Wednesday, September 1, 2010

OLC and WE The People - Why Ethics Matters (1.16.09)

If there is one person in the new administration that I would like to work with she is Dawn Johnsen.  She doesn't know me.  I don't know her.  But her job, as I see it, is Ethics.  And if there is one thing in life that matters to me a great deal, that thing is Ethics.   And boy do I envy, and feel compassion for, the job she has ahead of her.  She is our safeguard.  And perhaps, if presidents deserve and benefit from formal blessings upon them, as they embark upon the troubled waters of their job, we should pause and confer blessings upon Dawn Johnsen:
May she maintain vigilance and compassion in her task for us and for Obama.  May she remain strong and yet vulnerable, with the deepest care and concern and inner integrity she can muster.   May she work on behalf of all humanity, not just our country, as she advises our new President.
Please, dear Dawn, do not let us down!

According to Dawn Johnsen, the job of the Office of Legal Counsel is "to say no to the president."  To determine, on the basis of law, and some kind of reasoning (which I would term ethical), what is right and proper and "ok" or not for the president to do or not do.  Here is my image of her argument:
 Will the president seek "authority" by means of excuses and rationalizations which permit discarding laws in order to do things which s/he considers means (however despicable) to an end (however laudable)?  I will call this the "green light" method :
whereby the president seeks underlings who will grease the wheels of government and the signal systems so the president always has a "green light" to go wherever or however the president chooses/wants/needs. 
Or will the president be guided by wise counsel, based upon the legal texts and some other kind of reasoning, which considers "care" and "concern" for the welfare of human persons as part of the decision-making process?  I will call this the "red light" method:
 whereby the president chooses counselors who are on the lookout for "red flags" or danger zones or unintended consequences - moral hazards - which might do harm - to the law or to humanity or our nation or the world.
Dawn Johnsen subscribes to to the "red light" method - for the Office of Legal Counsel.  And after 8 years of the "green light" bush-can-do-anything as commander-in-chief method, boy do we need the "red light" of Dawn!

We already have seen the damage that can be done when a president chooses Legal Counsel for the purpose of subverting the law.  For the purpose of parsing words and utilizing slippery reasoning to give the president any powers he wants, with the excuse that he is "keeping us safe."   But Obama has chosen a woman who has spoken out against that "green light" method - against torture and tortured reasoning - and for what I view as "Ethics" and an effort to live by the Spirit of the Law, well within its bounds:
"OLC should provide an accurate and honest appraisal of applicable law, even if that advice will constrain the administration's pursuit of desired policies.  The advocacy model of lawyering, in which lawyers craft merely plausible legal arguments to support their clients' desired actions, inadequately promotes the President's constitutional obligation to ensure the legality of executive action."

In short, OLC must be prepared to say "no" to the President.  For OLC instead to distort its legal analysis to support preferred policy outcomes would undermine the rule of law and our democratic system of government.  The Constitution expressly requires the President to "take Care that the Laws be faithfully executed."
[my bold and italics]
To take care.  Faithful exection of what she terms "the President's 'Take Care' obligation."  That's what I call Ethics.

People who have studied moral reasoning have come up with two ways of looking how that develops.  One way is based on abstract principles, such as beneficence and justice.  Another way is called the "Ethics of Care" and that method is based more on relationships, care, concern, compassion.  The two are not mutally exclusive but based upon how people tend to lay out a moral argument when presented with moral dilemmas.  And not only have researchers studied the manner in which people describe their moral reasoning, but they have also studied "levels" of moral reasoning - from a childish view of things as black and white based upon fear to what has been termed "wisdom," whereby someone wrestles with the inner conflict of competing moral concerns, looking beyond the narrow needs of one person or situation to the broader general welfare in all its variety.
[Personally, I wish those who study moral reasoning would examine the Torture Memos in view of their level and type of moral reasoning - because I suspect it's an example of very stunted moral development.  So if you are a grad student reading this and looking for interesting dissertation material... hint, hint]  But I digress...
So I find it interesting that Dawn Johnsen describes the Ethics of the president's job as "the 'Take Care' obligation."  And we already know that both she and Eric Holder are on record for using the world "torture" and for "taking care" that all the laws are faithfully executed.  And you can see exactly where I'm going with this.

Dawn Johnsen was among a group of distinguished legal scholars who developed a set of principles to guide the Office of Legal Counsel.  You can go and read for them for yourself.  Indeed you should.  Because our new OLC is urging that these standards be codified into law.  She wants to see the Congress involved in that.  And she also strongly believes that WE The PEOPLE should be involved as well in the interest of transparency(Bless you, dear Dawn!)

