How the United States Betrayed Its Own POWs in Vietnam.
Zell Miller surrendered to the Dark Side when he gave the speech at the Republican Convention.
I'm really, really sick of hearing anyone who call themself a Democrat claiming that the Dems are "too far to the left for the mainstream".
I'm a little bit "sick of hearing anyone who call themself a Democrat" (sic) claiming for "themself" (sic) the prerogative to define the values of America's oldest political party. If and when you do anything nearly as beneficial for either the United States or the Democratic Party as Zell Miller has contributed in his half century of public service, I'll be sure to take your opinion seriously.
What the hell do they mean by that anyway? You wanna see what "outside the mainstream" looks like? Just look at some of the kooks running the GOP now.
Curiously enough, those kooks have now won six straight Congressional elections, five of the last six Senates, and seven of the last ten Presidential elections. At the very least, it suggests to me that the mainstream is very kook-friendly. More probably, it suggests that you have no idea what the mainstream is really like. This is a center-right nation, and a conservative party with slight centrist leanings fares better than a liberal party with almost no centrist leanings. I'm a centrist (ask me about abortion and tax policies some time if you don't believe me), and I vastly prefer the Republican party to the Democrats. In the 1990s Blair successfully moved his party to the center. Clinton didn't. Look which party's won an election recently. Don't blame the one party that's making a concerted effort to appeal to the center for the direction of the country, when the opposition party hasn't been able to campaign on anything more convincing than a charismatic leader since 1976.
At the very least, it suggests to me that the mainstream is very kook-friendly.
And yet this exact same poster still looks at me funny when I say I'm still considering bailing on this whole f***ing place. Go figure.
(And if you think Frist and DeLay represent any sort of mainstream position, then ... well, right now I don't have the words and I'm just reading Bill's last sentence of advice.)
TWL
who's too tired, too stressed and too busy to wade into this thread in any meaningful way
Michael wrote: "Actually it was Henry Kissinger who did say "Military men are just dumb stupid animals to be used as pawns in foreign policy"
Ha! This from a Nixon pawn. I never liked Kissinger anyway -- I always thought he was an elitist. And although he seems to pop up as a talking head every time some U.S. foreign policy crisis arises, I can't recall him being right about much of anything in years.
I wrote: At the very least, it suggests to me that the mainstream is very kook-friendly.
TWL responded: And yet this exact same poster still looks at me funny when I say I'm still considering bailing on this whole f***ing place. Go figure.
1) Surely you didn't miss the sarcasm in using Mr Hall's word "kook." Surely.
2) I give you the funny look for writing off your country as some "f***ing place." Last year I was upset that someone otherwise intelligent would bail. The more I think about it, though, the more I think that perhaps people who feel that way, who are willing to abandon this poor nation in the hands of vicious people like me, should leave. We can get along fine without them.
If and when you do anything nearly as beneficial for either the United States or the Democratic Party as Zell Miller has contributed in his half century of public service, I'll be sure to take your opinion seriously.
Ahh, the automatic rejection of the opinions of others.
As if David himself can speak from a position that would make his opinion any more worthwhile than the opinions from the rest of us.
it suggests that you have no idea what the mainstream is really like.
Well, thankfully, we don't need to take your opinions seriously or anything.
Not unless you're a kook.
1) Oh, I caught the sarcasm. I simply think it's also an accurate assessment, regardless of intent.
2) It ceased to be my country when it became "this f***ing place". I dearly love America's ideals and what America can be ... but am deeply distressed by and fearful of what it has already become and where it appears to be headed. You think that's worth a funny look, that's your business.
And counselor, if you can find any place where I called you "vicious", I'd be interested in seeing it. You were one of the people I'd said I trusted to be impartial on that whole "reinstate the draft" wager with Jerome, let's recall. I've never called you vicious: not you specifically, and not Republicans or conservatives as a whole (or centrists, which is how you just self-identified). The current gang of thugs in power, yes, but I should think you'd be one of the first not to take that as an overgeneralization.
Interested in retracting your assessment, or is it too much fun being dismissive?
TWL
Actually, another thought just occurred to me on this whole "mainstream" question.
To those who say that the GOP is more in touch with America's mainstream, let me ask this: can you name one single person on the far right who is TOO far right to be supported by most Republicans? There are plenty of people on the left who aren't supported by most Democrats (some of whom I think are unfairly maligned, but that's a topic for another time).
I'm not going to get into a litany of current GOP officeholders with connections to awfully scary places at the moment; others can do that if they've got the time to spare. I'm just honestly wondering -- I can't think of a single person on the right who the Republicans don't embrace wholeheartedly, and I wonder exactly how "centrist" or "mainstream" a party can be in that situation.
'Night, all.
TWL
You were one of the people I'd said I trusted to be impartial on that whole "reinstate the draft" wager with Jerome, let's recall. I've never called you vicious: not you specifically, and not Republicans or conservatives as a whole (or centrists, which is how you just self-identified). The current gang of thugs in power, yes, but I should think you'd be one of the first not to take that as an overgeneralization.
I think my problem is in your distinction between the "current gang of thugs in power" and the rest of us centrists and Republicans (and I did self-identify as both). I voted for that gang twice. I've voted for that gang's Congressional supporters several other times. And unless or until Jed Bartlett crawls out of my television and stands for office, I rather suspect I'll continue supporting the party led by that "gang of thugs" for the foreseeable future. So no, I really don't think it's an overgeneralization to equate your criticism of "the gang of thugs in power" with an at least implicit criticism of those of us who intend to keep that gang in power.
I'm glad you think I'm smart. I'm glad you think I'm honest. I only know you from these discussions, but I respect what I know of you as well. You're still wrong, but you're a worthy opponent.
Interested in retracting your assessment, or is it too much fun being dismissive?
Sarcasm is always fun, and sometimes effective. My scorn was really directed at the notion you espoused rather than you personally, although I can see how you'd take it amiss in much the same way that I become irked by dismissive characterizations of the party I choose to support. We can agree to disagree, but I won't moderate my disdain for bailing out instead of staying to fight.
As if David himself can speak from a position that would make his opinion any more worthwhile than the opinions from the rest of us.
That's an excellent point. In fact, it's a corollary of my point. You'll notice I wasn't the one presuming to define who or what truly belongs in a major political party. I don't have that right. But neither does anyone else here, which is why I deride people who appoint themselves to speak for their people.
The only area in which I do claim to speak from a position that makes my opinion more worthwhile than the laity is the legal discussion we had earlier. I have a law degree. In fact, I've been a prosecutor since 1999. So when I make a statement about legal and constitutional interpretation, particularly involving criminal law, I generally have the training and experience to back it up, which I've tried to do by:
*trying to explain what constitutes solicitation to commit a felony
*hunting down the original flyer published by Schenck, which he (arguably) used to solicit a felony (I posted the link to it last year when whe had this debate, which PAD apparently forgot when he threw it back in my face this year. Go look if you don't believe me.)
*posting the link to the Debs case, which was the real travesty
So yes, I do think that experience and knowledge can let one earn the right to speak from a position of authority. Miller earned the right to speak his mind about the party he's been a leader in for so long, and it's utter arrogance and small-mindedness to deride him as something less than a true Democrat.
"To those who say that the GOP is more in touch with America's mainstream, let me ask this: can you name one single person on the far right who is TOO far right to be supported by most Republicans?"
First off; welcome back, Tim. It sounds, though, like you're stressed out--if you are as close to finals as I am, that is quite understandable (not to mention I recall you have an upcoming move AND a small child...frankly, you could probably climb up a tower with a sniper rifle and most juries would be willing to cut you some slack...
As to your question...I doubt that Pat Robertson could get elected dogcatcher in any statewide election. I doubt he'd even get the Republican nomination, unless his opponent was a shrimp-headed welder with pods. What did the fool get when he ran for president? Pat Robertson has demonstrated a lack of connection with you average republican, so much so that he took his ball and went home.
One could also list Allan Keyes as someone who has pretty much destroyed any chance of success in the party by being too far right. The GOP thought they were getting an articulate ideologue when they nominated him against Barak Obama; when he started spouting craziness they cut him off at the knees.
On the talk radio front, while Michael Savage has a following, it isn't anything he can parlay into national support--his TV show was a dud and not too many people marched in the streets to reinstate him when he got canned.
Of course, it all depends on what the meaning of the word "support" is. All these guys have a nice little niche where they do ok for themselves. So does Noam Chomsky and/or a tapeworm. When they venture out into the mainstream though, they get bitch slapped and scurry back to the soft moist soil from whence they came.
What exactly WAS your point then?
The point is, Dumbya is strutting around like he's creating all of these democracies.
What an ass.
As I said to Michael above, the troops never received any orders that I know of to suspend the torture provisions of the Geneva Convention.
I think the key phrase is, "That you know of."
And personally, I could care less what academic wranglings went on amongst Bush administration officials about what does and what does not constitute torture. Chances are pretty good some of these same arguments have been going on amongst governments and militaries all over the world since the Geneva Convention was first signed. And until such a time that such administration discussions become law, to me, it's just another think tank BS session.
So, is "extraordinary rendition" just more think tank BS."
