Topic: For policy wonks...
Defining Terms: He Who Defines the Terms Controls the Argument
Of course, if you want to win an argument, you know your winning it depends on both sides agreeing on just what you're arguing about, and on your controlling just what that is - the terms of the argument. Your opponent says there's a problem with X and points out there is only one really effective answer to that problem, at it's his answer. You reply, graciously, that may be so, but really, if you look at this X thing, well, that's not really the problem - X is only a symptom of a the real problem, which is Y, and the only really effective answer to the Y problem is your answer. Defining the terms of the argument actually is the argument, or often is.
Concerning the ongoing national discussion, or argument, or quarrel - or whatever it is - regarding the News York Times revealing the president had instructed the National Security Agency to disregard the law and listen in on, or at least track the contents of, millions of phone calls each day, and scan millions of emails, to see what's up, we have the same problem in defining terms.
The 1978 FISA law is clear, and so is the is Fourth Amendment. Citizens, given that part of the constitution, have the right to a sort of privacy - the government cannot "search" to find out things about them without probable cause and a warrant issued by a judge who decides there is, actually, probable cause, as a crime may have been committed, or one is being committed, or one is being planned. The FISA law just fills in the details for circumstances involving "foreign intelligence" involving American citizens - it lays out procedures and rules.
The president told NSA to disregard those procedures and rules, and implicitly to disregard that Fourth Amendment detail of the constitution. More than a dozen of the NSA folks leaked this to the Times, and the Times, after sitting on the story for a year, reported it. The president asked them, a few weeks before they did, not to run the story. They did anyway, but left out technical details they were told would aid "the enemy." The president then explained, publicly, that yes, he had ordered this effort, outside the law, and there should be an investigation - those who leaked the information should be exposed and prosecuted. And he intended to continue this effort - letting the Attorney General and others explain that any president, as commander-in-chief when the country is at war, has the authority to do this sort of thing when any particular law conflicts with his constitutional responsibility to direct the war, and secondly, this president had specific authority to do so because the congress authorized him to "do what's necessary" to go after terrorists and those nations who support them. So there!
What followed was a disagreement on what this is about. The more hysterical of the civil libertarians did the expected - "Oh my God, this president is spying on all American citizens - it's a 1984 Big Brother move and we now live in a Stalinist America with our own KGB keeping files on anyone who disagrees with the leader!"
The less hysterical of these folks note the government does have a right to "spy" on its citizens, and always has had that right - that's just part of law enforcement - but the right to do this stuff is based on showing a judge you have some probable cause and getting a warrant, and bypassing that is a bit disturbing. Some wonder if, without "judicial oversight," such a program might be used to create an enemies list of the Nixon sort, to "get" those who make trouble for the administration by disagreeing too loudly and too embarrassingly - and maybe this is just too tempting for any administration to resist.
Then there's the-world-has-changed group saying this is really about how, since September 11, 2001, we really do have to toss out old ways of thinking - we don't have the luxury to worry about privacy rights these days.
Closely related to that is the "things are different in wartime" crowd. But are we at war? The Korean and Vietnam Wars were called that popularly, but the first was officially our participating in a UN police action. We were, on the record, just supporting the UN there. It was not a war - not at all. It was our supporting a UN action. It just looked like a war. Regarding Vietnam, what the Gulf of Tonkin Resolution was is still a matter for some debate. The least inaccurate way to explain what it was would be to say it was a resolution ceding the authority to wage war to the executive branch, as the legislative branch didn't want to decide or declare anything - in short, it was tossing the constitutional authority and prerogative to declare and wage war down the street to the White House. "Yeah, it's our job, but you decide." All "war powers resolutions" since are an admission that the constitution doesn't work in the modern world - one man in the White House should decide these things. It's quicker, more efficient, and, if you're in congress, you don't catch crap when things go badly. Anyway, you're not given all the information, or you're lied to, so just how can you decide? Let the executive do what it will. What's the point in pressing the issue? The last official declaration of war was with WWII, after Pearl Harbor. There has been, since then, no official war anywhere in which we have participated. None at all. But we toss the word around - the War on Drugs, the War on Poverty, the War on Christmas. The word "war" doesn't mean anything very specific now - it is now purely metaphor. Is it any wonder this is confusing? The congress is useless. This president says we're at war. Not quite so - but so. Close enough for government work. But are things different even when at war? Can a president when at war ignore pesky laws? Truman tried to nationalize the steel industry and thus end a strike threat when we were "at war" in Korea, and the Supreme Court slapped him down.
