i have read the op article a couple of times now and frankly find it to be a really weak piece of writing. the central problem is the shift it makes between sections 2 and 3.
here:
Quote:
The debate over the legality of what the President did remains unresolved, and is a matter about which legal minds will no doubt continue to disagree, largely along partisan lines. What about the legality of what the Times did?
III
Although it has gone almost entirely undiscussed, the issue of leaking vital government secrets in wartime remains of exceptional relevance to this entire controversy, as it does to our very security. There is a rich history here that can help shed light on the present situation.
|
basically, if you find this article to be interesting at all, you have to buy this shift.
it is not obvious logically--in fact, it seems to me little more than a thinly papered-over non sequitor.
why?
the question of whether the bush administration--a political formation--is bound to act within the law or not ***is not the same*** as that of whether the ny times did.
reverting for a moment to the realm of political theory: if you somehow manage to take john locke's 2nd treatise on government seriously (it is not easy), you find that locke defines tyranny as the type of power exercized by a government in violation of its own laws. beneath this is the question of how strictly one should understand the notion of popular soveregnity at issue in this is the following: the state (switching terms here) is the origin of law--but it fashions law because it (at the level of sentences at least) rests of the authority delegated to it from the people. this is important because this relation poses limits to state action--the state cannot operate outside the laws that circumscribe it and its actions--as the origin of law, there would be a constant danger that the state could arrogate to itself a position that is at once inside and outside it (as a function of the ambivalent position occupied by a material source relative to that which flows from it). it is this threshold that, in the end, distinguishes a legitimate government from tyranny (monarchy in the context of locke, dictatorship in the contemporary context).
the typical counterargument that you see from the administration rests entirely on the notion of the state of emergency or war. the defenses that the administration has floated for tis actions lean heavily on the legal theory of carl schmitt (this is so consistent a feature of the defenses that it cannot be an accident---i think john yoo is heavily influenced by schmitt--the folk who repeat this style of argument probably never read yoo's famous memo, and if they did, did not check the references--but that is speculative)---schmitt was a german legal theorist whose better-known works were published in the 1920s---he was opposed to democracy in principle, arguing that it was incapable of acting in a state of emergency or war with adequate speed--what was needed was a Leader who would emerge through the context of a state of emergency (suspension of ordinary law) and whose function would be legitmate,for schmitt, because the Leader as able to make Decisions--which, he argues, democracies cannot do. for schmitt, democracies are hopelessly caught up in the abstract--where the Leader can deal with the concrete---democracy is subject to interminable debate (a correlate of its abstractness), where the Leader/dictator can Act---the Leader, in a state of exception (emergency, war) embodies the nation in a situation that requires the suspension of popular sovereignty--democracy threatens the "nation" (whatever the hell that is) with fragmentation in such a context.
these two positions are obviously antithetical: locke is arguing for popular sovereignty and claims that the idea that a governmental apparatus derives its legitmacy from the people, from their delegation of power to it, means that it canot operate outside its own legal framework without becoming a tyranny. schmitt is a theory of dictatorship that uses a notion of the exceptional state (of emergency, of war) to legitimate precisely that kind of government. the center of this relationship is, self-evidently, the question of the "exceptional state" or state of emergency.
so the question of whether the administration did or did not violate the law in its various adventures legitimated via their favorite fiction, the "war on terror" comes down to a question of the relation of the state apparatus to the legal system. this relation is fundamental to the legal and political regime itself.
the question of actions undertaken by the ny times operates entirely within the existing legal and political order: as a corporation, the paper is not involved in any way with the question of the balance of power that will obtain at the center of this legal and political order if there is a criminal aspect to their actions in the plame case (to rehearse the terms of the article) then it is a matter of application of law, not one of the relation between law itself and the state that originates it. these registers are different in kind.
in the articles, this basic distinction is papered over via a simple assertion of "relevance" backed by nothing at all--it is a kind of weak writing and weak reasoning unworthy of a university undergraduate paper.
the problem with this is that this transition is asolutely necessary for the article, which follows this bait and switch down a curious logical path to end up in an attack on the ny times. rather than make an actual argument for the linkage of two matters that are, to my mind, unrelated, what the writer does it begin piling on the conservative affirmations of faith as you move into the second section of the article--cheap devices like the assertion (also grounded in nothing) of some kind of anti-bush administration biais in the times--piles of assertions that the writer uses as a substitute for substantive argumentation.
the conclusion of the piece appears to be: the problem here is not that the bush administration appears to have broken the law in a whole host of ways and tried to justify all by referring to its "war on terror"-the problem is, rather, that the press (a generalization from the nyt) reports on these violations. the justification for it is a rather bland "the law is the law"--but leaving it at this would create all kinds of trouble for such logic as there is in the article--so this gets blurred into typical conservative whining about the "hostility" of the press to the poor bush administration.
correlate: my car will not start so could you plunge the toilet?
what's kinda funny in this is that i remember the tenor of the right's endless attacks on the clinton administration for what it took to be its various violations of law: all most of them, focus was on the lockean position. now that the bushpeople are at the helm, the focus shifts to schmitt. this would be bizarre were we not, by now, accustomed to such from the curious world of right ideology.
the upshot of this kind of article is that conservative political thought systematically uses the language of matters of principle to talk about matters of tactics.
this is not the kind of reasoning that a traditional conservative movement would engage with: while one might disagree with more traditional conservatism, at least it is able to distinguish principle from tactics. the american right appears to be unable to do so, and in that inability positions itself as something quite dangerous--a kind of authoritarian movement that speaks to itself, about itself, in the language of the right, but is in fact different, and fundamentally different, from traditional right formations. at the level of legal theory, the administration's flaks in the right press have embraced a legal philosophy central to the rise of fascism without realizing that it is doing so (so it seems--dont know this for sure---things only get worse if you assume that "they" know about schmitt and have embraced his legal philosophy consciously.)
at the same time, the writer of the article sees in the exposing of such violations of law the "real problem"--and so you get a argument for de facto censorship---reporting on certain types of violations of law carried out by an admnistration can itself invovle violation of the law--the writer appears to think that unless the press is silenced, any prosecution of the administration for its actions is hypocritical. this is absurd.
what the article presents is an argument for authoritarian government.
such case for the bushpeople's violations of law as it presents are a subset of this larger argument.