The bottom line? If you have a beef with the president, that's fine. But don't act like everyone in the U.S. military is made up of mindless zombies who have no concept of what's right or wrong, legal or illegal.
Don't you ever get tired of making up things and pretending I said them for your strawmen? Where did I ever say that the military were a bunch of mindless zombies?
It's funny, though, that our esteemed leaders always make a lot of noise about how the people in charge are responsible for everything that happens, until the sh!t hits the fan and then they're the ones who blame it all on a group of mindless underlings.
David:
I think my problem is in your distinction between the "current gang of thugs in power" and the rest of us centrists and Republicans (and I did self-identify as both).
Well, I'll agree that that's YOUR problem and not mine...
To clarify: there are some Republicans I could see myself voting for given the right set of circumstances, and a far larger number of Republicans who, while I'd likely not vote them into office, would not make me think that their presence in office is endangering the state of the nation. It's a very real distinction to me, which is why I've found Bill's occasional "you'll wind up going nuts if you do this every time conservatives are in ascendancy" pat on the head a bit off-putting. I *don't* react this way most times an election goes the "wrong" way.
If a modern-day Victor Frankenstein were to put together some chimera that was specifically designed just to provoke as much fear, anxiety, and loathing in me as possible, I frankly doubt he could do a much better job than Bush, Cheney, Ashcroft (and his heir Gonzales), Rumsfeld, Frist, and DeLay have already proven themselves to be. Every single "hot button" issue of mine is one they've not only embraced, but broken into little pieces and then stomped on the pieces until they can do something really nasty.
That does not mean that every single person who voted for them evokes the same reaction, however. I voted for Kerry this election, but very much as a "lesser of two evils" choice: Kerry was a MUCH lesser evil IMO, but very far from my picture of the ideal candidate.
If you really think there's no distinction between you and those in power, you're implicitly claiming that you agree not only with the public stances they've taken, but with the demagogic tactics they use on a regular basis and with their choice on which issues to prioritize and which ones to downplay. Now if that's really what you mean to say, I'll agree that the distinction is meaningless -- but I'll also be very surprised to hear you say it.
We can agree to disagree, but I won't moderate my disdain for bailing out instead of staying to fight.
This, alas, is really not worth much more than a "bite me". You want to characterize my entire world-view as nothing more than "bailing out instead of staying to fight" without knowing any more of me than what you read here, fine -- but it's frankly conduct unbecoming someone in a profession that's supposed to stand for well-crafted argument and proper research.
TWL
First off; welcome back, Tim. It sounds, though, like you're stressed out--if you are as close to finals as I am, that is quite understandable (not to mention I recall you have an upcoming move AND a small child...frankly, you could probably climb up a tower with a sniper rifle and most juries would be willing to cut you some slack...
Thanks -- and yes, just a bit of stress at the moment. When you think about the big life changes (becoming first-time parents, becoming first-time homeowners, moving cross-country, assuming jobs with likely permanence attached), most sane individuals spread them out. We're doing all of them in the same 12 months, most of them in the same 3 months. Not really avoidable, but also not especially bright.
As to your question...I doubt that Pat Robertson could get elected dogcatcher in any statewide election.
While that may well be true, that's not quite sufficient to meet my criterion IMO. As I see it, if his advice is taken seriously by at least one major figure in the party that qualifies as "support." I don't recall anyone high up in the GOP distancing themselves from Robertson, even after he joined with Falwell in blaming 9/11 on gays and atheists.
(And he may well have demonstrated "a lack of connection with the average Republican", but as my reply to David should indicate I don't think the current leadership is anything even faintly resembling "the average Republican.")
One could also list Allan Keyes as someone who has pretty much destroyed any chance of success in the party by being too far right. The GOP thought they were getting an articulate ideologue when they nominated him against Barak Obama; when he started spouting craziness they cut him off at the knees.
Did they? He lost the election and everyone knew he was going to, sure -- but I don't recall him being "cut off at the knees" by the GOP. On the other hand, I also didn't follow the Illinois race much beyond September, so if there are fun things that happened in the fall I may have missed them.
On the talk radio front, while Michael Savage has a following, it isn't anything he can parlay into national support--his TV show was a dud and not too many people marched in the streets to reinstate him when he got canned.
That's the best choice of the three you've mentioned, though I also wonder here at least a little. Have major GOP figures appeared on his radio show to drum up support? Has he been sent talking points? Has anyone in the leadership quoted him approvingly to make a point? If the answer to any of those is "yes", then I think that still counts as "support."
[I don't know the answer to those last few questions, and don't have time to check at the moment -- they're honest questions, not rhetorical.]
TWL
What constitutes torture? Can we do anything other than politely ask our prisoners for information? Is sleep deprivation torture? What about just enough food to keep one alive, but no more? Is yelling at them torture? Scaring them? Making them eat pork?
Toying with prisoners for fun is wrong; so is electrifying their privates (or colonels). There is certainly a line, but what is the line for most of you?
Well, according to Gonzales, if it causes pain but doesn't leave a permanent mark, it's not torture.
For me, torture is being forced to watch "The Sweetest Thing."
There is certainly a line, but what is the line for most of you?
How about: those things which we wouldn't like to see done to our own soldiers should they become captured?
Not a particularly useful definition, by any means, but I think it's a statement that truly does cut to the heart of the matter.
David, I respect your credentials, and for the most part your words here have supported them. I, too, have a law degree, and have practiced Federal and State enforcement (civil side) since 1996. So, when you say "No person and no jury could possibly be stupid enough to believe that Schenck wasn't trying to incite draftees to avoid the draft," I take professional and personal offense.
Despite my somewhat weekly efforts to disprove the fact, I'm not stupid. I've read Schenck's words, I've read Holmes' opinion, and I've read other cases dealing with the Espionage act, and I can plainly tell you, even assuming the Espionage act does not violate the First Amendment, I think that ONLY a person totally lacking in imagination could read Schenck's words and conclude, as Holmes did, that "we do not see what effect it could be expected to have upon persons subject to the draft except to influence them to obstruct the carrying out of it."
Holmes' dissent in Abrams I think highlights the insanity of this line of cases. In Abrams, Holmes found words that spefically called for a revolution against the US government to NOT violate the Espionage Act, because they were, essentially, "silly." Because the Abrams pamphlet stood little or no chance of actually causing or inciting the action which it literally called for, Homles would have overturned the conviction. Schenck calls for no such specific action, other than for people to assert their rights. In fact, I've seen several references that the action Schenck was encouraging was for notified draftess to sign a petition stating opposition to the draft, not to fail to report.
All of which overlooks the fact that the portion of the Espionage Act giving rise to cases like this was not, as applied in the Schenck case, is totally violative of the First Amendment. This use says that simply telling someone that they have the right to lodge a protest against the draft is illegal.
Here's a perfect example of a true "activist judge:" "When a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight and that no Court could regard them as protected by any constitutional right." Even provided with Holmes' clear and present danger/substantive evil test, this rationale is so amorphus and prone to abuse that it can serve no function other than to violate guaranteed Constitutional rights of citizens. Holmes himself displays the danger inherant in this approach with his varying opinions in Schenck and Abrams.
Zell Miller surrendered to the Dark Side when he gave the speech at the Republican Convention.
Ah, yes. A Democrat switches sides and he becomes evil. A Republican switches sides (like in the recent confirmation hearings) and he's "principled".
To those who say that the GOP is more in touch with America's mainstream, let me ask this: can you name one single person on the far right who is TOO far right to be supported by most Republicans?
Alan Keyes has already been mentioned. Falwell is another. Pat Buchanan. There's lots of far right zealots that can't get out of the primaries.
He lost the election and everyone knew he was going to, sure -- but I don't recall him being "cut off at the knees" by the GOP.
Howard Dean hasn't been "cut off at the knees" for being too liberal either - he's head of the DNC now. Pelosi is Minority leader, but I doubt she would get far in a primary.
DEn wrote: "Don't you ever get tired of making up things and pretending I said them for your strawmen? Where did I ever say that the military were a bunch of mindless zombies?"
Oh, but you most certainly are saying these things if you believe that Abu Ghraib was not an abberration and was the result a sanctioned torture campaign that started at the White House and worked its way down through hundred, or even thousands, of individuals in the DoD -- all the way to the guards in the prison. For this to happen, military folks every step of the way would have had to ignore legally enforceable directives, their training, and their moral beliefs. That is, they would all have to be a bunch of mindless zombies.
Every organization has its bad apples, and the DoD is no exception. Abu Ghraib and other scandals over the years have proved that. But the military does have standards, directives and morals that most troops do their best to adhere to. Which is why it turns my stomach to read the Abu Ghraib theories that try to link some kind of secretive presidential edict to the actions of that handful of idiot guards. For such a fantasy to become reality, it would require widespread complicity by the DoD bureacracy at all levels -- something that just ain't gonna happen.
And the your comments regarding my "That you know of" statement are cute, but see my argument above. If there was such an edict, for it to be leagally binding and enforceable, it would be in the form of a directive or official message to the entire D0D, and there ain't no such animal.