Now, here's why I'm writing this blog:  As I read and reread Dawn Johnsen on the importance of the role of the Office of Legal Counsel, I came to one searing conclusion.  There is a potential huge hole in the Constitution.  And it comes down to character, to Ethics.   We saw evidence of exactly that under bush.  For the president's choice of Legal Counsel and how that office carries out the job (of saying no) may determine the Fate of the Nation.  It comes down to whether a president chooses someone to act as an enabler for whatever the president wants (as did bush).  Or, whether a president chooses a "gatekeepker" to act as an advocate for the President's over-riding Take Care Obligation - to uphold the Constitution, the Rule of Law in almost a spiritual sense.  Thus, the president's and his counselors' level of Ethical Character and moral reasoning - may determine the Fate of the Nation.  The fate of We the People.
It behooves us therefore to elect leaders of extremely high moral character (and moral reasoning!), and to monitor the kind of legal/ethical minds who lead the Department of Justice and especially the Office of Legal Counsel.  For another near-dictatorship is possible.  If we are not vigilant.  And vigilant we must be.

We the People are in charge of whether the hole in the dike of the Constitution is repaired and never allowed to open again.  Through our insistance on holding our leaders to high standards, to the Rule of Law, to carrying out the Oath of Office, to preserving, protecting, defending and enforcing the Constitution in its entirety - we carry out our soverign role as Citizens - whom the government serves.

Ethics Matters.  It matters so much.  I honestly never realized how much it mattered - until 8 devestating years of bush-bashing of the Constitution and the Rule of Law. 

A few months back I looked at Ethics in terms of boundaries.  And that still applies.  But today I have looked at Ethics in terms of how the fate of our nation and the fate of the Constitution hang on the character and the ethics of a few people - our president and those who counsel him - not only to stay within the law - but to live by its Spirit, to embody its Spirit.

Our Constitution is not a perfect document.  And in some ways it is a fragile document.  For its life depends on the men and women whom we elect to preserve, protect, defend and carry out the law (including to obey laws which demand investigation and prosection of crimes against our nation or against humanity).  And we have seen how easy it is for that to be subverted.  Subverted by an unruly executive.   Subverted by a supine Congress.  Subverted by counselors whose allegiance was to a dictatorial executive, rather than to the law they were sworn to uphold.

Dawn Johnsen knows this.  But she knows as well that to do her job, she needs us.  I'm not kidding you.  If you read her paper carefully, you will see that she calls upon citizens to study the role of the Office of Legal Counsel, to demand transparency, to demand leaders who view their role as acting to head off potentially illegal, unwarranted, or untoward consequences - by living up to the highest standards of the Law and of Ethics. Listen to her words, urging an informed citizenry, and the importance of the Oversight Role that inheres in We the People:
Perhaps most essential to avoiding a culture in which OLC becomes merely an advocate of the Administration's policy preferences is transparency in the specific legal advice that informs executive action, as well as in the general governing processes and standards. The Guidelines state that "OLC should publicly disclose its written legal opinions in a timely manner, absent strong reasons for delay or nondisclosure."  The Guidelines describe several values served by a presumption of public disclosure, beyond the general public accountability that accompanies openness in government.  The likelihood of public disclosure will encourage both the reality and the appearance of governmental adherence to the rule of law by deterring "excessive claims of executive authority" and promoting public confidence that executive branch action actually is taken with regard to legal constraints.  The Guidelines note as well that public discourse and "the development of constitutional meaning" may benefit from the executive's important voice, valuable perspective and expertise.

[my bold, italics, and links]
If you ask me, this president deserves this very Legal Counsel (Dawn Johnsen).  And this OLC deserves this very president - a man likely to educate the nation on contitutional meaning, based on his "valuable perspective and expertise" - as she puts it, but based, even more, on Ethical Standards, as I put it here:
In my view people who can draw boundaries have one of the single most important qualities of a good leader or good supervisor, no matter where they might work. These are people who grade fairly and treat students or employees or children equally. Who can place professional responsibilities above personal needs. Who recognize that authority is not a power to wield but a responsibility one discharges. That the one with greater power always has greater responsibility to draw boundaries and exercise special care for those they serve or who serve under them.

Persons with certain character disorders, especially narcissistic individuals, who lack empathy for others (e.g. cannot put themselves in the shoes of others), seem particularly prone to problems with ethics and boundaries. To begin with these individuals tend to overvalue themselves and believe what they are doing is right and proper. They may refrain from second-guessing themselves or seeking advice as to the appropriateness of their behavior. This puts them at a disadvantage when making decisions. If they happen to be a politician, it then puts the voters, We The People, at a decided disadvantage. When a politician, or indeed any professional, puts his or her own personal needs above professional duties, the fiduciary responsibility of the person in power is sacrificed on the altar of selfishness. The politician has failed society and indeed his or her oath of office.

To my mind, when it comes to the presidency, the Oath of Office is the single most important duty. That oath is to The Constitution. Once again, since few politicians get any training in political ethics, we are left with the person's own ethical understanding, which is exactly why character and temperament are vitally important in picking leaders.
We have a president who has a history of seeking advice - not a history of demanding fealty.  He has demonstrated an ability to learn and grow, to look at and scrutinize himself, to put himself in the shoes of others, to wrestle with contradictions.  He has often surrounded himself with strong, independent-minded women.  I view his selection of Dawn Johnsen as emblematic of his character.  And based on her writing, she appears to be a woman of high character herself.  Character and Temperament -  and careful attention to an Ethics of Care - we can ask nothing less of our leaders.  But they are not perfect.  And they depend upon us and our vigilance:
Citizen Oversight.
   We can ask nothing less of ourselves!
[Hat tip to bslev who drew my attention to this article by Dawn Johnsen - the basis for this blog - in recognition of his efforts to live by high ethical standards in his life and in his work.]



