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Monday, December 12, 2016

Defining terms and talkng past one another

A great frustration in the conversation (especially in the press) over torture during the George W. Bush years was the failure to agree on terms or to discuss the disagreement over terms. Bush declared that the United States does not torture and was telling the truth--the U.S. did not torture, as he defined torture. But what no one mentioned was that Bush defined torture to not include, for example, waterboarding. So the conversation never advanced.

It appears we are about to repeat the pattern in the Trump years. Various Republicans (Mitch McConnell, John Bolton, the like # 2 at State, and even Trump himself) present the reasonable (and necessary) position that Russian interference with the election will not be tolerated and will be dealt with swiftly and harshly. Great. Except no Republican--certainly not Trump--is ever going to be convinced there is sufficient evidence that the Russians interfere, always insisting that we just don't know (they seem more likely to insist it was the Obama administration). And so the conversation, and any investigation, will never advance.

Posted by Howard Wasserman on December 12, 2016 at 10:30 AM in Howard Wasserman, Law and Politics | Permalink


"But what no one mentioned was that Bush defined torture to not include, for example, waterboarding. So the conversation never advanced."

Well, depends on the context. I recall quite a few people noting his waterboarding classification, some quite upset at it. It was a significant concern during the confirmation of a leading member of his administration at one point. And, we did discuss the terms. The conversation was not easy, let us say, including from personal experience talking about it online.

Posted by: Joe | Dec 12, 2016 10:37:20 AM

I suppose it's possible, but then again we could ask the negative question about Democrats, right? I mean, up until a few days ago, the White House was convinced that hacking would not and did not impact the election. Now, the President is calling for a full review of the evidence. I am fine with that, but will there ever be a point at which Democrats will be convinced that Russia was not trying to help Trump?

All of the CIA report and NYT articles seem to point to the fact that embarrassing emails were only leaked from the DNC. There seems to be an assumption that the RNC was also hacked, despite the lack of any evidence of this and the RNC's denial (both before and after the election) that it was hacked. Furthermore, it is entirely possible that even if the RNC was hacked, nothing truly embarrassing was uncovered (I don't know, maybe the RNC has different email retention rules, or is not stupid enough to write down their embarrassing thoughts/comments).

Also, this is more of a side note, but the speculation is entirely one-sided in assuming that Russia's motive was clearly aimed at helping Trump. But if we assume that Russia believed (like everyone else did) that Clinton would win, it seems more reasonable to believe that the intent was to undermine Clinton's presidency. While it still would have worked in Trump's favor and would need to be punished, but it is a plausible alternative that no one seems to be considering.

And another side note: I am concerned about the hacking of the DNC and its implications. However, the court of public opinion does not have an exclusionary rule - while voters disapprove of the hacking, it doesn't change the damning statements that were leaked. It is unrealistic to ask voters to unsee what they see in deciding how to vote. Since my early days in a law firm, it has been impressed upon me that a person should draft every email as if it will be brought up in a deposition someday. I think that is a lesson that everyone would do well to observe.

Posted by: TJM | Dec 12, 2016 12:15:11 PM

"But what no one mentioned was that Bush defined torture to not include, for example, waterboarding. So the conversation never advanced."

Were you living in an alternate universe in those years? This was a huge and controversial subject. Here's one of many articles on it from the NY Times http://www.nytimes.com/2008/02/17/us/politics/17torture.html

You may be confusing the error regarding no one mentioning it, with the failure of the issue to be resolved to your satisfaction.

Posted by: MS61 | Dec 12, 2016 4:02:19 PM

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