Oh, but you most certainly are saying these things if you believe that Abu Ghraib was not an abberration and was the result a sanctioned torture campaign that started at the White House and worked its way down through hundred, or even thousands, of individuals in the DoD -- all the way to the guards in the prison.
Strawman. Strawman. Strawman
Why would it have to pass through "thousands" of individuals. With the way things are outsourced in the military these days, we have interrogators who essentially report to no one on the ground. It isn't inconceivable that orders were given bypassing the normal channels so as not to leave any fingerprints.
Every organization has its bad apples, and the DoD is no exception.
Yes, and their names are Dick Cheney, Donald Rumsfeld, Paul Wolfowitz (none head of the world bank), and George W. Bush.
So, then all of the charges of abuse at Gitmo are made up then? And I notice you keep ignoring the issue of extraordinary rendition. Facts getting in the way?
To those who say that the GOP is more in touch with America's mainstream, let me ask this: can you name one single person on the far right who is TOO far right to be supported by most Republicans?
Alan Keyes has already been mentioned.
And rebutted.
Falwell is another.
Same statement I gave re: Robertson. He is taken seriously by the Republican leadership, and his "following" is frequently courted. Name me the members of the GOP leadership who have publicly distanced themselves from Falwell.
Pat Buchanan.
See above.
There's lots of far right zealots that can't get out of the primaries.
And, as I said in a later post, "able to get out of the primaries" is not my definition of being supported. All of the above are able to get heard by upper-level Republican figures, and all of the above have their views repeated by same on occasion (and not in order to rebut). That reads a lot like support from where I sit.
He lost the election and everyone knew he was going to, sure -- but I don't recall him being "cut off at the knees" by the GOP.
Howard Dean hasn't been "cut off at the knees" for being too liberal either - he's head of the DNC now.
1) Yes, and thank heavens for that.
2) Hate to break it to you, Mark, but if you look at his record Dean is NOT especially liberal on a lot of issues. If he's "cut off at the knees" for being too liberal, quite a few other people would have to go as well.
Pelosi is Minority leader, but I doubt she would get far in a primary.
I'm just going to leave the absurdity of that statement alone and assume you meant a *presidential* primary.
TWL
Den wrote: "Why would it have to pass through "thousands" of individuals. With the way things are outsourced in the military these days, we have interrogators who essentially report to no one on the ground. It isn't inconceivable that orders were given bypassing the normal channels so as not to leave any fingerprints."
Oh, geez. You watch too many movies.
As far as extraordinary rendition goes, the practice has nothing to do with Abu Ghraib or the DoD -- why should I go off on a tangent just because you want to?
I work for the Federal government. I'm a field office specialist. I deal directly with private and local sponsors seeking funds for projects. There are, officially, 4 people between me and the President. My point is, there aren't hundreds or thousands of people standing between me and the very top of our government. Orders to my agency that have a direct influence on how I do my job don't pass through a very large or lengthy review chain. Sometimes, all it takes is a few brief moments passed from the President to my Agency's secretary, then through the other 3 people in the chain of command, and a verbal instruction is given to me. I may never even know where the instruction originated.
Granted, my job is nothing like that of a soldier, and I can't imagine what order I could be given that might commit me to taking an illegal act like torturing prisoners.
From most reports, many of the lead interrogators at Abu Gharib were civilians, contractors. Where are those people? I'll tell you, they're hiding behind the convictions of soldiers like pfc. England (who I know hasn't been convicted yet, or even currently charged with anything). Would it take an order or a document distributed through hundreds or thousands of DoD employees? Not at all. All it would take is a memo from some general directing the top officer to defer to the civilian experts in all matters interrogation, and to direct the troops to follow them. Or no memo at all. Rumsfeld could call the CO directly, issue the same order, and assure the CO that all was proper, and that the interrogators know the appropriate limits of actions that can legally be taken. No pesky, inconvienent paper trail to mess things up should those photos (that by some accounts were ordered to be taken) ever get released to the public. With no paper with Rumsfeld's signature on it, it's easy for him to hide behind kids that volunteered to serve in our army, risking their lives and their futures, while he risks...well, absolutely nothing.
Because we're talking about an administration that condones and practices torture and that makes it very relevant.
But Bobb, that only happens in the movies, right? :)
Oh, and England has been charged. In fact, she entered a guilty plea, but the military judge tossed it, refusing to believe that you can plea to a conspiracy charge even though the prosecution insists that it's a conspiracy of one.
Oh yeah, there's nothing being covered up here.
Technically, the charges against England went away when the judge declared a mistrial. She can be re-charged by her CO. I know, I'm nit-picking. but I can do that, since apparantly I live in a movie. It's Feds R Us. I often say, what a grand, movie-star life I have. Without all that pesky paparazzi, parties, fans, or, oh yeah, the money.
Where do you think movies get their ideas from? I'd almost guarantee, movies can't even hold a candle to what real-life can offer. Worst disaster movie, ever? Indenpendance Day? The Day After? HHG? Nothing as compared to the power displayed last December. Movies about corporate scandal and corruption? Kid's stories next to the epic tale of ENRON. If you think there isn't an atmosphere of CYA permeating it's way through the government, let me be the first to tell you otherwise. And that seeps down from the top. Those that get to the top are usually experts at pointing fingers (with handy paper trails) to other people.
As far as extraordinary rendition goes, the practice has nothing to do with Abu Ghraib or the DoD
Yes it does, because it's part of the administrations support for torture which has, at least, trickled down to the privates.
pfc. England (who I know hasn't been convicted yet, or even currently charged with anything)
She had pled guilty, but a military judge threw out the charge 2 of the reasons he cited were
1) You cannot have a conspiracy of only 1 person, &
2) She posed for the photos because she was told they would be used for training others how to interrogate prisoners.
http://www.news.com.au/story/0,10117,15194142-401,00.html
http://www.cnn.com/2005/LAW/05/04/prisoner.abuse.england/index.html
Bobb, I work in state government and believe me, I know the CYA culture inside and out. Executes get where they are by making sure they get all of the credit and none of blame. That's what mid-level drones like me are for.
If anyone thinks there's any chance of finding a memo that reads, "You are ordered to sexually humiliate the prisoners at Abu Graib prison, signed Donald H. Rumsfeld," they are being horribly naive.
The movie comment was just a dig at Mr. Maheras who told me that I watch too many movies.
Yes it does, because it's part of the administrations support for torture which has, at least, trickled down to the privates.
I respectfully submit that "trickled down to the privates" is perhaps not a comfortable choice of phrase as concerns this topic. :-)
TWL
Den, sometimes my sarcasm gets too thick...I was joining you in the dig on Mr. Maheras. It was meant playfully...because real life really is much more scary than anything I've seen in entertainment lately. I think that's something our older generation that lived through WWI and II were always aware of, but that those of us in the younger generation are only now coming to grips with. Until a few months ago, very, very few people alive would have been able to say how they would have felt knowing that some 300,000 people died as a result of a single natural event over the course of a few hours. And until 5 years ago, I don't think there were any Americans alive that could have told you what it feels like to have your country's election for its top official challenged in court...something until that point that only occurred in "other, less advanced" places. Places that needed imparital, experienced American observers to make sure they got it right. Today, I'm halfway conviced that the U.S. should allow international observers to oversee our election,to make sure we get it right.
So thinking that a directive to use force and torture on prisoners could only have occurred through a series of written directives is, in my opinion, niave. We don't live in a world (and probably never did) where the bad guys go through the formality of writing their plans down for us to discover and expose them. They're experts at taking the work of the truly talented, claiming it (or the results thereof) as their own, and when some negative consequences come back attached to their actions, there's always someone else that's signed the order, or no order at all. I'll use Bush's recent statement that there's only one dictatorship left in Europe. The response is, so what? What did Bush do to bring this about? Are we to assume that, somehow, because of the US actions in the Middle East, democracy is speading like some kind of plague? It seems that if democracy is on the rise in places where we don't use force to remove the current regime, it has more to do with the will of the people, and very little to nothing to do with the US. Yet there's our President, spouting off like it's all his fault that Belarus is the only dictatorship left in Europe. All the while, hiding behind the many, many layers of scapegoats and plausible deniability for Abu Gharib.
Me:
What exactly WAS your point then?
Den:
The point is, Dumbya is strutting around like he's creating all of these democracies.
What an ass.
If you can find your point in the article you cited I'd sure like to hear it. Bush saying that Belarus is the "last remaining dictatorship in Europe" and that the United States will work with countries in the region to ensure that the next elections there are free is just not the same as him acting like he is responsible for the recent transitions to democratic governments. No matter how much you want it to be.
Bush makes enough verbal gaffes to keep the jokes coming--there's certainly no need to grasp at straws to make up new ones. It looks petty.
TIM:
It's a very real distinction to me, which is why I've found Bill's occasional "you'll wind up going nuts if you do this every time conservatives are in ascendancy" pat on the head a bit off-putting. I *don't* react this way most times an election goes the "wrong" way.
I guess part of it is that I don't consider Bush to be all THAT conservative--he certainly spends money like a liberal. I'm sorry to say that the republicans have figured out that one way to get and keep power is to do what the Democrats have routinely done--buy it. Reagan was more conservative and in many ways so is McCain.
