Author Archive for david-gray
A TRC for the Bush Years?
posted by David Gray
Senator Patrick Leahy proposed yesterday in a speech at Georgetown that we open a truth and reconcilliation committee to bring to light our engagement in acts of torture under the Bush administration. While the impulse to revelation is laudible, I am not persuaded that this is a case for a TRC.
Foremost, the conceit of a TRC is that those who participate are granted amnesty. That grant of amnesty may be an accommodation to reality. Frequently in cases where TRC’s are used it is practically impossible to prosecute and punish everyone responsible for acts of atrocity; and in light of this justice gap, there is a political decision to forego punishment both because any prosecutions would be selective and because a TRC can achieve a more expansive account of the past than would be provided by a smattering of individual criminal trials. Amnesty may also have a more normative bent, recognizing that many of those who participated in past abuses did so out of a justifiable sense that what they were doing was right, or at least not illegal.
It’s hard to see the first justification for a TRC in the case of torture and other human rights violations perpetrated under the Bush administration. As a matter of fact, the numbers of those closely engaged as primaries or accessories in acts of torture are unlikely to be so large that it is impossible to investigate thoroughly and, if appropriate, prosecute all cases. Similarly, when viewed in light of the pervasive cultures of abuse addressed by the TRC in South Africa, say, it is hard to make the case that acts of torture committed by or with the support and assistance of government agents were, in all respects, “legal” from the point of view of the perpetrators. Agents of Bush policies might claim that they got legal advice to the effect that what they were doing was legal, but bad legal advice is seldom an excuse in the criminal law and, without more, it is not clear to me that the fact that the attorneys in question worked for the President makes a material difference. Suggestions that the President himself may have endorsed acts of torture does little to clarify matters unless one accepts Nixon’s view that what the President does is legal simply because he does it. I do not.
During last night’s press conference, President Obama fielded a question about Leahy’s proposal from Sam Stein of the Huffington Post about Leahy’s proposal. His sensibe answer, consistent with representations he made during the campaign, was that “My view is also that nobody is above the law, and if there are clear instances of wrongdoing, that people should be prosecuted just like any ordinary citizen.” Bravo; which makes all the more unhappy the fact that Obama’s Department of Justice has taken the baton from the Bush Administration in obstructing efforts by torture victims to seek justice.
February 10, 2009 at 4:35 pm
Posted in: Uncategorized
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McCain–Sage of Stability
posted by David Gray
During the ending days of the Presidential campaign it seemed to those on both sides of the Red-Blue divide that we might be facing the end of days; some because a man of African heritage with documented exposure to Muslims might be elected, and others because he might not be elected because he is a man of African heritage with documented exposure to Muslims.
John McCain took an uncomfortably agnostic position in this battle of the social apocalypses. He suggested in the offing that Barack Obama was a man of mystery who had known associations with terrorists that had yet to be fully explained. Yet, Senator McCain was always cautious to stop short of overtly plucking the strings of lingering racism and well-nurtured xenophobia. His running mate was famously, and perhaps shamelessly, much more reckless, as were a substantial portion of his official and unofficial champions. His supporters in the electorate quickly connected the dots marked by the candidates, their deputies, and members of the media who regard the seeding of dark and seething suspicion as simply part of “showbiz,” to conclude that then-candidate Obama was, himself, a terrorist, a “sleeper cell,” a “racist . . . loon” and, quite famously, an “Arab,” and therefore unworthy of trust.
Senator McCain’s response to the “Arab” allegation was not to overtly deny the claim. Rather, he emphasized that Obama is “a decent family man, citizen, [with whom] I just happen to have disagreements . . . .” Senator McCain was criticized for that reaction by some who thought he should have more firmly denied the claim itself, or corrected the underlying assumption of the speaker that Arabs are not to be trusted, but I think McCain’s instincts were right, revealing a pretty sophisticated political theory of social stability with which I agree. More on why after the jump.