Since we know we disagree on the broader issue, Thera (respectfully, of course), I thought I'd just limit my comment to the role of the Office of Legal Counsel, or OLC.
The OLC is the Justice Department's lawyers. They provide legal advice to the Justice Department (and possibly its masters at the White House). This means that when they are given a "Can we do this?" question they have two tasks.
1. Find out of it is possible (read: legal). OLC doesn't care if it -should- be done. OLC isn't an elected official. OLC doesn't represent what the people think. If OLC thinks an action qualifies as Big E Evil, but nonetheless is legal, it's their job to say so.
2. Tell the party requesting advice the result, and provide advice on how, when, or how risky teh action would be.
I think, based on the memos that have (God knows how or why, they ought to be privileged) leaked, that OLC probably did its job. They provided a legal rationale for the courses of action the administration wanted, because upon reflection and research, they found one.
We may disagree with their conclusions! I do.
But that doesn't mean they did anything wrong, it just means we (sitting in judgment, as it were) don't find their arguments convincing. It doesn't mean they should not have presented that possibility to the Executive.
You better read Dawn Johnsen. Though the Office of Legal Counsel indeed resides within DoJ, her task is not the same as DoJ's task. And she has her own, separate stable of lawyers, whose job is quite different than investigating and prosecuting, which is the job of DoJ.
Read the links.
Yes, we certainly disagree. But we needn't be disagreeable. And I'm glad we're disagreeing in a civil way. Thank you for that. :)
I think, based on the memos that have (God knows how or why, they ought to be privileged) leaked, that OLC probably did its job. They provided a legal rationale for the courses of action the administration wanted, because upon reflection and research, they found one.
Here's where I think you go off the rails. The argument DJ and TheraP are making is that it's _not_ the OLC's responsibility to simply find rationalizations and justifications legal or otherwise to bolster the administration's course of action.
I think the argument being made here is that the OLC has the moral responsibility to council against an unwise or un-Constitutional course of action even if it's legally justifiable.
You put it better than I! Kudos!
Was that d%^#n cat in here sitting on the keyboard again? Whatever he said, I'm sure he didn't mean it ;-)
Let's hear more from that cat! ;)
[quote]I think the argument being made here is that the OLC has the moral responsibility to council against an unwise or un-Constitutional course of action even if it's legally justifiable.[/quote]
I was just pointing out that OLC isn't a guardian of morality or of the public; morality is a difficult thing to pin down, and the way we do it here is popular elections.
OLC are attorneys - they tell you if it's legally justifiable, not if it's right or wrong.
Popularly elected officials are supposed to decide what's "right", and our remedy against their mistakes is a popular election.
And, after a year of Abu Ghraib pictures, we threw the bums back in.
I'm as appalled by what our country did as much as the next guy, but we chose in the Presidential primaries this cycle two candidates who (both!) are very strong against torture and the like. We fixed it.
OLC is not supposed to solve this problem. We are. And we have.
[And, as I've mentioned before, that ought to be the end of it.]
I want to disagree with you, but as I consider the issue more fully, I think I agree (at least abstractly) on one point.
Riddle me this: is it any more or less democratic (little d) for the OLC to provide slippery legal rationalizations the sole purpose of which is to support the president's agenda or (for example) to refuse to provide legal advise (say on abortion rights)? I think the case can be made that in either example, the office is not providing a service to the People. In the first example, the Office is not being diligent or objective: it's blindly supporting the President regardless of objective legal standards. In the second example, it's clearly abdicating it's responsibility to provide legal advice to the Office of the President.
Somewhere between these extremes is the path the OLC should try to walk. Being the Moral Police and Gatekeeper(tm) for the Office of the President is _way_ overstepping it's authority (see example #2 above) but stuffing it's collective nose up past the President's prostate (see example #1 above) is equally useless to the People.
Finding someone with the moral standing to walk that line and the ethical awareness to understand the responsibility is a big ask. Dawn Johnsen fits the bill.
That is classic, El Presidente! Ignore what is wrong or unethical because one is an attorney. No wonder we have so many jokes about legal counselors, if their sole purpose is to respond to the question, "Can I get away with this?" The question literally reveals that there is reason to consider a different action. BTW, attorneys spend a lot of class time studying ethics.
When people suggest we have lost our rudder, this is where the rudder goes, ethics. While we may not have courts to try people for their shortcomings in this regard, we the people can hold them with contempt. They may not go to prison, but we the people can sentence them to our disdain. We have that right. We have that obligation to our own self-respect. I would even suggest, in certain instances, we should throw shoes in their general direction, although it is not suggested we actually strike them with the shoes.
Hear! Hear! That should be shouted from the roof tops!
Ethics is one thing. But an attorney's duty is to represent their client. OLC can tell the President, behind closed doors, that they think what he's doing is wrong. They can tell him that the legality is questionable, that there are risks. Maybe (MAYBE), OLC didn't go far enough in doing so. We'll never know and WE SHOULD NEVER KNOW.
That's between OLC and the President.
Once the decision is made, OLC's job, if there is an arguable basis for the action, is to argue and explain that basis, and that is what OLC did.