And if McCain wins the next election I'm guessing that a lot of the people who hold him up now as some kind of ideal republican will suddenly find reasons to loath him. But time will tell on that one.
While that may well be true, that's not quite sufficient to meet my criterion IMO. As I see it, if his advice is taken seriously by at least one major figure in the party that qualifies as "support."
Time, respectfully, I see that as being a WORLD of difference from the question "can you name one single person on the far right who is TOO far right to be supported by most Republicans? There are plenty of people on the left who aren't supported by most Democrats (some of whom I think are unfairly maligned, but that's a topic for another time)."
It's gone from finding a person who is not supported by most republicans to finding a person who is not "taken seriously" by at least one "major" party figure. Two completely different standards. Since "taken seriously" and "major" are fairly subjective I doubt I'll be able to do much with the latter question.
And by that standard who exactly are the liberals you mentioned who fit the bill?
I hear ya, Bobb. One thing that I've noticed is that this administration never misses an opportunity to take a victory lap whenever there is good news, like the way that Bush strutted over the Ukraine election. As if he had anything to do with that. But, when bad news occurs it's always someone else's fault, preferably Clinton's.
I swear, if they could have figured out how to blame Abu Graib on Clinton getting his knob polished, they would have.
It looks petty.
Five years of being governed by lies and deception will do that to a person.
Is Bush conservative? Well, to paraphrase another president, that depends on what your definition of "conservative" is. Socially, he's about as far to the right as one can get. Fiscally? No, he spends money like a drunken sailor at Nevada whorehouse. Frankly, I'd prefer a president who is socially moderate and fiscally conservative, so Bush is the worst of both worlds, in my opinion.
As far as the GOP goes, the current trend doesn't bode well for your party at all. The GOP leadership feels it needs engage in almost constant naked pandering to the extreme social conservative faction, even it means expanding the powers of the federal government to ridiculous levels. Since when do conservatives want to interfere with the states' ability to issue marriage licenses? Or prevent pharmacies from disciplining employees who refuse to do their job? But that's the where your party is going and they'll pay a price in alienation of the moderates and fiscal conservatives.
Of course, right now, the Democrats couldn't organize a ham sandwich much less a presidential campaign, so maybe it won't matter.
And if McCain wins the next election I'm guessing that a lot of the people who hold him up now as some kind of ideal republican will suddenly find reasons to loath him. But time will tell on that one.
I rather suspect time won't tell on that one, actually -- I don't expect McCain to ever get closer to the presidency than he was in spring 2000. But time will certainly tell on that prediction as well.
If he *does* ... I strongly doubt that I, at least, am going to "suddenly find reasons to loathe him." More occasions on which to publicly disagree with him or dispute some of his policies, undoubtedly -- but as I keep trying to point out and nobody seems to hear, that's not the same thing.
I did not support Bush I. I did not support Pete Wilson's governorship of CA. I don't support Schwarzenegger's now. That doesn't mean I think there are whole swaths of Hell reserved in their names. I cannot say the same for the top 5-10 officials of the current administration (including Frist and DeLay).
Time, respectfully, I see that as being a WORLD of difference from the question "can you name one single person on the far right who is TOO far right to be supported by most Republicans? There are plenty of people on the left who aren't supported by most Democrats (some of whom I think are unfairly maligned, but that's a topic for another time)."
I wouldn't call it a world of difference, but I agree that it's shifting the question. That's not because I'm trying to dodge your answer, though -- it's because the latter is a better way of encapsulating the question I guess I was really trying to ask, which is "are there any IDEAS too far to the right to be embraced by the current Republican leadership?"
I can give a non-subjective definition of a "major" party figure; in fact, I'll give a list. Bush, Cheney, the next 5 or so people in the executive branch, Rove, and the top 3 or so people in each of the Senate and the House (e.g. DeLay and Hastert, Frist and Santorum). I'll be generous and not include Scalia, Thomas and Rehnquist.
As for "taken seriously", I think I elaborated on that somewhat as well. Do they get meetings with the leadership (as defined above)? Do people who listen to them comprise a major "base" that is courted heavily during election season? Do people in the above list use their ideas?
If that's still too subjective, then perhaps this can't go anywhere.
And by that standard who exactly are the liberals you mentioned who fit the bill?
Off the top of my head: Barbara Lee. Dennis Kucinich. These days, possibly even Michael Moore -- certainly there were a number of centrist Democrats who said that they were "not in the party of Michael Moore", which I hope David Bjorlin, Esq. finds just as offensive as others' statements about Zell Miller.
Hell, before he managed to gain the DNC leadership spot there were an awful lot of Democrats who publicly disavowed any affiliation with Dean.
I'm sure I could come up with others, but it'll have to be another time.
TWL
Off the top of my head: Barbara Lee. Dennis Kucinich. These days, possibly even Michael Moore
None of these examples are any different than the ones that you dismissed on the conservative side.
And if McCain wins the next election I'm guessing that a lot of the people who hold him up now as some kind of ideal republican will suddenly find reasons to loath him. But time will tell on that one.
I would honestly consider voting for McCain. Of course, I don't think he has a shot in hell of getting the GOP nomination. I mean, you can just feel the love when Bush made the joke about seeing a dog that rolled over but only some of time, so named it John McCain. Har har har.
At least with him, you have reason to believe that what he says might actually have some basis in reality.
Dennis Kucinich is someone who can't get meetings with the leadership of the Democratic party? The far left wing of the party that supported him is NOT a major "base" that is courted heavily during election season? None of his ideas are used by people in the Democrat party leadership?
Granted, his candidacy was a joke. He still was given the opportunity to speak at the Democratic convention--which should automatically exclude him from any consideration of being on the list of liberals who fit the bill.
As for Barbara Lee, judging form the long list of bills that she is listed as a cosponsor of, it would appear that there are at least some Democrats in congress who welcome her ideas and support. In fact, she is the co-chair of the Progressive Caucus, which includes as a member one Nancy Pelosi, the Democratic Leader of the House of Representatives. She isn't even close to fitting your own definition.
Well, I did say that list was off the top of my head.
Criticisms duly noted; I'll try to come up with better examples at some later date. (I do think, however, that people like Kucinich are marginalized by Democrats a LOT more than someone equally far to the right is by Republicans. Sure, he spoke at the convention, at a time when only 12 C-Span viewers were watching. Buchanan and Robertson got prime time in '92 and were watched by millions.)
Academics are probably a better source of examples on both sides than politicians, since politicians by nature are public figures and have to (theoretically) make *some* compromises in order to survive. Are there any conservative scholars (from the Heritage Foundation or some similar institution) who are considered sufficiently "out there" to fit the criteria I've mentioned previously? I suspect I can come up with some left-wing scholars who'd fit the bill, but I'll have to work on that sometime that isn't now.
TWL
None of these examples are any different than the ones that you dismissed on the conservative side.
Umm, except for the fact that you have Democrats sitting around and publically condemning these folks.
Which was Tim's point: the Republicans aren't condemning the Pat Robertsons of Jesusland for their outlandish comments and whatnot.
If you really think there's no distinction between you and those in power, you're implicitly claiming that you agree not only with the public stances they've taken, but with the demagogic tactics they use on a regular basis and with their choice on which issues to prioritize and which ones to downplay. Now if that's really what you mean to say, I'll agree that the distinction is meaningless -- but I'll also be very surprised to hear you say it.
I think of it as taking responsibility for my own actions. I think any voter is responsible for the actions of the politicians he supported in the election. It's not the case that "51% of voters were suckered into voting for Bush for another four years so he can complete his destruction of the country." When voters cast their votes, they do so because they believe that they're choosing the right candidate, either beacuse he's the lesser of two evils, as Mr Lynch said about Senator Kerry, or beacuse they genuinely believe that their candidate is an asset to the nation. Most of the people I know who voted for Bush did so because they genuinely supported him, and after a full term in office we had a pretty good idea of what we were getting. We are responsible for his actions, and we are his accomplices. So yes, I think Bush's actions, his tactics, and even criticism of him redound back on us at least to some extent; even if I don't agree with them, I'm one-sixty-millionth responsible for them. I don't think Bush is anything close to perfect, but I'm going to agree with him far more often than I disagree, and I accept responsibility for the choice I made last winter. (I knew who I was going to vote for as far back as when Lieberman dropped out.)
And for what it's worth, I'm a good deal more socially moderate than Bush, but I am a foreign policy hawk, so based on my reading of your posts over the last year or two, I suspect that a lot of the Bush policies that you find least appealing are policies that I supported at least in part. (I had reservations about the Iraq war, but I'm not sure they were the same reservations other people on this blog had.)
Me: We can agree to disagree, but I won't moderate my disdain for bailing out instead of staying to fight.
TWL: This, alas, is really not worth much more than a "bite me". You want to characterize my entire world-view as nothing more than "bailing out instead of staying to fight" without knowing any more of me than what you read here, fine -- but it's frankly conduct unbecoming someone in a profession that's supposed to stand for well-crafted argument and proper research.
