#PutiPoodle | #WhatTheyVotedFor
This is an interesting starting point:
If the Justice Department and the FBI knowingly used an unreliably biased witness to win a FISA warrant against Carter Page, violating his civil liberties in the process, you would therefore expect that there are some judges on the FISC who are concerned. They, after all, are the ones who were misled. They are the ones who signed warrants and renewals based on shoddy information. Conversely, if the judges on the FISC are not hopping mad, you might take that as evidence that they don’t, in fact, feel misled and that the Justice Department and FBI conduct was, after all, reasonably within the obligations of lawyers and investigators before the court.
(Wittes)
One particularly difficult aspect of the #TrumpRussia scandal is the manner in which the context of dispute overshadows history itself. It is telling, in comparison, that Democrats have come to defend and advocate the individual mandate, but also that Republicans and conservatives turned on their own idea; at some point, we ought to take the note about insincerity. It has, for years, also been true that a liberal political relationship to law enforcement is fraught, to say the least; but it is also true that conservatives have simultaneously drummed up tough law-and-order talk while relying more and more on conspiracy theories denigrating and defaming law enforcement institutions. Naturally, the allegedly liberal party finds itself defending the law enforcement agency and agent that, to the one, undertook irregular actions wrecking the Democratic presidential candidate, and that alone ought to be boggling. To the other, if we set aside Donald Trump for a moment, the FBI is also the agency that reviews its own duty-related killings, and has found itself to be perfect, something like a hundred fifty out of a hundred fifty. Given a day in court to indict all the sleazy tactics of a powerfully effective eugenic “drug war” any liberal would find the FBI in line to defend the necessity of allowing law enforcement to behave that way. Yet the spectacle continues apace, with Republicans hollering until they wheeze and Democrats breathlessly defending one of the most controversial law enforcement agencies on the planet. Without this extraordinary, self-inflicted presidential scandal requiring our priority, what is up with the Federal Bureau of Investigation, anyway? Federal law enforcement is still law enforcement.
Just as Democrats finding themselves rallying to defend the individual mandate ought to be significant of something about how we reached this point, or Jade Helm leaving liberals to consider posturing an ostensible general defense of the American military; or, if we can remember back to 2009, the conservative roll from patriotism and the indignity of protesting against the president to the patriotic necessity of threatening the president with firearms; or, hey, we might consider decades of conservative conspiracism including the National Rifle Association, and then wonder whether it will be law enforcement or the military confiscating the guns; so, too, might we wonder at the trend of conservatives behaving so badly that others need to do their jobs for them.
All this feeds into old tropes insofar as it relies on them; that is, the pattern ought to be clear, and let us consider some degree of conservative caricaturization, because it makes the point that much more clearly:
• How did we get here? Part of how we get here is a constant need for equivocation. Some days it seems easy enough to speculate that the real magick about forty-seven percent is that it is approximately the upper bound of reflexive political dualism. And to a certain degree reflexive dualism feels safe, but it falls apart when we challenge normalcy. Starting with the proposition that one can build a survey to create a desired result as easily as indicting a ham sandwich, and observing that no specific conspiracy is necessary in order to attend market demand, it becomes easy enough to wonder about any number of middling survey results to the point that we might start expecting the minority of political surveys to range between forty and, oh, say, forty-seven percent. This is, of course, an inadequate description, because part of the effect is that it starts to seem as if a Republican can say any damn thing under the sun and expect around forty percent support.
As with so much of political convention, though, the Donald Trump presidency is an outlier. Even still, the result is striking, and seemingly affirmative of something about that ineffable suspicion that it really doesn’t matter what the conservative argument actually is, anymore, because the market response automatically seeks a sigfnificant market minority bloc striving for parity.
The liberal convention actually remains nearly static; people need to be able to trust law enforcement, and part of the anger police departments, for instance, have endured in recent years is the result of persistent perceptions that people cannot. In this time that finds Democrats lining up to unequivocally support the FBI and even James Comey, whose deviation of process helped elect Donald Trump and thus manufacture a nationally self-inflicted, intrabranch executive crisis, we might wish to remember that part of how we get here is yet another wave, to the one, of historical Republican abuses of federal law enforcement, and, to the other, a ferocious and unprecedented challenge to political norms.