Legal ethics is not general ethics. They're not supposed to decide for their client what is "right". It would be a -massive- ethics violation to, for instance, let someone other than the client know that you thought they were doing something illegal.
Lawyers can be many things, but they cannot and must not be whistleblowers.
Dawn Johnsen wrote a 17 page paper on the Office of Legal Counsel, relating it to the agreed upon principles of many other scholars, all of whom have worked at OLC and were concerned by the abuses of the bus administration, which you seem at pains to justify.
It would appear that you have not read her paper. Why not put up your own blog laying out in great detail, as she has, why you believe the OLC should act as an enabler of the president, rather than a guardian for the Rule of Law and ethical decision-making?
I await your detailed analysis in a blog or published paper.
the OLC should act as an enabler of the president, rather than a guardian for the Rule of Law and ethical decision-making
That looks like a false dichotomy to me. Shouldn't those be one and the same? The OLC should not give bad legal advice just to please its client. It's possible that Bush&Co got this sometimes. "But my lawyers said it was okay" should never be taken as anything but a sign of guilt.
Yes. We should know. I would suggest that the attorney is NOT the lackey of the President, however, but the voice of the people. We the people pay the salary of the OLC, so they ought to be answerable to We the people. We should know right now.
We want oversight. She wants us to do oversight. But el Pissante just wants to step on the Constitution.
Sorry, I missspelled it: el Pisante.
It has taken me until just this minute to understand where my grandpa got the term he always used in describing the rather flamboyant Town Chair he disliked intensely: "pissant"
That's the French term, which is slightly different from the Spanish term - but in the same ballpark - and I bet with a similar etymology.
Yeah, well this is the same guy who probably saw the Place de Pigalle referenced somewhere. From that time forward, the narrow one block street in town where his French friends lived was to be called "Pig Alley."
Tres bien! :)
A call to vigilance I can believe in! :-)
What jumped into my (admittedly tiny and pointy) head was this:
Your treatise exposes the true insidious nature of things like the Protect America Act and the warrentless wiretapping stuff the FISA appeals court just championed. It is in their so secretive nature that these ideas can move from being simply bad policy to being tools with which a totalitarian wannabe can subvert our Constitution. Without the abused even allowed to know they've been wronged, individual recourse let alone citizen oversight is not possible. Without the threat of public shame and accountability, the purveyors of said abuse can stride on, trampling the Constitution at will.
Short version: If we can't see it, how can we stop it?
Without an OLC that looks out for moral hazards, we are left with crimes for which, as you say, there may be no "evidence" and indeed no standing to prosecute.
The OLC has been called the 10th Justice. Someone whose job it is to oversee the president and keep him honest.
Glad you're on the case!
How does a sense of ethics develop in a life where ones' mistakes were covered up, or 'fixed' by a powerful father/grandfather? Living such a life teaches one only how to 'game' the system and engenders a contempt for 'fairness'. How do you counter someone who has lived life without regard for ethics? The circumvention and subversion of the constitution was the logical outcome of putting a man who had no moral or ethical compass in the White House. Without written laws designed to limit the opacity of the OLCs legal opinions the electorate has no recourse in countering poor decisions being made by our chief executive. Thanks for posting Thera.
So well said, miguelito! So well said. Yes, the man was "taught" to game the system. I can imagine his mom and dad smiling with glee as he outwitted yet another authority and escaped from yet another responsibility.
Give me a person with a conscience and an ability to wrestle within that conscience ANY DAY over someone so shallow, so cruel in his smirking way, so cocky and in need of adulation, so invasive of the space of others, so... well ... why waste more ink here?
Vigilance! Give me vigilance.
And save us from the likes of bush and his ilk.
Four. More. Days!
Under 100 hours, even!
Now those are zeros I can believe in!
I usually have to take notes when I read you TheraP.
Just like Sleepin' and now, a couple others.
I am so elated that our new President hired an expert in the matters concerning the OLC and ethics that I can hardly contain myself. A real attorney who has actually done extensive research in this area. I really am dumb struck.
Abstract principles as well as the Ethics of Care.
Let us have a few drinks and talk about how we should conduct ourselves vs. what are the actual consequences upon real people with regard to this action or that action. And I should not include vs. It is not like the two perspectives are mutually exclusive.
"How the fate of our nation and the fate of the Constitution hang on the character and the ethics of a few people." There are consequences to how our leaders act and we have had a leader who knew nothing about consequences his entire life.
"She calls upon citizens to study the role of the OLC to demand transparency....and living up to the highest standards of the Law and of Ethics."
If w had just put someone in OLC in charge of hiring only those who have studied these issues.
From my reading, there is not going to be anyone working in that office who has not studied the role of an attorney in that office and who does not promise to live up to the highest standards.
What a difference.
And guidelines. There have been no guidelines in eight years. I just read the quote again, I think at TPM of Leahy cross examining the bible toting attorney from OLC. She said she had taken an oath to the President of the United States and Leahy stopped her and told her that she had indeed not taken such an oath. But rather her oath had been to uphold the Constitution of the United States of America.
