I've been surprised by how readily President Obama has embraced Bush-era legal arguments on detainee issues, and particularly troubled by his assertion that he possesses the unchecked power to assassinate, without due process, American citizens who he designates as "enemy combatants." Presuming that the Republican nominee in 2012 is also bad on civil liberties, what should a voter who cares deeply about these issues do?
A. That's hard to say, because ultimately, elections are about comparative choices, making it difficult to assess what one should do against an unnamed opponent. If the GOP opponent is substantially worse, that would be a different calculus than if s/he is merely marginally worse or roughly as bad.
But what is clear is that, for a variety of reasons, the two-party system does not work in terms of providing clear choices. No matter who wins, the same permanent factions that control Washington continue to reign. That's true no matter which issues one considers most important. At some point, it's going to be necessary to sacrifice some short-term political interests for longer-term considerations about how this suffocating, two-party monster can be subverted.
Q. You've been adamant about the need to investigate lawbreaking during the Bush Administration, and to prosecute former government officials who committed illegal acts, arguing that it's integral to the maintaining the rule of law in America. There is, however, precedent for presidential lawbreaking in wartime, and the United States rolling back its worst excesses without ever actually going through a prosecution. So is it really vital that we prosecute former officials like, say, Dick Cheney? Would we be better off today if past presidents -- FDR or LBJ, for example -- had been prosecuted for war crimes?
A. Just because something was done in the past is no reason to consider it a good thing or to continue to do it in the future. I absolutely believe that prosecution of past war crimes would have produced extremely good results. At the Nuremberg Trials, Americans themselves explained why it's so vital not to permit serious crimes to go unpunished: it's not just a matter of justice (though it is that), but also future deterrence. If war crimes are permitted to go unpunished, it is virtually certain they will be repeated.
If Presidents know that they can commit serious crimes with impunity (as they know now), then one thing is certain: they'll continue to commit them. What possible reason would any future rational Presidents have for refraining from torture or other war crimes if they decide they want to do that? They can do with absolute impunity, so why wouldn't they, and why shouldn't they? That's the framework we've created.
More broadly, the Founders emphasized continuously that America would entail all sorts of inequalities: in talent, in abilities, in wealth, in power. All of that was acceptable provided everyone played by the same rules, which are set forth in what we call "the law." The only way outcome inequalities can be justified is if everyone is subject equally to the rule of law. Once you start exempting people based on their status (which is what happens when Presidents are immunized for their crimes), a central premise of the American political system -- that everyone is equal under the Rule of Law -- is subverted, and all of the other inequalities become indefensible.
Q. You'd think that Tea Partiers, with their distrust of President Obama and their ostensibly libertarian ethos, would be allies in the fight to rein in executive power. On the other hand, these are people who look to War on Terrorism hawks like Rush Limbaugh, Sarah Palin and Mark Levin for intellectual leadership. To complicate things even more, some of these people are huge Ron Paul fans. In your work, do you presume that you can win some of these people over to your civil libertarian position, or do you assume that an alliance of this kind is untenable?
A. It's absolutely tenable. Some of the earliest and most vocal opponents of the Bush/Cheney assault on the Constitution were found on the Right. Back when virtually all leading Democrats were petrified of opposing George Bush on anything having to do with Terrorism -- or, worse, were actively supporting what he was doing -- people like Bob Barr, Bruce Fein, the Cato Institute, even George Will were emphatically objecting. I devoted a chapter in my first book, about Bush's executive power abuses, to conservatives who consistently applied what they were saying about such things in the 1990s to oppose those abuses when perpetrated by a Republican administration.
As you suggest, when it comes to Terrorism issues, Ron Paul is as steadfast in defense of civil liberties as any major political figure in the country. A significant minority of my readership has always been libertarians and other non-progressives who viewed Bush radicalism with serious alarm. I've written about civil liberties in The American Conservative several times. When Jane Hamsher and I founded Accountability Now, to target incumbents who served corporate and Beltway interests rather than their constituents, we did so by forming a coalition with libertarians and others devoted to civil liberties protection. There is much greater agreement across the ideological spectrum than our conventional political punditry wants to recognize.
But clearly, the people on the Right genuinely devoted to civil liberties and restraining executive power are (as is true for Democrats) only a minority. The problem is partisan tribalism. Most people care about restraining executive power and fighting for civil liberties only when their party is out of power. When their party is in power, they place blind trust in political leaders and believe they will do Good without any need for checks and restraints, because they are Good. That's why conservatives who spent the 1990s shrieking about the tyrannical FISA court (it issued warrants for the Government to eavesdrop on Americans in secret!) suddenly favored warrantless eavesdropping (and every other unchecked power) when a Republican was President, and it's why so many Democrats who spent the last decade pretending to be so upset about Bush's Terrorism policies and expanded powers are perfectly content now that it's Barack Obama wielding them.
