From: Bathus
To: David Frum
Sent: Monday, June 27, 2005 12:54 AM
Subject: formal legal code governing anti-terror operations

Dear Mr. Frum,

In your NRO Diary, you argue that "the administration should work with Congress to write a formal legal code governing its anti-terror operations" so as "to deprive liberals of any excuse" for acting like Dick Durbin.

I don't think that's such a good idea:

The very first executive power the Constitution grants to the president is that of commander-in-chief, an authority the boundaries of which are, for the most part, not otherwise explicitly delineated. Thus, the Constitution already assigns to the president whatever powers can constitutionally accrue to a commander-in-chief. In other words, with only a few explicit exceptions (e.g., the power to declare war reserved to Congress; the prohibition of quartering of soldiers except in time of war and as prescribed by law), every conceivable war-making power that is constitutional is already within the president's power. On the other hand, the Congress obviously cannot legislatively grant to the president any unconstitutional war-making power.

Therefore, since the president already possesses (almost) every possible constitutional war-making power, and since the Congress does not have the power to expand a president's war-making power beyond what is constitutional, any legislation that delineates some aspect of a president's war-making powers can in its effect only be either a limitation of those powers or a nullity.

The president needs flexibility in his exercise of the powers of commander-in-chief to deal with the unpredictable exigencies of war. As you say, "success in this war will require the United States government to take actions that it has never taken before," and it is impossible now to know exactly what those actions might be. For that very reason the courts have historically interpreted the president's war-making powers quite broadly to meet the exigencies of the moment. Such flexibility is especially necessary to prevent and to defeat asymmetrical attacks waged by terrorists. Any law delineating the president's war-making power would threaten that flexibility.

In light of the above, it would be rash legislatively to delineate (i.e., effectively to limit) the president's war-making power. Indeed, our enemies (who have no difficulty finding clever lawyers) could use your law "governing . . . anti-terror operations" as a blueprint to organize their own operations and methods so as to exploit areas in which the president's war-making power has been effectively circumscribed. In war, it's unwise to explain to the enemy every limit of one's powers and every circumstance in which one might or might not employ them. Yes, the long drawn out ad hoc litigations to resolve the scope of presidential war-making authority (accompanied by grandstand posturing by the president's political opponents) seem endlessly frustrating. But keep in mind that these lawsuits entail post hoc determinations, which means that in a crisis the president remains free to do what he thinks needs to be done right then, based on his best judgment of the boundaries of his constitutional authority, and he can let all the lawyers fret over sorting out the murky legal theories later. Your "formal legal code governing . . . anti-terror operations," even if its committees of drafters do not intend unreasonably to restrain him, might tie the president's hands in advance in unexpected ways so that he would lack the power needed to confront an unpredictable emergency.

With regard to your desire "to deprive liberals of any excuse" for acting like Dick Durbin, a new law "governing . . . anti-terror operations" would not deprive them of an excuse because they already have no excuse.

Many liberals do not require an "excuse."

They require only an "occasion."

Thus, as we have seen with the Patriot Act, the attempt to pass a law "governing . . . anti-terror operations," and--in the event of its passage--every attempt to employ that law in the exercise of a war-making power, would not mute the liberal cacophony or help this country to "hold together its war-fighting coalition," but would merely provide infinitely more numerous "occasions" for certain liberals to do the usual sort of things for which the lack of an excuse has heretofore been no restraint.

The very best thing this president could do to diminish uncertainty about the scope of his war-making authority is not to hamper himself and his successors with another War Powers Act that will be dangerously obsolete before the last bound copy rolls off the presses at the Congressional Printing Office, but to request from Congress a formal Declaration of War.

I admire your writing and remain . . .

Your loyal advocate,
Bathus at Adeimantus Blog

Conservatives saw the savagery of 9/11 in the attacks and prepared for war; liberals saw the savagery of the 9/11 attacks and wanted to prepare indictments and offer therapy and understanding for our attackers.

White House Advisor Karl Rove

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I would hope Mr. Secretary that you and other members of the administration would immediately repudiate such an insulting comment from such a high ranking official [Karl Rove] in the President's inner circle.

Senator Hillary Rodham Clinton

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We’ve got to ask, why is this man [bin Laden] so popular around the world? Why are people so supportive of him in many countries that are riddled with poverty? He’s been out in these countries for decades, building schools, building roads, building infrastructure, building day-care facilities, building health-care facilities, and the people are extremely grateful. We haven’t done that. How would they look at us today if we had been there helping them with some of that rather than just being the people who are going to bomb in Iraq and go to Afghanistan?