And, yes, the OLC has a duty of deterring excessive claims of executive authority.
I noted somewhere else that your essay on Dawn Johnsen was superb. And that I knew this because I had read several articles later discussing the same points you had discussed.
But this post becomes a writing that can be used a year from now to see how the promises of a new Administration are being fulfilled.
Very enlightening, TheraP.
The enlightenment comes from Dawn's own words. I just took them to their logical conclusion in terms of We the People.
As I see it, and I may need to lay that out more carefully in another blog, we need to bombard OLC and DoJ and the Congress with calls for transparency and for investigations and prosecutions.
But yes, I think you're right. This blog - and likely others - can serve as a measuring stick for the future. (I was very happy to see Krugman's column this morning for that same reason.)
I too am dumbstruck at the possibilities here. And may they prosper and blossom. There is so much that can be done without spending money. Ethics is one of them!
Maybe we shoudl ask how the university where she received her degree teaches ethics and what curriculum they use to teach those ethics? Maybe there is a credentialing issue to explore. It sounds like they justify their actions because of how they interpret the Bible rather then the actual documents on which this country was founded.
She went to a Pat Robertson or Bobby Jones university and it had established its own law school. and w just started hiring people from that establishment.
The Christian Right has been angry at the legal system for over 60 years. So it has begun to simply create its own law schools so that eventually it will have more power in the legal community.
This is conspiratorial and it is bad. It is like a biology course in an institution that eschews Darwin. A waste of time and effort.
Or a geology course where the students are told that the earth is only 8,000 years old.
This is becoming an epidemic.
Several years ago I read about one of the mega-church colleges and how they were grooming debate students for higher training as lawyers for the express purpose of well, for lack of a better term, infiltrating at the federal government level in an effort to more or less force their viewpoint on everyone else. The article gave the impression they were bragging about their goal.
Yes, I ran around with my hair on fire about that for a few days. But, everyone I spoke to about it since assured me I was full of shite. I guess I wasn't so full of it after all.
This is the problem Flower. You are in your constitution law class. Now Yale and Harvard and the University of Minnesota will use the same texts.
In many of my classes, one of the writers of the basic texts would be the guy leading your class.
Now in a holy roller constitutional class, you can imagine weeks of wasted lectures demonstrating that the ten commandments (there are at least three different versions in the OT, pick one) form the basis of our legal system.
Or that Christianity was the established religion in America, and this is why.
Or the Commerce Clause should be narrowly construed. You simply cite cases from the nineteenth century.
The propaganda could be interspersed with enough to get you through the local bar exam and vuella
(sp) you have a holy roller attorney. Now you get a free ride into the executive branch as a payoff for religious contributions which, in turn, becomes a free ride into the judiciary.
Twenty years later you have a 19th century judiciary.
This is a scary thought. I might do a blog on this sometime.
DD - I gave you a line drawing and you put excellent colors on the canvas. Thank you!
You brought it up and I did not even catch what throw the bible at them even meant. You made your own good blog on this.
I read that too and I ran in circles screaming for a few days. But now I laugh at myself. Look what has happened to the Republican party. That was thier plan when the Rovian concept of Forever Republican Rule was the prime belief system. Will they rise up from the ashes to rule again. Someday, but not soon. And just think about what the economic disaster created by the Rovians is doing to these quasi colleges and the bots they are turning out. I laugh again!
Don't be too confident. In eight years, plenty of attorneys are in place; many "imbedded" positions were filled. Remember that the DOJ's questions were about abortion and strict adherence to ideology rather than law. Eight years. A lot of damage can be done. Look at the Supreme Court. At least we dodged the McCain bullet on THAT one! Leaving out the Electoral College, did you see how close this was in popular vote? Even with a complete nitwit as VP candidate and an old war-mongerer for President! That still scares me!
I can just see the neo-cons lining up at DOJ now, ready to scream bloody murder if they aren't hired under the Obama administration. The damage continues, believe me.
You are so right, CVille Dem! I like your thinking more and more! Yes, there is potential danger. We must, I repeat MUST, be vigilant. These folks have "burrowed in" as they call it. They are like moles in the system. Ready to tunnel and work against our ideals, all the while believing they are doing the lord's work.
Glad you're on the case! And you teach, if I'm not mistaken. Good that. :)
You raise some interesting issues, Gregor Zap. In fact I'm mulling over another post related to how "interpreting" the Bible - and how if one interprets it ideologically - that can lead to torture and other moral harm. Think of the Spanish Inquisition - which used the power of the church and of the church's power to interpret scripture - to torture individuals suspected of holding erroneous theological views. Even the holding of "erroneous political views" - since in some countries the church and the state were "one." Spain was like that, having thrown out the Jews and Muslims.
In an article I'm considering referencing, it turns out that Spinoza turned to a careful study of how scripture might be interpreted, as a means of attacking the arguments of the Inquisition. And it is just such a study that may be needed again, in our time, to attack the views of fundamentalists, which would support war and torture as a kind of moral crusade. (Or could some people be justifying the war in Gaza by such means?)