"Bailing out" was actually your word choice. Perhaps it does say something about my world view that I folded that into a "fight or flight" dichotomy. All I can say for certain is that you were the one who mentioned in several threads your inclination to leave the country after the election, and this is my gut reaction to the very idea. I cannot imagine a scenario where I would be so distraught by the state of the nation that I would leave rather than try to reform it, and I'd much rather have you around to debate. If you think I'm navel-gazing in your navel, I apologize, but I didn't think of it as a "bite me," at all.
And I know I picked up the "navel gazing in somebody else's navel" image from somewhere, but I don't remember where. Think of this as a half-assed footnote.
Which was Tim's point: the Republicans aren't condemning the Pat Robertsons of Jesusland for their outlandish comments and whatnot.
I'm kind of a Republican and I'll do it: Pat Robertson is as much of a loon as Alan Dershowitz. I won't try to drum him out of the party (q.v. my earlier comments re: hubris and about the Republican party making a more concerted effort to have a "big tent"), but he and I are not, shall we say, in the same wing. I don't have any problem with accepting their support though. To quote Sen. Vinick, "If you can't drink their booze, take their money and then vote against them, then you're in the wrong business."
Tim,
Fair enough, from the sound of it you need to spend more time packing and less time arguing with some dope on the internet! :)
Craig:
Which was Tim's point: the Republicans aren't condemning the Pat Robertsons of Jesusland for their outlandish comments and whatnot.
A simple google search gives such results as Rod Dreyer in the National Review Webpage complaining about Andrew Sullivan making a similar claim:
NOT MY DARLING [Rod Dreher]
Andrew Sullivan, pointing to a couple of reprehensible things Rev. Pat Robertson has done lately, calls him "the social right's darling." That's fatuous, and he knows it. Very many of us social conservatives in no way approve of Pat Robertson's political stands and activities. In fact, today's Washington Post quotes a prominent religious conservative saying that Robertson is all alone on the Taylor issue. I realize it suits Andrew's polemical interests to lump social conservatives (specifically, those of us who oppose gay marriage) in with Robertson's indefensible carrying-on, but it's unfair and inaccurate, and he should withdraw the guilty-by-association charge.
"I work for the Federal government. I'm a field office specialist. I deal directly with private and local sponsors seeking funds for projects. There are, officially, 4 people between me and the President."
For that matter, when I was assigned at HQ SAC, there were exactly 6 people between me and the Commander-in-Chief, including the NCOIC. If Reagan had gotten a wild hair up his ass and insisted on our nuclear plan including an option to drop a 20-megatonner on DNC headquarters, there were only six chances for anyone to countermand that before it landed in my lap - and most of those were career officers, unlikely to endanger their futures over such a "minor" point. (And I'd have never known about it, either - my job was deconfliction, and I never knew what a specific Target Island Number meant. I just knew to make sure that none of the other bombs were anywhere near Bomb A when it went off.)
Incidentally, you'd be unlikely to find an order signed by Rumsfeld - although he has extraordinary power over the flag officers at the Pentagon, the SecDef is not actually in the chain of command. Watch for one signed by the Commander of the Joint Chiefs... ;-)
Me:
If you really think there's no distinction between you and those in power, you're implicitly claiming that you agree not only with the public stances they've taken, but with the demagogic tactics they use on a regular basis and with their choice on which issues to prioritize and which ones to downplay. Now if that's really what you mean to say, I'll agree that the distinction is meaningless -- but I'll also be very surprised to hear you say it.
David:
I think of it as taking responsibility for my own actions. I think any voter is responsible for the actions of the politicians he supported in the election. [...]
Fair enough. I think you're perhaps overinflating your place in the universe in terms of assuming every Bush-related criticism is a reflection on you ... but that's certainly your call to make.
And for what it's worth, I'm a good deal more socially moderate than Bush, but I am a foreign policy hawk, so based on my reading of your posts over the last year or two, I suspect that a lot of the Bush policies that you find least appealing are policies that I supported at least in part.
It's awfully difficult for me to come up with such a ranked list -- a lot of the domestic agenda is stuff I find every bit as unpleasant as the twenty-first century Pax Americana. Anyone as anti-education, anti-dissent, anti-independent-thought, and frankly anti-science as he is is someone I'm perfectly happy to see eaten by fire ants over a period of a few months.
[And anyone saying "he's not anti-education! look at NCLB!" -- save it.]
David:
We can agree to disagree, but I won't moderate my disdain for bailing out instead of staying to fight.
Me: This, alas, is really not worth much more than a "bite me". You want to characterize my entire world-view as nothing more than "bailing out instead of staying to fight" without knowing any more of me than what you read here, fine -- but it's frankly conduct unbecoming someone in a profession that's supposed to stand for well-crafted argument and proper research.
David:
"Bailing out" was actually your word choice. Perhaps it does say something about my world view that I folded that into a "fight or flight" dichotomy.
Perhaps so, yes. Considering that the phrase is usually used in reference to people leaving a sinking ship, I hardly think a fight-or-flight connection is the most appropriate.
All I can say for certain is that you were the one who mentioned in several threads your inclination to leave the country after the election, and this is my gut reaction to the very idea.
It's an inclination to strongly consider it. It was at the time. It still is, though the various political reverses that have occurred over the last month or so have made me a little more hopeful.
I cannot imagine a scenario where I would be so distraught by the state of the nation that I would leave rather than try to reform it,
Clearly -- but with all due respect, your lack of imagination does not equate to me being a coward, which is what your statements have generally implied. I don't want to get all Back-to-the-Future-ish and say "nobody calls me chicken", but you're letting a knee-jerk reaction lead you to ascribing motivations you know nothing about.
You seem incapable of understanding why anyone would ever want to leave this country. Let's see -- just for starters, there's the fact that we are the only major industrialized nation still trapped in the Dark Ages of struggling with idiots who think evolution is in question. That fact alone means that I am intellectually and permanently out of step with some significant fraction of this country -- a fraction that neither understands how the scientific process works nor wishes to. If that fraction becomes sufficiently large that it steers policy (and that's certainly one way to interpret November's results) then this country will become one I feel neither remotely akin to nor, as a result, loyal to.
How exactly you think this equates to cowardice on my part is not only puzzling, but frankly offensive.
And I sincerely hope that you give the matter more thought next time before leaping in with the same snap judgement.
but I didn't think of it as a "bite me," at all.
I think you misunderstood. I didn't mean your statement equated to such; I meant it was the only response a sensible person could make to it. I suspect that this post has made that more clear.
TWL
A simple google search gives such results as Rod Dreyer in the National Review Webpage complaining about Andrew Sullivan making a similar claim:
While that's an interesting result, I doubt I'm the only person who had never heard of Rod Dreher until this very moment. Is there perhaps a more prominent social conservative who's said something similar -- Frist, Santorum, DeLay, Bush, etc.? That would constitute major-league evidence that Robertson's not accepted.
TWL
Bobb wrote: “Granted, my job is nothing like that of a soldier, and I can't imagine what order I could be given that might commit me to taking an illegal act like torturing prisoners.”
And that’s exactly the point. It doesn’t matter how long or short the chain of command is, if one is given an illegal order (and personally, in the 20 years I was in the military, I never was), why in the world would they follow it – especially a senior officer or NCO? In the case of Abu Ghraib, the RINGLEADER was a senior NCO Reservist who, in his civilian job, was also a corrections officer! To say he should have known better is a colossal understatement. And where the hell was the commanding officer while all of this was going on?
In one of your later posts, you yourself said that CYA is normal ops for the government. For any activity, ESPECIALLY one that may be unusual or seems to conflict with directives, there is always a paper or electronic trail to cover one’s behind. In addition, it seems that unusual support requests invariably are spread around through other offices, as the action officer tries to get some second opinions or advice. And, from my experience, if something seems even remotely questionable legally, the general counsel is pulled into the loop as well. And even after jumping the fantasy hurdle of getting a “torturing people is now OK” consensus amongst this relatively small group of military professionals, the policy (which several conspiracy theorists on this thread insist must be widespread) has to be officially disseminated down to the lowest echelons. It would have to go through tens of thousands of experienced officers and NCOs – all of whom have been trained regarding the UCMJ, rules of engagement, etc. – and it would have to order them to ignore all the rules they know regarding enemy combatants, and do something that is clearly illegal. This is just ridiculous, in my opinion.
As far as the “civilians were seen in Abu Ghraib from time-to-time” argument goes, so what? They have their own legal regulations they have to follow – just like you are expected at your federal job.
Den wrote: “Oh, and England has been charged. In fact, she entered a guilty plea, but the military judge tossed it, refusing to believe that you can plea to a conspiracy charge even though the prosecution insists that it's a conspiracy of one.”
What are you talking about? There are, like, eight people allegedly involved in the Abu Ghraib scandal.
Bobb wrote: “Where do you think movies get their ideas from?”
The same place I get my comic book story ideas, Bobb, I make them up!
Michael Brunner wrote regarding my comment that extraordinary rendition has nothing to do with the DoD: “Yes it does, because it's part of the administrations support for torture which has, at least, trickled down to the privates.”
