One moment they're playing down reports of Iraqi violence, arguing that the Iraqis are better off because they're free and -- in case you hadn't noticed -- their corpses have purple fingers.
"Freedom's untidy, and free people are free to make mistakes and commit crimes and do bad things ... Stuff happens." -- Defense Secretary Donald RumsfeldThe next moment, they're explaining why Americans must accept being less free because
"... all the people who are worried about civil liberties, you don't have any when you're dead." -- Sen. Pat Roberts (KS)One moment they tell us they want government out of people's lives. The next, they hold a special session of congress to inject the federal government into a family dispute over whether to remove life support from a brain-dead woman.
One moment they argue that government must come down hard on immigrants who come here illegally hoping to feed their families, and not reward illegal behavior through any kind of amnesty. See, criminals must face consequences.
The next moment they're brushing off the president's possible violations of the 4th Amendment and international law because he does it for "the right reasons."
Today it was more of the same. The Supreme Court heard Court heard arguments in a case challenging whether the president's executive authority allows him to conduct special military tribunals outside the United States for suspected foreign terrorists.
Justices Souter and Kennedy questioned Solicitor General Paul Clement, finding the administration -- you guessed it -- trying to have it both ways and contradicting itself.
"You say the president is operating under the rules of war recognized by Congress," said Souter, "but for purposes of claim to status and hence the procedural rights that go with that status, you're saying the laws of war don't apply. And I don't see how you can have it both ways."That's because Souter doesn't get it. He doesn't understand "right-think."
UPDATE (Wed. 5:35 AM):
In Slate this morning, Dahlia Lithwick provides more detail:
One of the most dramatic moments in today's oral argument in Hamdan v. Rumsfeld comes when an uncharacteristically agitated Justice David Souter presses Solicitor General Paul Clement about whether Congress last December effectively stripped the Supreme Court of the right to hear habeas corpus claims from any of the hundreds of detainees being held at Guantanamo Bay. Clement says it's not necessary for Congress to have "consciously thought it was suspending the Writ." Perhaps the lawmakers just "stumbled on the suspension of the Writ," which would also be fine, Clement suggests.I could argue a better argument before the Supreme Court.
Souter stops him, amazed. "The suspension of the Writ," the justice sputters, is the most "stupendously significant act" Congress can undertake. "Are you really saying Congress may validly suspend it inadvertently?" he asks. It's the morning's best example of the degree to which, for Souter as well as for Justice Stephen Breyer, today's argument is an agonizing exercise in Bush administration doublespeak. Clement's arguments are frequently drawn from the well of "because the president says so," or "because the president is the president," or "because it's wartime." They start to sound like Alberto Gonzales' testimony before Congress or the president's signing statements: legal analysis by assertion and justification by double standard. This war is like every other war except to the extent that it differs from those other wars. We follow the laws of war except to the extent that they do not apply to us. These prisoners have all the rights to which they are entitled by law, except to the extent that we have changed the law to limit their rights.
In other words, there is almost no question for which the government cannot find a circular answer.
Later Breyer will add: "You want to say that these are war crimes. But this is not a war. These are not war crimes. And this is not a war crimes tribunal. If the president can do this, he can set up a commission and go to Toledo and arrest an immigrant and try him." To which Clement's answer is the fail-safe: "This is a war."
At some point, it must begin to insult the collective intelligence of the court, these tautological arguments that end where they begin: The existing laws do not apply because this is a different kind of war. It's a different kind of war because the president says so. The president gets to say so because he is president.