Senator Patty Murray

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The war on terror . . . is occasionally military . . . . But it's primarily an intelligence and law enforcement operation that requires cooperation around the world -- the very thing this administration is worst at. And most importantly, the war on terror is also an engagement in the Middle East economically, socially, culturally, in a way that we haven't embraced, because otherwise we're inviting a clash of civilizations.

Senator John Kerry

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I've resisted pronouncing a sentence before guilt is found. I still have this old-fashioned notion that even with people like Osama, who is very likely to be found guilty, we should do our best not to, in positions of executive power, not to prejudge jury trials. . . . it's best to say that the full range of penalties should be available. But it's not so great to prejudge the judicial system.

Democrat Party Chairman Howard Dean

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I think Karl was very specific, very accurate, in who he was pointing out.

White House Communications Director Dan Bartlett

From: Bathus
To: Victor Davis Hanson
Sent: Wednesday, June 22, 2005 12:37 AM
Subject: A Force of Nature: Illiberal Aspects of Illegal Immigration

Dear Mr. Hanson,

You are right that there is much that is illiberal about the way we manage, or fail to manage, illegal immigration from Mexico.

However, I am convinced that the human waves arriving from that country are impelled and attracted by economic, cultural, and political conditions that make that migration akin to a force of nature. Those economic, cultural, and political conditions will not change soon, and until they do, neither demagogic laws nor more rigorous enforcement to prevent those human movements will do much good--and might do much harm.

We might as well pass laws to prevent birds from flying south in the winter.

We might as well make it illegal for hurricanes to enter the Gulf of Mexico.

Yes, we and Mexico should set to work on the underlying causes, but in the meantime and so long as those underlying causes exist, a more rational approach would attempt to divert those human waves into manageable channels, increasing by several multiples the number of Mexicans legally allowed to enter this country, so that: (1) the immigrants who come here will both receive the benefits and bear the burdens of our laws and our culture (i.e., get them legal, get them into the mainstream, get them moving up the ladder of success, and then tax the hell out of them like everyone else!); and (2) we can then focus our attention more narrowly on the serious national security risk presented by the remaining few who would attempt to enter the country illegally. As to the latter point, the way things are now, terrorists and drug smugglers can easily hide themselves in the massive waves that cross our borders every day and night. By diverting the vast majority of illegals into a legal process, we would at least have an opportunity to scrutinize them as they come in the front door, and we could then assume that those who do not take a legal route are coming here to do harm.

I confess I am a great admirer of the work ethic and family ethic that one sees in the overwhelming majority of Mexican immigrants, whether legal or illegal, and I agree that the treatment illegal immigrants get under our present system is embarrassingly illiberal. Our illiberality is especially embarrassing inasmuch as these are people who raise and serve much of our food and many of our children, put roofs on our houses, pave our streets, clean the toilets in our homes and offices, and empty our aging parents' bedpans, all done with smiles on their faces, goodwill in their hearts, and for wages at which most any American would turn up his nose. We are truly blessed to have such humble and hardworking people among us.

With very few exceptions, the ones who decide to stay here will turn out to be very fine citizens if we give them half a chance. And unless we suddenly become willing to do a lot more of the "dirty work" for ourselves (and also willing to pay a lot more for the houses they'll no longer be building for us, the crops they'll no longer be picking for us, and the care they'll no longer be providing to our children and our old folks), there's no getting around the fact that we need them desperately.

Perhaps this is a sad commentary on the soft state of our own society: From my personal experience of having lived and worked on the Texas Gulf Coast for twenty-five years, if I had to choose--out of fifty "natives" and fifty illegals selected at random--ten people who would work hard and stick with it in a pinch, I'd probably take seven Mexicans and three US citizens. (At least one of the Anglos would have to speak Spanish, because my own Spanish still ain't so hot. I'm working on it.)

I read and very much admire all your writing, and I remain . . . .

Your loyal advocate,

Bathus at Adeimantus Blog

The moment a people acquires a certain awareness of an activity as being part of its "culture," at that moment the activity begins to cease being a part of that people’s living culture, and begins to be transformed into something else, something that might be art, or politics, or civil religion, but no longer exists as culture. At a certain moment of self-consciousness, culture ceases to exist because culture, in the truest sense, consists of activities that are carried on for the most part unselfconsciously in the everyday course of the life of a people. According to this formulation "culture" is mostly, if not always, unselfconscious. "Non-culture," for lack of better word, is artificial and self-conscious.