Bull, Michael. Just your suggestion that such a heinous “trickle-down” effect is possible amongst the troops in general is a slap in the face to all military members who do their jobs every day with integrity and decency.
Bobb wrote: “So thinking that a directive to use force and torture on prisoners could only have occurred through a series of written directives is, in my opinion, niave.”
And I would argue that your assertions regarding Abu Ghraib are far too cynical.
R. Maheras, I would humbly suggest that you save your outrage for those people involved in the Abu Ghraib scandal, as they've delivered a far greater slap in the face to decent members of the military than anyone here. You seem much more "outraged about all the outrage", to quote (and possibly misquote) Sen. James Inhofe.
TWL
There are, like, eight people allegedly involved in the Abu Ghraib scandal.
Yes, but if the others weren't charged with conspiracy, and England was, that would make for a 'conspiracy of one', which the judge rejected when he threw out the guilty plea.
Just your suggestion that such a heinous “trickle-down” effect is possible amongst the troops in general is a slap in the face to all military members who do their jobs every day with integrity and decency
No, just to the ones who either take part in the action or the cover-up afterward. For this to be a slap in the face of all military members I would have to say that they all either knew what was going on, took part, or helped cover it up. I made no such statement, and only referred to the ones who did.
Also, part of the reason the judge dismissed the guilty plea is that she didn't know what she was doing was illegal because she was told the photos would be used in a training manual. This implies that someone issued orders.
the RINGLEADER was a senior NCO Reservist who, in his civilian job, was also a corrections officer!
There are also allagations that he engaged in some of this same behavior, though to a much lesser extent, as a prison guard. Also, he worked for a private prison, not a government one, and the company has a reputation for treating the prisoners as they should be.
Tim says:
While that's an interesting result, I doubt I'm the only person who had never heard of Rod Dreher until this very moment. Is there perhaps a more prominent social conservative who's said something similar -- Frist, Santorum, DeLay, Bush, etc.? That would constitute major-league evidence that Robertson's not accepted.
Craig's statement was that, quote, the Republicans aren't condemning the Pat Robertsons of Jesusland for their outlandish comments and whatnot. Dreyer is a republican and one who writes for a magazine that has considerable influence in conservative circles.
If people want to make claims about what broad groups of people are doing they had best not be surprised when those claims are shot down. If I say that Democrats are doing (fill in the blank) and you come back with a list of democrats who aren't I'd better have something more potent than "Well, those aren't the Democrats I was talking about."
Okay -- I figured it was being used as evidence addressing my question as well, but if you're using it strictly to rebut Craig, it obviously works.
TWL
Just your suggestion that such a heinous "trickle-down" effect is possible amongst the troops in general is a slap in the face to all military members who do their jobs every day with integrity and decency.
Maybe it should be a slap in the face.
You're spending all this time being pissed at other posters here, rather than the policies and leadership that lead to Abu Ghraib in the first place.
And if you're so unimaginative to think that policies such as rendition, that comments referring to the Geneva Conventions as being "quaint", that we invaded another nation on a pack of damn lies, haven't contributed to this problem, then there's no further point in discussing this wtih you.
TWL wrote: "R. Maheras, I would humbly suggest that you save your outrage for those people involved in the Abu Ghraib scandal, as they've delivered a far greater slap in the face to decent members of the military than anyone here. You seem much more "outraged about all the outrage", to quote (and possibly misquote) Sen. James Inhofe."
Sorry TWL, you're twisting my argument. In one of my recent posts, I clearly said I was shocked when the scandal happened. And, when the scandal originally broke, I made clear my outrage at those involved.
What irked me then, as now, are those who used the Abu Ghraib abberration as a political springboard to attack the president at the expense of the vast majority of troops who have done nothing wrong.
I was just as incensed when a political Web ad, produced on behalf of the Kucinich presidential campaign, flashed the names of all the war dead, up to that point, to make a political statement. This was exploiting the names of people who could no long speak for themselves -- and people who, had they been alive, may very well have been outraged to have their names associated with such an ad (as would I) -- without the permission of the next of kin. In addition to this blatant exploitation, the ad also outright lied when it said that Bush administration was responsible for the Pentagon policy to not allow media coverage of the caskets of the fallen to be filmed. The policy, for those whio are unawares, was already fully in effect when I was stationed at Dover AFB in the mid-1990s.
If you want to attack your political enemies, fine. I could care less. But do not do it at the expense of the military because if you do, then you no better than the lowest common demoninator of your opposition -- either real or imagined.
Craig wrote: "And if you're so unimaginative to think that policies such as rendition, that comments referring to the Geneva Conventions as being "quaint", that we invaded another nation on a pack of damn lies, haven't contributed to this problem, then there's no further point in discussing this wtih you."
Abu Ghraib is no more the fault of Bush's Iraq foreign policy than the massacre of hundreds of thousands of Rwandans during the Rwandan civil war was the fault of Clinton's foreign policy (or U.N. member nations, for that matter). But, I suppose, depending on which side of the political fence you are on regarding either event, you could probably argue all day long about exactly how you believe your political enemies were directly or indirectly involved.
Or does your "imagination" only look on one side of the political spectrum?
What irked me then, as now, are those who used the Abu Ghraib abberration as a political springboard to attack the president at the expense of the vast majority of troops who have done nothing wrong.
This is at least the second time you've made this claim. Please explain how the troops suffer as a result of critizing the president. Critizing the president for his actions is not the same as saying that the vast majority of troops follow those actions.
Abu Ghraib is no more the fault of Bush's Iraq foreign policy than the massacre of hundreds of thousands of Rwandans during the Rwandan civil war was the fault of Clinton's foreign policy (or U.N. member nations, for that matter).
Apples & oranges. Bush's policy is that torture is acceptable. During the Rwandan massacre no one from the U.N. or Clinton's administration said that mass murder was acceptable.
Critizing the president for his actions is not the same as saying that the vast majority of troops follow those actions.
Makes you wonder what you're supposed to do if you're one of those troops who critizes the president.
Apples & oranges.
Agreed.
Michael wrote: "This is at least the second time you've made this claim. Please explain how the troops suffer as a result of critizing the president. Critizing the president for his actions is not the same as saying that the vast majority of troops follow those actions."
How many times do you want me to explain it? Here's what I wrote earlier in this thread: "Oh, but you most certainly are saying these things if you believe that Abu Ghraib was not an abberration and was the result a sanctioned torture campaign that started at the White House and worked its way down through hundred, or even thousands, of individuals in the DoD -- all the way to the guards in the prison. For this to happen, military folks every step of the way would have had to ignore legally enforceable directives, their training, and their moral beliefs. That is, they would all have to be a bunch of mindless zombies."
In a nutshell, anyone who buys into the widespread torture policy conspiracy theory at Abu Ghraib has to believe that their military as a whole is made up of thugs who do not follow their own laws and directives. That's crap. Like I said over and over again: You can attack your political enemies all you want, and you can be outraged at the guilty parties involved with Abu Ghraib, but don't go dragging the entire U.S. military through the mud with your unproven accusations in an attempt to make your political argument against the president and his administration stronger.
You also wrote: "Apples & oranges. Bush's policy is that torture is acceptable. During the Rwandan massacre no one from the U.N. or Clinton's administration said that mass murder was acceptable."
No, it's NOT apples and oranges. One of the arguments against the U.N. and Clinton at the time was that by not doing anything about the crisis, they at worst tacitly approved, and at best didn't think it was important enough to intervene. And while you may disagree with those critics, it's like I said, one's stance all depends on which side of the political fence one sits on.
There's a rather large in-between category between claiming a massive conspiracy and exonerating Bush completely, however, and it's an in-between you appear to be claiming does not exist.
As others on this thread have said, it's entirely possible for Bush, Rumsfeld, etc. to have created the conditions that made Abu Ghraib much more likely without personally saying "yep, wire 'em up." One does not have to ascribe malice, simply negligence and incompetence.
Is THAT somehow delivering a slap in the face to the entire military, or does that finally meet your standards for "acceptable" criticism of a government and a president?
TWL
TWL wrote: "Is THAT somehow delivering a slap in the face to the entire military, or does that finally meet your standards for "acceptable" criticism of a government and a president?"
Based on my experiences in the military, I was almost certain after the initial, shocking reports were aired that the Abu Ghraib event was the result of stupid behavior by a handful of troops. But I still kept my eyes and ears open for any evidence of wider involvement (yeah, I DO have an open mind). To date, none has been forthcoming.
However, many other people out there, in their zest to attack this administration, and their apparent total ignorance of the U.S. military, took a totally opposite point of view: They posited from the start -- without any proof, and despite the facts -- that the whole event was a massive conspiracy orchestrated the White House. It is this sort of bull-in-a-china-shop wishful thinking that led to the shortening of Dan Rather's career, and that I just can't stand from political zealots of any stripe.
In other words, you're refusing to answer the question other than once again posing as the arbiter of all that is good, sensible, and correct.
Fine. Enjoy talkin' to yourself, dude.
TWL
Oh, but you most certainly are saying these things if you believe that Abu Ghraib was not an abberration and was the result a sanctioned torture campaign that started at the White House and worked its way down through hundred, or even thousands, of individuals in the DoD -- all the way to the guards in the prison. For this to happen, military folks every step of the way would have had to ignore legally enforceable directives, their training, and their moral beliefs. That is, they would all have to be a bunch of mindless zombies.