I may or may get to this - but it fascinates me.
"may or may not"
But I think you could guess that's what I meant. ;)
TheraP- Yesterday I put up a post about this issue as well, if you have the time to read it. I have to confess compared to your well researched posts, it needs work, but it says pretty much the same thing. I welcome you comments.
I completely agree with your idea of meeting them on their own turf. Excellent blog! What I propose, however, is to discuss how someone can be "faithful" to the spirit of scripture - while nevertheless avoiding the literal interpretations so many fundies make use of. Your method is to use that literal "word" against them. And bravo! That's a good method. Because the fundies will never agree with my method - which comes from a prominent philosophical school of believing academics seeking to use the tools of modern scholarship but for purposes of using how the Bible interprets itself in order to learn how to interpret the bible.
I was actually wondering if that method would work for the Constitution. Which is another reason I was thinking of posting on that topic.
I think I'll just copy this comment to your blog. (which unfortunately got lost in the shuffle yesterday due to dd's similar but shorter and more humorous blog as I recall)
Long blogs are not usually wise. This one here is likely way too long - but I couldn't really shorten it. So be it.
It is a challenge to read long blogs, but knowing the author, even as little as I do, I knew it would be worth it.
I am honored by that comment.
Any time we have a president who is short on ethics we will have this situation. What we had during the Bush years will occur again. This is particularly true in the DOJ where the president staffs by way of appointments persons who will support his or her viewpoint. We have a structural problem whereby how this all works is inherently flawed and which has the potential to produce both good and bad outcomes. It is inevitable we will have both. We know the DOJ was highly politicized under Bush and there is nothing to prevent a reocurrence of the last eight years. The only way to avoid this is for voters to be far smarter than what they've been of late. What this really translates to is it places the ethical burden squarely on the electorate. That is properly where it belongs, with the only remaining thing being what we do with it. Its more than a bit worriesome that Obama was elected more because of Obama than because of voters having learned much over the last eight years. I know many people, as I'm sure we all do, who voted for McCain and I can't figure out for the life of me why? Forget for a moment that he's a republican and just consider the train wreck of a campaign he ran. Yet he got just shy of 60 million people to vote for him and Obama got about 69.5 million. No matter how you slice it that means there are about 60 million people walking around who fail to see the connection between the mess we have and the people who have been running things. What the hell are they thinking?
The only way to avoid this is for voters to be far smarter than what they've been of late. What this really translates to is it places the ethical burden squarely on the electorate.
How right you are, thepeoplechoose.
And how right is your name!
And that, truly, is the point of the blog. It scare the sh*t out of me - to think that we citizens are in the hands of the like of Sarah Palin and her groupies.
Dear god in heaven... I have 40+ more years to go round the sun with the humans you've put here with me! Am I their keeper? Supposed to wake them up? Or is it my karma? Or what?
I don't envy you or anyone else your age. I'm on the wrong side of sixty and in spite of what has gone down in my lifetime I see the stage being set for an even worse time ahead. The general trend of things isn't moving in a direction that is advantageous to the larger population and that trend has been on the rise for quite some time. Most things that I happen to think are important are running in reverse. As a late forties boomer comparing what I once knew vs what we have now I question whether it's possible to turn things around. Our government has changed in very fundamental ways that aren't likley to be put back in order. Governments just don't give back power - ever. Bush has put in place mechanisms that could well pit our military against the populace and nobody blinked. Never before in our history has our military played such a significant role in domestic intelligence. In every way our domestic landscape has been altered in very alarming ways. Working class persons, who are far and away the majority, simply aren't represented in congress any more. And you don't have to take my word for that. Just look at the outcomes produced by legislation of the last twenty years. I know this all really sucks but I'm a Vietnam vet and 55,000 Amercians died in that mess and this is not what we fought for. I hope you can figure out a way to get the assholes at the top to do differently. I've emailed and sent letters to my congressman and senator to no avail. Not many people do though and thats a problem. Most places you can pick up the phone and call the office of your representative and senator any time. I have and I do and more people should. If they did it might actually make a difference. Or I'd like to think so.
I think you describe the situation well. I'm going to be 64 soon. And I agree that very dark times are on the horizon, certainly economically. On the other hand I remain hopeful - simply because we've elected Obama and if things can turn around (big if, because I agree that we're poised on a knife-blade and could easily go either way as a nation), then I think this is our one chance.
Carpe diem.
And a lot of prayer.
Thank you for all your citizen advocacy!
TheraP, as a non-believer I just have to point out that if praying accomplished anything John McCain would likely be set to take over on Tuesday!
I'm not saying that all Democrats aren't religious, but those Mega-Churches worked overtime with their prayer vigils. Now they are being told (as they always are when prayers aren't answered): " God never gives you more than you can handle." I haven't heard their stock answer about people who kill themselves, but I am digressing.