One can hardly speak of one’s own "cultural activities." To speak of them as such is to begin to destroy their character as cultural activities. Similarly, one absolutely cannot--not purposefully--preserve one’s own culture because a purposeful act of "cultural preservation" requires a degree of self-consciousness corrosive to genuine living culture.

Culture is never preserved. Culture is lived. And living (in case you hadn't noticed) is a mostly unselfconscious activity. What we call "cultural preservation" is actually a formalized entombment of never-living, dead, or dying cultures.

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The most conspicuous example today of "non-culture" presented as "culture" is Kwanza. Culture might well involve celebration, but culture itself can never be the thing celebrated. Genuine culture cannot exist as a celebration of itself. When a people purports to celebrate its culture, the very activity in which that people consciously engages, ostensibly in celebration of its culture, is no longer truly part of that people’s culture (if it ever were), and the culture purportedly being celebrated has become moribund (if it ever were alive). Such a celebration is, at best, some sort of staged re-enactment, not so different from a re-enactment of a Civil War battle. The staged affair might well be art or drama or political theater; it might even be historically accurate, but it is not culture. It is not the artificiality or the historical inaccuracy of Kwanza that distinguishes it as non-culture. It is the self-consciousness of the endeavor that renders it inauthentic non-culture.

A people’s genuine culture, like an individual person’s breathing, is carried on normally and naturally without thinking, the difference being that when a person reflects upon his act of breathing he can still breathe. His natural rhythm of breathing, burdened by thought, will become artificial and labored, yet he does not stop breathing and expire. But when a people begins to reflect upon its culture as culture, the aspect of culture upon which that people reflects ceases to exist as culture for that people.

Unlike a person who thinks about breathing, yet still breathes, if a people thinks too much about its culture, that people might cease to exist as a people. A culture cannot exist among a people with a refined consciousness of its culture as "culture." Yet a people cannot exist as a people unless its members share a culture.

This formulation of "culture" excludes not only Kwanza and Native American Pow Wow dances, but also all of what we think of as "high-culture," the latter for the very reason that production or participation in high-culture requires self-examination antithetical to unselfconscious action. High-culture is trans-cultural, and therefore not culture of the sort that is attached to or "belongs to" a people. On the other hand, the very word "culture" denotes a civilized refinement of natural growth--the difference between a thing growing wild and a thing that grows in a certain way because it has been attended to purposefully, if not obviously. So one can’t insist upon this formulation of culture as comprehensive. Yet this formulation is somehow fundamentally accurate and sheds some strong light on contemporary American culture.

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Yes, there is a genuine contemporary American culture.

Nowadays one could say that the archetypal American cultural activity is the activity of celebrating culture. In other words, our culture is to "celebrate culture." Our culture is to "preserve culture."

This is both strange and seemingly contradictory.

How strange it is that, with all our Greek Festivals, Italian Festivals, Asian Festivals, Korea Festivals, Polish Festivals, Kwanzas and Pow Wows (and one might even go so far as to include our religious celebrations as well), the foremost cultural activity of American life today is the entombment of non-living or dying cultures, an entombment we accomplish through the very act of "celebrating" these cultures.

How much stranger and seemingly contradictory it is that this hyper-romantic activity of entombing non-living and dying cultures, though excessively self-consciously concerned with the idea of culture, nonetheless begins to qualify as "culture" for us because the activity of entombing is carried on without consciousness of what is actually being done.

We self-consciously believe we are celebrating culture, but the self-consciousness precludes the possibility of any of the cultures we purport to celebrate being our own true culture. At the same time, we unselfconsciously entomb the cultures we purport to celebrate. Thus, not the cultures celebrated, but the activities of mummification and entombment, which we call "cultural preservation," are our true culture. Our self-conscious intent to celebrate diverse cultures is the very thing that finishes them off. At the same time, our lack of awareness that, by "celebrating cultures," we are clumsily yet thoroughly finishing them off, makes these celebrations of culture our genuine culture.

So, as of now, our predominant "cultural activity" in America consists of an interminable wake for dead, dying, or never-living cultures. Would knowledge of that fact begin the process of entombing the contemporary American culture which itself entombs other cultures? Thence the possibility of a return to a more unselfconscious development--from our own shared experience of everyday life--of a genuine American culture, one less strange and contradictory?