What has been said is that the torture has been carried out by a few individuals who happen to be soldiers, who may have taken their cue from an administration that says torture is okay. By saying that this would only happen if orders were sent down from the top, YOU are saying that they are mindless zombies, because YOU are saying this is the only way those soldiers could carry out torture is if they were told to.
There are plenty of other ways that those soldiers could have received the administrations acceptance of torture. they could:
* Read it in newspapers,
* Hear it on a news broadcast,
* Hear it from others, or
* Watched / listened to press conferences or congressional meetings where torture was discussed.
After doing one or more of the above, those soldiers could have thought for themselves that they could engage in torture & get away with it.
No, it's NOT apples and oranges. One of the arguments against the U.N. and Clinton at the time was that by not doing anything about the crisis, they at worst tacitly approved, and at best didn't think it was important enough to intervene.
Comparing an action by U.S. troops that the president approves of with an action by foreign troops that the president doesn't approve of is comparing 2 different things with nothing in common.
Besides, had Clinton done anything, he would have been accused of "wagging the dog", "distracting the media", & "putting troops in harms way for no good reason". As happened when troops were sent to Bosnia, even though no troops were killed.
Still waiting for an answer to the question "Please explain how the troops suffer as a result of critizing the president."
How is it if I say 'the president supports torture & is wrong for it' do the troops suffer?
But I still kept my eyes and ears open for any evidence of wider involvement (yeah, I DO have an open mind). To date, none has been forthcoming.
* Continued torture at Abu Grahib.
* Continued torture at Guantonamo.
* Continued shipping of prisoners & foreign nationals (including those of our allies such as Canada & Great Britian) to other countries to be tortured.
The mind may be open but it doesn't seem that the eyes are as well.
TWL wrote: "Fine. Enjoy talkin' to yourself, dude."
Yeah, it seems that I am. Too bad.
Michael wrote: "Still waiting for an answer to the question "Please explain how the troops suffer as a result of critizing the president."
I answered twice -- I'm not going to answer again.
TWL on "bailing out": Considering that the phrase is usually used in reference to people leaving a sinking ship, I hardly think a fight-or-flight connection is the most appropriate.
Or a faltering airplane, but a similar concept. Usually the concept is associated with an airplane that's sustained too much battle damage to be controlled. From dictionary.com: "1. To parachute from an aircraft; eject. 2. To abandon a project or enterprise." "Bailing" with regard to a ship usually refers to trying to remove the water that the ship has taken on.
your lack of imagination does not equate to me being a coward, which is what your statements have generally implied. I don't want to get all Back-to-the-Future-ish and say "nobody calls me chicken", but you're letting a knee-jerk reaction lead you to ascribing motivations you know nothing about.
This is the second time you've made a comment along these lines. I honestly do not want to provoke an argument, but you posted your intentions on the internet without a discussion of your motivation. If you don't want people guessing about your motivations, perhaps you should consider A) explaining your reasoning, or B) not making your personal issues public. Regardless, I said nothing about your intentions. I decried your proposed action. I may have reduced it to a false dichotomy, but my comment wouldn't have changed materially given any possible motivation. Faced with a problem, you can either try to solve it or not. My position is that in this case there is a moral imperative to try to solve the problem. I didn't say anything about why you might choose otherwise.
I am intellectually and permanently out of step with some significant fraction of this country -- a fraction that neither understands how the scientific process works nor wishes to. If that fraction becomes sufficiently large that it steers policy (and that's certainly one way to interpret November's results) then this country will become one I feel neither remotely akin to nor, as a result, loyal to.
And I still don't think your reasoning is very good. (Why you care what I think about your reasoning is quite another question.) I'm an unreconstructed nationalist and I don't believe national loyalties (at least with regard to our nation) should be mutable or conditional. For me that's just a basic issue, on the level of "it's not okay to torture puppies because you're bored." (And if you think I give you a funny look, you should see some of the looks I get around here when I suggest Robert E Lee should have been shot.) Clearly it doesn't hit you at quite the same visceral level it does me. That's fine; you have your hot-button issues, and I have mine. People tend not to be rational about their hot-button issues, and I may be short-fused about this one. I would like to renew my motion to agree to disagree.
Re: "bite me" comments: I didn't mean your statement equated to such; I meant it was the only response a sensible person could make to it. I suspect that this post has made that more clear.
And I feel much better about it; I was worried that I'd been misinterpreted as having made an uncalled-for rude comment. Thanks for the clarification. I respect you without liking your position; hopefully that can be mutual.
Fair enough. I think you're perhaps overinflating your place in the universe in terms of assuming every Bush-related criticism is a reflection on you ... but that's certainly your call to make.
Me individually, perhaps, but there are sixty million of us, and each of us is responsible for our joint venture. In any event, I really wasn't taking personally every single jab aimed at Bush any more than you consider emigration after every Republican victory, but you really reinforced my point just above when you enumerated "one way to interpret November's results" in a way that strongly implied that it was the way YOU interpreted November's results. Recall that what I actually said was that your departure would tend to leave the nation in the hands of "people like me." Since we're the ones who keep putting Republican officeholders in power, the suggestion that we've elected the spawn of Satan does at least implicitly question our judgment, and that's really all I was trying to point out.
David, I respect your credentials, and for the most part your words here have supported them. I, too, have a law degree, and have practiced Federal and State enforcement (civil side) since 1996. So, when you say "No person and no jury could possibly be stupid enough to believe that Schenck wasn't trying to incite draftees to avoid the draft," I take professional and personal offense.
And I'll admit that I let myself be carried away by the rhetoric in that statement. At the very least, I was so focused on explaining why the opinion was right that I exaggerated the factual basis. Although, I think we're even. I think you overshot when you fired back with, I think that ONLY a person totally lacking in imagination could read Schenck's words and conclude, as Holmes did, that "we do not see what effect it could be expected to have upon persons subject to the draft except to influence them to obstruct the carrying out of it."
I overstated my claim because I was careless about language. I gather that you think Holmes said that not because he was totally lacking in imagination, but because he was writing an opinion that was dictated by the result he wanted to reach. I disagree; I think he actually meant it, beacuse I see his point.
I think the case would have turned out very differently had Schenck sent out a mass mailing to everyone in the 10027 zip code (or what passed for it in 1917), or if he'd stood on the streetcorner of Broadway and 116th proclaiming his views. But he actually sent out a targeted mailing to draftees, and only to draftees, if I'm reading the opinion correctly. Consider that he chose his audience, chose to put a copy of the XIII Amendment on the back, and chose to implore them to "assert [their] rights." In all honesty, it looks as though he was advocating desertion, and any ambiguity in the message seems to be a deliberate effort to couch the message in a way that didn't explicitly say "go break the law"-- in other words, it seems that he was trying to get as close to the law as he could without being prosecuted, and he guessed wrong. That's not a Constitutional disaster.
Perhaps I overstated the evidence, and perhaps Holmes did as well. That doesn't make the opinion wrong. A jury was asked to gauge his intent, and found that he acted with the intent to interfere with the draft. You know as well as I do (but the rest of the blog regulars may not, so I'll say it anyway) that in a criminal case the jury's determination of the facts is all but conclusive. The appellate courts don't make an independent inquiry of the jury's findings, because they're so rarely concerned with the facts of a case. The role of an appellate court is to determine whether the law was applied correctly, particularly when the appellate court in question is the Supreme Court (which seems to think its role in life is resolving Circuit splits). Whether the jury was correct in its interpretation of the facts is really irrelevant to making that legal determination. If any reasonable finder of fact could reach the same conclusion that the jury did, the verdict is left undisturbed. With regard to Schenck, I still maintain that at the very least a reasonable finder of fact could reach that conclusion, leaving aside my additional opinion that their guess as to what Schenck was up to was probably accurate, but the Court didn't even have to address that issue. Holmes noted, "The defendants do not deny that the jury might find against them on this point," which suggests that at some point the defense conceded that a reasonable finder of fact could have reached that interpretation of Schenck's intent. Schenck's goose was cooked as a result of that concession. Whether Schenck managed to persuade someone to actually desert is irrelevant; the Espionage Act forbade attempt and solicitation, and success isn't an element of either crime.
Which brings us back to the legal issue in Schcnck: does the fact that Schenck had a political motivation for his attempt to solicit desertion bring the solicitation within the realm of free speech? The Court answered that question, "no," and I don't disagree with them. So much of the debate, last year and now, on the case has turned on the law stated in the case, that most of the posters here should have the same opinion whether Schenck actually did try to interfere with the draft or not, but as it happens I think the jury was probably right, just as I think the Court was certainly right.
David:
If you don't want people guessing about your motivations, perhaps you should consider A) explaining your reasoning, or B) not making your personal issues public.
I've got no problem with people guessing. I have problems with people basing an entire not-especially-rational response on a false assumption. Apparently we disagree on which category this falls into, though you effectively admit later in the post that you're not rational on this point.