At the end of the day it is easy enough to be wary of any court whose proceedings are reserved from public view barring extraordinary circumstances. To the other, making that point does not change Benamin Wittes’; even if we wish to presume the court inherently corrupt the way much revolutionary leftist rhetoric would, that only means what makes the judges hopping mad is being dragged out into the sunlight for purposes themselves prima facie corrupt. In other words, regardless of other political considerations … er … ah … except is that preface not part of, if not largely the point?
The right-wing cacophony assailing the FBI would undermine pretty much the entire history of federal law enforcement, which probably sounds just super in the context of smashing the state, but the institutional question comes down to whether or not we are calling the whole thing off.
And before we set about arguing the difference ‘twixt smashing the state in response to oppression, or because one wants to oppress, it would behoove us to check down and observe the circumstances by which the liberal and even leftist safe position is to defend the FBI because the opportunity to smash the state is blindly reckless and utterly dishonest.
Meanwhile, the underlying news out of the Lawfare Institute is that Benjamin Wittes and Protect Democracy advocate Susan Hennessey have filed an amicus brief to the Foreign Intelligence Surveillance Court:
This Court, like other Article III tribunals, has inherent authority to take action to protect the integrity of proceedings before it. Accordingly, in light of the claims levelled in the Nunes Memo, this Court may be engaged in some sort of proceeding to review whether the Justice Department committed misconduct in this matter by withholding pertinent information from the Court. Amici respectfully ask the Court to make public the disposition of any such proceeding. If the Court concludes that the Justice Department acted with political bias or violated rules of professional responsibility in this matter, the Court should inform the public of that and of any appropriate remedial action. Of equal importance, if the Court does not believe it was misled, then the Court should inform the public of that to correct the appearance of impropriety. Just as the public has a right to know whether the Justice Department has abused the FISA process, it has an equally compelling right to know whether the intelligence oversight process has potentially been abused by the people’s representatives in Congress and by the President. And finally, to the extent that no proceeding exists to review the Department of Justice’s conduct in this matter, Amici ask the Court to publicly clarify that point as well.
Every once in a while it seems worth asking how we arrived wherever we find ourselves.
Asymmetric polarization, certainly, but still, in the history of American bodies politic, all the reasons some people weren’t supposed to make so much noise are now the reasons the scolds who would have them quiet decided to make noise with; the difference is a matter of function. As long as the rest of society is busy trying to preserve what is already wrong with its institutions against a right-wing siege of previously unthinkable indecency, at the very least conservatives have someone to prop up those societal problems for them.
This is #WhatTheyVotedFor. In American history it is axiomatic that the Constitution is not a suicide pact; the political struggle at hand seeks to defy what has come before. If every political struggle is a class struggle, what is the suicide pact itself?
The Wittes-Hennessey brief is centrist to moderately conservative in its outlook on secrecy and the public trust, but look at what it marks under what circumstances. The present situation, with the FBI and now the Foreign Intelligence Surveillance Court, caught between coinciding Republican partisan interests in Congress, and dangerous individual vested interest in the White House, with the Attorney General of the United States poodling to a President of the United States who would defame the Department of Justice in a poorly-executed scheme to protect the executive from criminal exposure, is untenable, and that is part of the point. The people who complained, for years, that government does not work have set about not even sabotage, but, rather, whatever we call statecraft iterations of open vandalism, hooliganism, and outright thuggery.
The sacking of an empire is a curious tale to witness. Pretenses of democracy might suffer inherent self-centered flaws insofar as empowerment majorities only play along while they still feel empowered as a majority. Americans pretend we are stronger than much of what the world can bring, but if the moment feels far less certain, it is because empowerment majorities are not accustomed to countenancing themselves as the problem. A question remains how far we, as a society, will allow this suicide pact to progress before shaking off the fog. More than left and right, or liberal and conservative, we presently struggle with questions of society and antisocial empowerment.
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Image note: Contemplation of Justice (Credit: Unknown)
Florence, Justin and Benjamin Berwick. “Motion of Benjamin Wittes and Susan Hennessey for Leave to file Brief of Amici Curiae Asking the Court to Make Public the Disposition of Any Procedings Concerning the Justice Department’s Conduct Before This Court”. Foreign Intelligence Surveillance Court. 7 February 2018.
Wittes, Benjamin. “Friends of the Court: A Suggestion for the FISA Court on the Nunes Memo”. Lawfare Blog. 7 February 2018.
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