CVille, I spent 2 years among the ultra conservative, orthodox christians - studying theology - on purpose, after the 2004 election - in order to "take back" christianity from folks whose focus is so narrow, so exclusionary, so self-righteous and critical and non-caring.... it served me well... but I tell you it tore me up inside and made me feel "split" just to have this dual life. I'm not saying they don't "mean well" but their views and their logic are so twisted as to be frightening. And they have wedded themselves to the republican right wing. Scary combination.
As I say below, it is not necessary to be a believer to have a conscience and do good. But the combination of belief and power is very, very scary. I will likely do another post on that, but need to do more thinking.
Ideology is a scary, scary thing when fused with power. We've had religious wars and torturers and so on. Religion, in some ways, has done more harm than almost anything. Even though it's also done good. I've known people in my work literally tortured as children in the name of religion.
Thanks for your words and your presence here. :)
Methinks you assume too much, tpc. The 60 million do not think. They react emotionally with all the left over fear Dubya drummed up after 9/11. They thought McCain woud take the fight to the "enemy". They thought Sarah Palin reminded them of their peers. In the end, however, they thought not at all but sought the "comfort" of having a military fighting non-stop to keep them safe. It did not matter that the military is stretched tighter then a piano wire and treated like dirt while the privateers/pirates steal the cash from the US Treasury.
I don't think they should be "moral police" - that is a very scary role. However, they should certainly not exist to find loopholes and rationalizations. They should opine on whether or not something is legal - hopefully in the SPIRIT of the law, not through some convoluted thinking.
If you read Dawn Johnsen you will see that great care goes into the role. Or read just the 10 standards the group of legal scholars / former OLC lawyers signed onto. I don't think it's a morality witch hunt going on by any means. But "moral reasoning" is what the psychologists studied. I think of it as Ethics.
Thanks so much for visiting and commenting.
Peace be with you.
Thera P:
I just had the time to read this post and what a fabulous piece of work it is. Thank you for the hat tip, but candidly the article I gave you was circulated in the office by one of my partners so I can't say I found it independently. In any event, you've studied it well and have taught and reminded us all that it is fundamentally critical to "take care".
Finally, thank you for your kind words. I only hope I can truly live up to the standards you subscribe to me.
Have a blessed Sabbath, my friend. I think you will live up to your blessings.
Thank you again for passing along the link. You inspire me in many ways.
Migwetch for this, TheraP. Good reading with good links. My fingers are crossed for Ms. Johnsen that she will stay strong in her convictions. I am going to believe that she will.
You are most welcome, dear flowerchild. I knew you'd love all the Ethics stuff!
Not only does she sound like a woman with strong convictions, but she's written them down. Once your write something or tell something out loud, it makes even more likely you will follow your intentions. She's shared these thoughts with colleagues. She's shared with them with the public. And I truly believe she wants to help turn things around. That's why I thought a blessing was in order. I'm gonna keep an eye on her.
Thanks for your comment and for your careful reading. :)
Thera, I don't have the time right now to digest this post, but I wanted to make a quick comment. Once upon a time, being a Christian meant that you were supposed to behave as if God himself was sitting on your shoulder watching you, and if you did bad things, He'd get you. That was the kind of people our form of government was designed to govern...a God fearing people. If I remember correctly, there is a line from Thomas Jefferson on the inside of his memorial to that effect.
Even we Christians (or at least some of us) don't fear God anymore, let alone those who don't believe. You can't completely legislate morality (read ethics)because no one can be watched 24/7. You either do the right thing when no one is watching, or you don't. Too many people these days only do the right thing when people are watching. It's the "if I don't get caught, it didn't happen" mentality.
It's a very dense, long post. It literally took me over a week of thinking before I felt ready to write. I knew I had to digest it too. In some ways the post was too long - but I couldn't do the subject justice any other way. (I actually cut out another two ideas I might have pursued... so I did the best I could to shorten it.)
Regarding your thoughts about how a person follows their conscience (or not), it's a very interesting subject. Maybe would make an interesting discussion in another post.
I think the key with regard to conscience, and believe me I have thought much about this, is empathy - the ability to put yourself in the shoes of another. The wider our empathy, the wider our conscience, I'd say. So a concern for your fellow person, your fellow being. Every religion teaches that, of course. But it needn't be via religion that people acquire a conscience. Some of the most caring people I have ever known practiced no religion and sometimes had no religious training. So it's possible to acquire that all-important capacity for empathy without being indoctrinated by religion.
Nevertheless, your point is correct. Many people start out with a "fear" of getting caught. And sadly, many people never grow out of that. Their only thought is to fool others and to use their intelligence to do so. Sociopaths, who lack a conscience are sometimes criminals and sometimes what we call "successful sociopaths" - they rise to power or influence via their lack of conscience and their social skills. We have evidence of that in bush, though we would not deem him a "success."