I'm an unreconstructed nationalist and I don't believe national loyalties (at least with regard to our nation) should be mutable or conditional. For me that's just a basic issue, on the level of "it's not okay to torture puppies because you're bored." (And if you think I give you a funny look, you should see some of the looks I get around here when I suggest Robert E Lee should have been shot.) Clearly it doesn't hit you at quite the same visceral level it does me. That's fine; you have your hot-button issues, and I have mine. People tend not to be rational about their hot-button issues, and I may be short-fused about this one. I would like to renew my motion to agree to disagree.
Um ... wow. Given the description above, I'll certainly agree to that. Just ... wow. Now I've got to go look for some puppies.
Recall that what I actually said was that your departure would tend to leave the nation in the hands of "people like me."
Actually, you said "vicious people like me" -- a statement which I challenged you to back up. You haven't done so, and I think that extra word is more than a little significant. And lest we forget, in context the statement was a lot more than that -- it was effectively an invitation to leave because "vicious people" like you could handle the country fine without me. I would hardly call that a calm, rational, or reasoned response.
Regardless, I think we've clearly finished the useful part of this conversation, if indeed there was one.
TWL
David, thanks for responding, and I'm glad you were overstating. I hoped as much, given what I've seen from you in the past, and was more than a little surprised to see such a strong statement so close to a personal attack. I was firing back a little, which is rare for me, but I hope I didn't offend.
My initial reaction to Holmes' opinion was that he was, as you suggested, justifying an outcome he wanted to reach. After reading it a few more times, I don't think that's what he was doing at all. Given his dissent in Abrams, I think he truly did feel that Schenck's actions, and more importantly, his intent, were to encourage desertion. I think that he stated it too strongly, in that it was the "only" conclusuon one could make, but I don't think it was totally unreasonable.
On its face, the opinion is pretty solid. But to pick a point, Schenck wasn't convicted of solicitation: if he had, I don't know that anyone would have much of an issue with it. After all, it is pretty established that it's illegal to ask someone to commit a crime. But Schenck was convicted for violating part of the Espionage Act, which forbade pretty much ANY act which obstructed the draft. This not only included the already illegal act of convincing someone to desert, but also applied to words that would encourage legal, political opposition to the draft. That section of the Espionage Act Schenck was tried and convicted under, I think, goes too far and encroaches into First Amendmend protections, and should have been struck down. To paraphrase Holmes' words, Schenck wasn't falsely shouting fire in a theater and creating a panic, he was shouting fire in a theater that was on fire. That act should be protected speech, even in times of war.
The fire analogy doesn't really carry through with Schenck, because of the intent to cause desertion that was found.
I think this is a case where the outcome is probably right, but the rationale, and thus the precedent set, was all wrong, and in the long run, caused more harm than good.
Bobb,
This is a much more interesting discussion now that we've both toned down our venting of frustration. I disagree with you in part with regard to the overbreadth you attributed to the Espionage Act. (http://www.firstworldwar.com/source/espionageact.htm) The section that Schenck was convicted of violating read as follows: "whoever when the United States is at war, shall wilfully cause or attempt to cause insubordination, disloyalty, mutiny, refusal of duty, in the military or naval forces of the United States... shall be punished..." Schenck was specifically accused of attempting to cause a refusal of duty, which I don't think is an inappropriately overbroad offense. I admitted earlier that I was using a word, solicitation, that wasn't in the original opinion because that's what this particular violation boiled down to. I still think my assessment is right. I don't agree with your claim that the statute criminalized political opposition-- it expressly criminalized mucking about with the internal workings of the armed forces, which I think is an absolutely valid exercise of Congress's Article I powers. Every other violation of the Espionage Act either 1) is a specific intent crime, e.g. collecting information "with intent that the same shall be communicated to the enemy," which I think is also constitutionally valid, or 2) is a codification of a common law concept like conspriacy (Section 4) or harboring a fugitive (Section 5). I suspect that solicitation is not mentioned separately or in the conspiracy section precisely because it's encompassed by the substantive offense in Section 3, under which Schenck was convicted.
David, I'd agree with you there, but I don't think that's the section of the Espionage Act Schenck was convicted of. The notes of the opinion state that the conspiracy was corculated among "men called and accepted for military service...tending to influence them to obstruct the draft..." The opinion doesn't contain many more details than that, and I'm almost totally unfamiliar with the legal status of a draftee. Common sense would seem to dictate that there's at least 3 different states: Contacted but not yet reported; reported but not yet inducted into service; and fully inducted into service.
It seems to me that you can't incite dereliction of duty in someone not yet a member of the armed forces. I'll try to look it up later (trying to beat the clock before a meeting), but where in the draft process where the 15,000 men that had passed their exemption boards, and were targeted by Schenck?
The section you cite seems to just be a specific codification of laws that existed elsewhere. But the conviction was for the more general and over-reaching "obstruction" clause. Which is why I think correct result, wrong reason.
From a really quick research burst, exemption boards appear to occur prior to the issuance of induction notices. If that's correct, then the 15,000 targeted by Schenck were not in service yet.
man, i wish that we could get a thread of just PAD and David going back and forth. That's honestly the only reason i kept reading this, right when i thought that one had won the arguement, the other took over! amazing.
I'm basing my opinion on the language of the case itself, which stated that the indictment of Schenck "charges a conspiracy to violate the Espionage Act of June 15, 1917, c. 30, tit. 1, 3, 40 Stat. 217, 219 (Comp. St. 1918, 10212c), by causing and attempting [249 U.S. 47, 49] to cause insubordination, &c., in the military and naval forces of the United States, and to obstruct the recruiting and enlistment service of the United States, when the United States was at war with the German Empire".
In short, Schenck was charged with conspiring under Section 4 to commit a violation of Section 3. I still think that's valid.
I don't think that the technical designation of the conscripts matters. Once they've been summoned, they are under a duty to report, and that is a duty to which the Congress should be entitled to prohibit interference. I agree that the further back in the system the recipients are, the more innocuous the mailing would be; if Schenck had sent the mailing to 15,000 draft-age men, "assert your rights" could plausibly have been interpreted as a call to political action. However, as it appears from the opinion that the 15,000 had at least been contacted by draft boards, that claim strains credulity in this case.
"assert your rights"
Just my 2 cents, but this could also mean show up, but refuse to obey orders, refuse to train, etc. Neither is desertion. I know that these actions would probably break army regulations, but that isn't what the conviction was for.
Showing up but not taking the oath could also apply here. Don't know what effect that would have though.
Showing up then invoking the 13th amendment would put the government on the defensive.
Michael wrote: "* Continued torture at Abu Grahib."
I suggest you stop just reading extremist news sources and give your U.S. military some credit:
Michael, refusing orders would be dereliction of duty, which the Espionage Act covers. Telling someone to disobey a legal order can be construed as solicitation to commit a crime.
David, those are the charges, and abesent more facts as would be discussed at trial, it's hard to say exactly what was before the jury in this case. From Holmes' opinion, it seems to me that the obstruction of the draft ("obstruct the carrying out of it") was the main issue Holmes identified. That's an extremely broad wording that goes beyond the power of the government to control. Someone that writes a letter or works on a petition to congress protesting the draft, and calling for its repeal, could be said to be working to obstruct the draft, and could have been prosecuted under the Espionage act. There's at least some evidence to indicate that this is in fact what Schenck attempted to do: get those inductees, before they made their final report, to sign a petition, with the logical conclusion that said petition would be sent to DC in opposition to the draft. It's very likely the jury saw something else entirely.
The Schenck opinion still makes me uncomfortable. Had Holmes stated more facts that support the contention that Schenck was attempting to incite insubordination, and not merely conscientious objections, I'd be more inclined to agree.
refusing orders would be dereliction of duty, which the Espionage Act covers. Telling someone to disobey a legal order can be construed as solicitation to commit a crime.
I admit, I don't know what all the rules are. I was just throwing out ideas to see what might stick.
I suggest you stop just reading extremist news sources and give your U.S. military some credit
Fine. That's one out of three. The other 2 still continue, and the administration still considers torture acceptable.
"Telling someone to disobey a legal order" is a rather more loaded phrase than Michael Brunner may have meant. Doesn't that presuppose that the order, by the fact of BEING an order, was ipso facto legal? It seems that Schenck's position was that he was advising people that such orders were NOT legal, and therefor should not be considered legitimate. Whether he was correct in this isn't really the issue: rather, one should consider whether one has the right to advocate positions at variance with current practice. If opposition to the status quo is essentially treason, all of the founding fathers were without question traitors deserving of execution, and the Continental Army was a rabble of "enemy combatants" devoid of any right to avoid summary execution or banishment. I would prefer to believe that they were not.
Hasn't anybody seen A Few Good Men? Something doesn't necessarily have to be a direct order or officially sanctioned to be "just the way things are done here." It happens in every single profession. The first time somebody does something either against or simply not covered by the official policy and it's ignored by their superiors, that is a tacit approval, it continues, and the longer it continues, the harder it is to stop.
*Shrug* Sorry, just can't seem to keep from sticking my nose in a rambling tonight. Must be time for another cup of coffee...
-Rex Hondo-