January 31, 2009 at 6:55 pm
Posted in: Philosophy of Social Science
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Is Accountability Part of the Change Agenda
posted by David Gray
As early as April last year, candidate Obama stated his commitment to investigate and, if the facts support it, prosecute those who perpetrated acts of torture during the Bush Administration. In August, the commitment to prosecute if appropriate appeared to remain intact, but days after the election had already fallen from favor, though a commitment to truth appeared to persist.
As the burdens of pragmatism, or perhaps appeasement, have mounted, President-Elect Barack Obama (“PEBO”) appears all but to have abandoned even the possibility of an investigation.
More thoughts after the jump.
January 18, 2009 at 5:04 pm
Posted in: Uncategorized
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The Best Wines Under $15.00
posted by David Gray
What did I do for New Year’s? Glad you asked.
January 17, 2009 at 7:43 pm
Posted in: Culture
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Reid, Not Just a Tin Ear
posted by David Gray
For the last few days as the Blagojevich crisis has moved to the District, I have been nurturing a sense that Reid et al. have handled the situation just about as badly as they could while demonstrating that old tin ear so fundamental to democratic politics and governance. As is his wont, Erwin Chemerinsky offers a clear-headed legal analysis in yesterday’s LA Times. He cites Powell v. McCormack for the proposition that the Senate cannot deny a seat to a duly elected or appointed congressperson except on grounds of constitutional ineligibility. While I am not an expert, it seems to me that the Senate has some standing to refuse a seat if state law governing the election or appointment of a candidate has not been satisfied–which appears to be Reid’s current position. Regardless, the point of tone and precedent that animates Chemerinsky’s analysis is dead on. The threat not to seat any Blagojevich appointee was without legal authority, and destined to be called as a bluff, thereby giving Blagojevich a credibility opportunity while painting Reid and the leadership as a bunch of overreaching bullies. The whole game of deferring a constructive meeting until today so as to set up the crisis at the Senate Chamber door also seems to me the worst sort of posturing, and a distraction that serves nobody’s true interests–least of all the agenda of change. If today’s compromise was the obvious and right result, they should have met over the weekend so as to have it in place for yesterday. Most concerning, however, is the demonstrated regard for the use of power Chemerinsky identifies. Is this the new politics? Seems awfully familiar to me.
A shout out to my colleague Bob Condlin for drawing my attention to Erwin’s editorial.
January 7, 2009 at 1:35 pm
Posted in: Politics
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It Wasn’t Me
posted by David Gray
Thanks so much to Dan, Danielle, and the Concurring Opinions crew for this invitation. This is all pretty new to me, but I am looking forward to a fun and interesting month.
In describing the job of law professor, Stuart Benjamin (http://www.law.duke.edu/fac/benjamin/) once told me that “We teach for free and grade for money.” I’m sure it is not his originally, but it’s particularly fitting for this time of year as we face exam and paper piles of various heights and teeters begging our attention. As someone who spent a few years in a PhD program, this feels to me a bit like being a pledge for life—to borrow a phrase from fraternity culture. I spent all those years grading blue books for others’ classes with the promise that some bright-eyed hopeful would someday clean up my messes only to enter law teaching, where we carry our own water. Hard to sigh too hard, of course, but the fact remains that few of us love grading.
It was while putting off grading that I read this interesting and timely article by Paul Bloom in The Atlantic Monthly, cum “The Atlantic,” on models of the self. Anyone with even a moderately complicated internal life is familiar with the subjective phenomenon of wars in our heads between competing goals and desires. Be it a battle between Dionysus and Apollo or André Soltner and Jenny Craig, we all experience the competing pulls of devils and angels, and so it is with grading. I should really grade ten more exams, but I want to see Virginia in the . . . no wait, Virginia wasn’t even Bowl eligible . . . but there are games on, and I’ll have plenty of time to grade once the dust settles from the holidays.
January 5, 2009 at 9:20 pm
Posted in: Law and Psychology
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