Guy Caballero meets Jack Abramoff.

Speaking of peeling back the secrecy, a question to the lawyers here:

Does President Obama have the legal power to make public the Executive Orders issued by Bush, even those that Bush classified? Or is it the case that other presidents have issued classified EOs (I realize the technical name for them is something else), and that there is not a tradition of transparency on that matter?

This was brought to mind by WO’s point about the evidence that U.S. personnel tortured prisoners under the Bush administration before the OLC memos “covered” them. I have assumed for a long time that one or more of the executive orders issued by Bush also “authorizes” torture, since there was one that plainly “authorized” assassination.

My position in life is a repeated question: What is outside this box and who made this box? This question apparently causes some people a lot of irritation, but that is not the purpose of the question. By repeating the question, I hope to find the outermost box (sometimes with the help of others) and thus the setting in which it and all other boxes exist.

One of the primary concerns (if not THE primary concern) of cynics is ethics. One way of looking at ethics is to see the subject as an investigation and description of human behavior that is as value free as possible. Cynics are looking for the ‘natural rules’ of human behavior. Just what natural rules are and how to define them is a separate but very interesting topic. Natural rules bring to mind law. But they are not the law created by men. Rather, they are the law(s) of nature and, whether we know it or not, natural rules/laws precede human laws. Human laws are good if they echo the natural rules (are ethical) and human laws are bad when they distort or encourage the distortion of those natural rules. A law against gravity will still fall to the ground at 32 feet per second squared.

Social scientists and physicists, among others, agree that it is impossible to evaluate a system from inside the system. People, or instruments of observation that are embedded in the system, distort the system even as they try to observe and analyze it. This fact is independent of the motives of the observer. That’s why it is compulsory for any dedicated investigator who wants to ‘get to the bottom of things’ to step outside the system.

You have raised some interesting questions. Is what I am saying obvious, or is it an effort to find a window outside the box (in this case the legal box) from which to obtain an undistorted view back into the system. That is, don’t we first have to question why a thing is and if it is natural for it to be that way? And don’t we need to ask if there might be some forces, sometimes external forces, that are creating an illusion of a whole thing, seemingly natural in form, that is in fact a contrivance? If what I am saying is indeed obvious, perhaps you have made your way further down the path than I have. Or, maybe, just maybe, there is an ‘obvious’ interpretation of my remarks that obscures their real meaning.

Are we looking at different aspects of the same coin? If you are also considering the ‘monetary system’ when you look at a ‘coin’, then perhaps we are. But if you are looking at the ‘value’ of the ‘coin’ from within the system that mints them, perhaps what is obvious is also wrong. For example, to continue the money metaphor for a moment, fiat money has no intrinsic worth. Its value is whatever we say it is. There is no way to be sure the ‘coin’ created by fiat money will have any value at all tomorrow. Indeed, current economic events are about to make that painfully clear.

Likewise with the law, people can exist without man-made laws because the same set of natural rules exists within each person. The value of these rules is ‘built-in’ (think about inalienable rights before they are written down). Humans evolved to a point where we could contemplate human-made law, without benefit of that kind of law to keep us in order and not wipe out our species in a grand act of suicide. If people choose to ignore those rules, override them or are unaware of them within themselves, then perhaps we need man-made rules, written laws, to explain the current conventions for agreed behavior. But those laws are not the same as what is available to every person, even the illiterate. Man-made law only means what we agree it to mean, which certifies that it is an artificial contruct (doesn’t matter if it is a good one or not). And that is the basis of my statement that the law is not the law. We cannot give meaning to a bad law and we cannot enhance the rules of nature by writing a law about them.

Context is another word for the position outside a particular box that is being examined. Of course each subject must be delimited, or we would always only be trying to talk about ‘the universe and everything’, and all conversations would be the same. Delimiters are sort of like time, which is what keeps everything from happening at once. In order to understand the nature of the delimiters for a particular subject, we need to be able (at least for a moment) to step outside the subject and view the setting in which the particular delimiters are applied. This exercise often helps clarify misunderstandings and miscommunications that occur within the subject itself but cannot be resolved from within the subject. It also helps one to know if the delimiters are natural or artificially imposed. Without that contextual view, it is impossible to claim knowledge of the importance of a subject, or whether it is being pursued in a rational way.

Are we talking about the same thing? I suppose that is up to you.

I like detail, I am a fan of great analysis, but I LOVE context. For without it, nothing makes any sense (to me). That’s why I would like to see a mental step-back on each thread, that explores at least a little bit the context for the discussion, and whether the commenter has a different take on the context from what has been previously offered.

–TA (you tell me what the law is)

http://www.salon.com/opinion/g…..index.html

My intention in repeating the phrase has been to elicit awareness and discussion of the context in which law and public discourse of behavior take place. It is the job of lawyers to take the law as a largely given thing, subject to interpretation but seldom subject to challenge of its validity. It is this point that is most important: context (legal, social, ethical) determines the law, where law is an attempt to codify an ever changing set of social agreements. It is because of the constant but often unseen flux of these social agreements that we can only meaningfully discuss the law as an ongoing but always changing (even reversing course) effort by humans to discover what we all agree to, or not. Law is not fixed nor even mostly complete. It is this ongoing effort that, seen in a larger context, constitutes the blackboard on which we write the law. It is written in disappearing ink and requires regular review and renewal to remain current. It is the larger context which is the real law, not what is written on the blackboard.

Judging from the further posts on this subject, it seems that the discussion has now begun to include the context necessary to appreciate what the law is or is not. I would hope that all the threads (not just legal issues) on this, the most intelligent blog I have ever come across, would simultaneously include an overarching discussion of the context in which the material of whatever thread is being discussed.

I like detail, am greatly fond of analysis, but I love context. bmaz and ew do a great job of setting ‘em up, and I would enjoy this blog even more if the process included a larger contextual point of view, in which we all can knock ‘em down.

–TA (the law is NOT the law)

You cover the political options and nuances far better than I could. The point I would make about objectivity is that it is a disciplined public effort and I am sure Congress at this point is unwilling to pursue this. But at some point if the clear consensus is that the treaties relevant to the prescription of torture require domestic prosecution how can it be avoided without a great cost to posterity. And in the end, if it is presented clearly, common sense is difficult to overcome, just as that in spite of the flaws of the jury system and as both you and bmaz have suggested, the jury usually gets it right. I don’t mean to be convoluted here but this seems to be where we touch on the dimensions of mystery held in the attempts of holding factors relevant to the truth in a legitimate system of jurisprudence. And I am not without experience with this.

I suppose my advocacy is really directed at conscience and I have a difficult time understanding the static implied jurisprudence attributed to Lederman, the positional considerations raised notwithstanding. I ventured over to his blog from time to time and I suppose I am naturally oblivious to the inherently self-protective considerations of one who considers acting as a government lawyer. And this does not touch on the apparent demur with respect to the special ethics that apply to this calling. Lederman seemed to have some sense of the specious methods deployed in many of the controversial OLC opinions. And from the point of view of analysis where “cognitive illiberalism” is constructive in delineating a certain kind of jurisprudence with respect to facts there is an analogous illiberalism at play in Yoo’s treatment of the law. In reality its hard for me to characterize in any way other than as a “facetious illiberalism.” So for the sake of discussion, from a position of disinterested observer, of what the fuck the law is I would hope it is more than just vain retainers making shit up.

Other than that I think it is clear to me now how the fedora resonates. Its screams Abramoff, that I think for me ultimately was the tell, seeing how we are otherwise denied inquiry at this point. But it does not seem like this issue will die an easy death.

In the end I really can’t keep up with you, but I enjoy the effort.