What can a president do and not do? Jean Schmidt, the newly elected congresswoman from Ohio - the one who called a fellow house member and decorated ex-Marine a coward on the house floor - says we're at war and when you're at war you just have to suspend the constitution. We've never officially done that, but maybe she's onto something.
Other takes on this include going after the Times for treason (see this) - the Times was aiding and abetting the enemy by revealing that we were tracking their calls and emails. The bad guys didn't know? By revealing there was this NSA, and there was this FISA law? They didn't know? They didn't think there'd be warrants? Are they cunning, clever, evil monsters, or are they bumbling idiots ("Don't worry, Ahmed, I've read the American newspapers and no one is listing in on us.") - which is it? It's hard to see what aid the Times provided the bad guys. This seems to be about following our own internal rules.
Is this about the rules? If it is true that the corporate owners of the phone, wireless and web hubs have given the government access to all the data flow to look for patterns and key words, is this about what sort of law we should have to assure monitoring isn't abused for political or even financial advantage? Is this about how antiquated the FISA law is now? But this attorney general said the administration did not try to change the law they decided not to go to congress when told they'd not get changes, and because, too, they'd have to reveal too much about the technology. This is interesting. What law should we have with all the new data mining technology available these days? Should it be used, and if so, under what rules?
Finally, there are two more ways to define this argument. For the Cult of Bush there's the "you have to trust the Man." He says it's necessary, so it is. He says he'd never abuse the power he assumed, so he wouldn't. And from the "whatever" crowd there's the argument this doesn't matter - if you have nothing to hide there's no problem.
Of course there are subsets to all of these positions, and there is the superset - this is about a small group of people with a pliant figurehead taking over the country, or it isn't.
We'll see who gets to define the terms here. And that is not yet clear.
But this is not the only example of such maneuvering, as we see in this regarding that fellow congressman Jean Schmidt called a coward -
As Oliver Willis explains what happened there - "Reject the premise of the attack, repeat with your original point. Bang. Murthanized."
The hearings on whether Judge Alito should become a member of the Supreme Court are underway. Is that really all about God? The Wall Street Journal notes this - three Christian ministers claim to have snuck into a Senate hearing room in order to anoint the chairs that will be used for Alito's confirmation hearing. They used oil. Doesn't that stain?
Is public health really about morality and evangelical Christian values? That depends on who frames the argument. See this -
Let's see - "theoretically completely effective" but of "zero value" and "ethically problematic." Gee, that's kind of like the whole effort in Iraq, with bad science thrown in as a bonus.
And then there is that war. There is this argument about winning it here, but don't click on the link. It's complicated, dense, and confusing. Duncan Black straightens it out here -
Yep, defining terms matters, and who gets to define the terms matters too.
Black also links to Zbigniew Brzezinski in the Washington Post with this -
But Cheney just said it was simple. Victory or defeat.
People are, however, asking him (and the administration) to define the terms. What do the terms mean? Everyone knows? No, they don't.
We'll define them for you? Folks are understandably wary.
What's going on?
As Yul Brenner, in the role of the King of Siam in The King and I, was wont to say - "Is a puzzlement."
And how will this be spun, with carefully defined terms? From the Los Angeles Times, another scandal -
There's a bit of discussion here, but how will you spin this? What happened may have cost taxpayers more than a billion dollars, but what about loyalty to your friend and contributor? You block the investigation. People understand friendship and loyalty do really matter. That may not fly.
Ah, sometimes you just explain the rules don't apply to you, as in this from Ron Hutcheson and James Kuhnhenn of Knight-Ridder -
Ha, ha! It all depends on how you look at it.