In my work I've honestly come to trust conscience or a person's concern to not cause harm, to try and avert it, above everything else. None of us is perfect. But our concern about the fate of others, our ability to foresee how our behavior might place others in harms way, our efforts to consider things carefully and try to act selflessly when we bear responsibility for others - those qualities are what I look for when I evaluate someone. I think some strict religious people miss the boat. Why should someone's love life be open to public scrutiny as long as two adults are involved and no one is being coerced? But big things like war and so on... why are they not concerned about that? Or spying on our fellow citizens? How does that promote community?
I think we need a national conversation about Ethics. Not in terms of "forcing morality" in the small sense. But in terms of trying to get people to serve in public office who have an inner compass and seek advice and counsel to help them maintain that inner compass.
Forgive the long comment. But this is just so important. I truly bless and wish well our dear Dawn Johnsen and our new president - and all he those (ourselves included!) whom has called to serve on our behalf.
With respect to your post, the OLC, and the question of peronal ethics...
The ideal function of the OLC regarding ehtical conduct within the Executive Branch is to resolve any questions that come up. Quite often it is unclear to a given individual just exactly what the proper way is to handle a particular question. There are many, many gray areas in the law and many different ways to handle them.
In the outgoing criminal enterprise known as the Bush administration this function, like all others, was used as a tool to accomplish whatever ends the crooks at the top sought by providing legal "cover" regardless of how absurd and lacking in credibility it might be. Because they were in power and there was no effective opposition they could get away with this while in office. This is often the case in politics, but the extent to which this completely cynical approach was used and the level at which is was used at the Federal level since 2000 was unprecedented. It reflected the complete lack of ethics of the tyrant who set the tone and standards for his henchmen. As I'm sure we all agree, to say that Bush and his administration were unethical is to understate the case in extremis.
Getting back to the original point, however, the OLC is a function similar to that seen in many major law firms where the concern and the priority is to get things right and to strictly follow the rules so that the legitimacy of any action taken is beyond question. It is not, as was the case these past 8 years, to bend and/or twist the interpretation of the rules to suit the goals of those in power. In such an atmosphere, the only real law is "who is in power?" and we have reverted to a government ruled by the whim of tyrants. The effectiveness of the office is completely subject to whether or not the administration respects the law (the rules) and abides by it at all times.
Thus, the function is primarily professional, but it is intertwined in the personal ethics of each actor in the Executive branch and their motives. An administration that pays lip service only to upholding and abiding by the law as this one has invites unethical behavior and has no qualms about it.
In an administration that respects the law, as we trust the new one will, the OLC will serve as an important beacon in assuring to the extent possible that ethics and morality are observed because it will be used as a resource assuring ethical standards are met and all conduct is legal as opposed to providing the sort of sham legal rationale and protections that Stalin relied on as he ran roughshod over his own people in a binge of lawless tyranny during his reign as Dictator of Russia.
When an individual has a situation where it is unclear what constitutes ethical conduct or the most ethical path to take, an office such as OLC will be an indispensable resource.
I guess my point was that while "We the People", or at least "We" the people, that is those in this blog comment section, may prefer what Dawn Johnsen calls the "Red Light" method, there shouldn't be much question that BOTH the "Red Light" and "Green Light" methods are permissible and legal methods of running OLC.
These are really questions about deference to the client which have tormented legal ethics students for generations.
"Yes. We should know. I would suggest that the attorney is NOT the lackey of the President, however, but the voice of the people. We the people pay the salary of the OLC, so they ought to be answerable to We the people. We should know right now." -GregorZap
The problem with GregorZap's line of reasoning is that OLC isn't our representative in the Administration. We don't choose them, and they aren't answerable directly to the "People". We choose the President! HE is the one who is answerable to us, and represents our views. And we get to recall him after four years if we don't like what he's doing.
The bureaucracy is not among the "checks and balances" envisioned by the founders (the founders would have been horrified that there IS one). Career civil servants may have different conceptions of their jobs FOR the Administration, but they shouldn't be seen as a restriction ON the Administration.
This is a democracy, not a government by career bureaucrats.
Dear God, we aren't Britain.

I'm so glad that I saw where Obey just now recommended this. I thought it was just now written! A testament to Thera's exceeding excellence.
I look forward to reading through the links.
In relation to moral reasoning and torture: Kohlberg's stages of moral development are the frame I find most useful. The first level--the pre-conventional--in the first stage: Obedience and punishment orientation. I wonder if there is a pre-pre-conventional level of moral reasoning?
I mean, I know that Kohlberg hinted towards stages that went higher than the 6 he wrote about. I wonder if there are any lower than the 6 he wrote about. Torture would definitely make the case for stage 0.
Posted by MBH
May 3, 2009 10:54 AM | Reply | Permalink

No comments: