How to dismantle an atomic wingut

I've taken a long haitus hiatus from blogging here, but I have not been able to keep my yap shut. I've been commenting a lot at Glennzilla's place, and occasionally elsewhere.

But the most fun has been a recent string at Balkinization. Brian Tamanaha posted about a ridiculous WSJ column penned by Mr. Torture himself, John Yoo. The post explored, among other things, the ways in which Yoo seemed to be trying to shift the blame for his own criminality.

It is generally immpossible to pick up a comment thread in midstream, but here is the exchange between myself and a particular trollish conservative there.

My open:

First, there is a subtle shell game being played by those who seek to defend both Bush and Yoo. Yoo is blameless because he was just writing memos; Bush is blameless because he just relied on those memos. If what Bush did was, but for the memos, illegal, then there should be consequences for SOMEBODY. It makes a mockery of the advice of counsel defense to allow it to be used this way.

Second, I think those defending Yoo ignore the fact that the role of an attorney is dependent on context. At one extreme, a criminal defense attorney can and should be aggressive in offering any colorable claim on behalf of the accused -- about an event that is obviously in the past. An attorney in private practice advising a client about a possible future action is and should be somewhat more constrained, and should fairly represent the current state of the law. The opposite extreme is a lawyer representing The People and asked by the executive about future actions. In that circumstance, the highest duty is to see that justice is done. The first is an advocate; the third is supposed to be neutral; the second is somewhere in between.

Yoo and Bybee should have been neutral. Instead they were advocates.

If there are no consequences for bad advocacy, I fear for the future of the legal profession, and for our legal system.

Conservative "Charles" takes the bait:

OLC is an advocate, certainly not neutral.

And the trap is sprung:

Care to back your assertion up, Charles?

Because I can back up mine:

"OLC’s core function is to help the President fulfill his constitutional duty to uphold the Constitution and “take care that the laws be faithfully executed” in all of the varied work of the executive branch. OLC provides the legal expertise necessary to ensure the lawfulness of presidential and executive branch action, including contemplated action that raises close and difficult questions of law. To fulfill this function appropriately, OLC must provide advice based on its best understanding of what the law requires. OLC should not simply provide an advocate’s best defense of contemplated action that OLC actually believes is best viewed as unlawful. To do so would deprive the President and other executive branch decisionmakers of
critical information and, worse, mislead them regarding the legality of contemplated action.

OLC’s tradition of principled legal analysis and adherence to the rule of law thus is constitutionally grounded and also best serves the interests of both the public and the presidency, even though OLC at times will determine that the law precludes an action that a President strongly desires to take."

Says who?

Says them:

Walter E. Dellinger, Assistant Attorney General 1993-96
Dawn Johnsen, Acting Assistant Attorney General 1997-98; Deputy AAG 1993-97
Randolph Moss, Assistant Attorney General 2000-01, Acting 1998-2000; Deputy AAG 1996-98
Christopher Schroeder, Acting Assistant Attorney General 1997; Deputy AAG 1994-96
Joseph R. Guerra, Deputy Assistant Attorney General 1999-2001
Beth Nolan, Deputy Assistant Attorney General 1996-99; Attorney Advisor 1981-85
Todd Peterson, Deputy Assistant Attorney General 1997-99; Attorney Advisor 1982-85
Cornelia T.L. Pillard, Deputy Assistant Attorney General 1998-2000
H. Jefferson Powell, Deputy Assistant Attorney General and Consultant 1993-2000
Teresa Wynn Roseborough, Deputy Assistant Attorney General 1994-1996
Richard Shiffrin, Deputy Assistant Attorney General, 1993-97
William Michael Treanor, Deputy Assistant Attorney General 1998-2001
David Barron, Attorney Advisor 1996-99
Stuart Benjamin, Attorney Advisor 1992-1995
Lisa Brown, Attorney Advisor 1996-97
Pamela Harris, Attorney Advisor 1993-96
Neil Kinkopf, Attorney Advisor 1993-97
Martin Lederman, Attorney Advisor 1994-2002
Michael Small, Attorney Advisor 1993-96

http://www.acslaw.org/files/2004%20programs_OLC%20principles_white%20paper.pdf

Charles then brings a different paper clip to a different gunfight:

Mark:

As I already pointed out to you, the primary task of a wartime President is protecting U.S. citizens. He doesn't need the AUMF (or even the Supreme Court) for that.

I really do have better things to do. But when they set the table for me so beautifuilly:

Charles asserts (without citation, to be sure) that "the primary task of a wartime President is protecting U.S. citizens."

But the Presidential oath of office (the very one he perhaps feels was improperly administered?) provides:

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

Seems the founders thought our common good would perforce follow if our highest laws are but upheld. And they strictly circumscribed the ability of any president to "protect the people" in a way that violates the law. I am unaware of any alternative oath for times of war, declared or otherwise.

Charles assumes the conclusion -- Circulus in Probando.

At that point, the vital signs became faint:

bluememe:

The Constitution is not a suicide pact.

I must admit feeling a bit guilty, but that's how it is with guilty pleasures:

I don't normally waste my time with trolls, but I don't mind offering feedback to the author of the trollbot program posting responses under the name "Charles."

Your bot responded to my comment pointing out that the previous trollbot comment was factually wrong by commenting:

The Constitution is not a suicide pact.

The phrase comes from a dissent in Terminiello v. Chicago, a case in which the Supreme Court overturned the disorderly conduct conviction of a priest whose anti-Semitic, pro-Nazi rantings at a rally had incited a riot. The Court held that Chicago's breach of the peace ordinance violated the First Amendment.

It was also used, in slightly different form, in the majority opinion in Kennedy v. Mendoza-Martinez, a case in which the Supremes determined that laws permitting stripping draft evaders of their citizenship are unconstitutional. And the full quote refers repeatedly to the powers of Congress to enact laws, rather than the right of the executive to ignore them.

There is no support in any of these opinions for the proposition that the Constitution is merely aspirational.

While a random number generator paired to a list of incoherent talking points may fairly simulate the conversation of the average conservative, the Turing test remains beyond your grasp, alas.

To which Charles replied:

I am not a program.

Do wingnuts blog of electric sheep?

The whole string is here.