That said, I think the citizenry is becoming less and less defined by loyalty to one of the two parties, and these partisan divisions are breaking down, becoming much less clean. We saw that with opposition to TARP, the general anger toward corporatist control of Washington, discomfort with our policy of endless wars, and the widespread disgust with incumbent power. Far more important than Right v. Left is insider v. outsider (or politically powerful v. powerless). That fact is becoming more crystallized, and the more that happens, the more the artificial barriers that divide citizens (Right and Left) will erode, the more apparent will be the commonalities. The political establishment (both parties) benefits from keeping citizens divided against one another based on trivial distractions and tribal loyalties, which has the effect of strengthening the political establishment. That's been the impediment to having citizens across the ideological spectrum join together to combat abuses of power in Washington, and I think it's eroding. That, I think, is what Washington elites fear most.
Q. You've been critical of the Washington DC press corps -- especially the folks who cover the White House -- for their cozy, self-serving relationship with powerful sources. Do you have any ideas for remedying this situation? If you were DC Bureau Chief at The New York Times, how would you cover official Washington?
When I began writing about politics, I believed that applying pressure, shame, and the like to our national journalists could help influence behavior in a positive way. I no longer think that. Our national media isn't subservient to political power because of the behavior or personality attributes of any particular journalists -- at least not primarily. The real problem is structural and cultural. The largest corporations which own the largest media outlets need to maintain a positive, constructive relationship with the government -- as the corporate-government axis grows, that relationship becomes increasingly important -- so the last thing they want to do is antagonize political power.
Journalists who work for the largest media outlets are nothing more than corporate employees -- no different than the Accounting Manager or Sales Representative in a non-media division. All people who work in large corporations know what is expected of them, know what can advance or undermine their careers. There's just no incentive for corporate journalists to be hostile or even adversarial to the powerful; the opposite is true: their career incentives are for them to be as friendly as possible. There are all sorts of other, frequently noted reasons why our major journalists are largely so subservient to political power: that's how lazy journalists secure access and thus "scoops"; corporations in general tend to hire people whose instincts are to please and accommodate authority rather than work against it; journalists now reside in the same socioeconomic circle and celebrity culture as the politicians they cover, etc. etc. But ultimately, corporate ownership of the largest media outlets means there are structural impediments to an adversarial press corps.
That's why I no longer think the goal is to reform the existing establishment media but, rather, to create an alternative to it, a competitor to it, that will perform the functions it refuses to perform. We're always going to need large media outlets. An entity as powerful and sprawling as the Federal Government can only be investigated and checked by media institutions with substantial resources. We need a corporation like The Washington Post which can pay Dana Priest to do nothing for months but work on a single story concerning CIA black sites or conditions at Walter Reed. And there are good journalists doing real adversarial work at these large media outlets. But I see blogs and other alternative media sites as using technology to supplement what those media outlets do and performing the functions they fail to perform.
Q. How does your background as a constitutional law and civil rights litigator inform the way you approach research and writing as a journalist?
One of the primary skills one learns as a litigator is to make one's case by beginning with first premises, establishing their truth with evidence, and then compelling the conclusions you want others to reach. That's how I try to write now. I think that if you want to make an argument, there's an obligation to lay out the premises for it, provide evidence for it, allow readers to assess the documentation for themselves. That belief probably comes from the way judges and juries need to be persuaded that an argument is true.
Beyond that, I chose to litigate constitutional and civil rights cases, and to represent plaintiffs, because I wanted to use my abilities to empower those who are vulnerable and powerless and who are being mistreated by the powerful. That, to me, is a primary purpose of the Constitution itself, and, when done correctly, a core purpose of journalism. That's what I try to do now as well in the work I do. I'd much rather be at war with corrupt elites than serving their interests.
Q. You've complained on numerous occasions about misinformation spread in the mainstream press. If you could correct one mis-impression among Americans that is exacerbated by media, what would it be?
One particularly harmful mis-impression comes from our media's refusal to report that we ourselves frequently do exactly that which we like to believe only the Bad, Tyrannical countries do. The American media incessantly highlights the bad acts of other governments (especially the ones the American government dislikes) while completely ignoring identical acts by our own government (one illustrative example was the melodramatic obsession over Iran's detention of Roxana Sabera, or North Korea's detention of Euna Lee and Laura Ling, while completely ignoring the far more severe detentions of Al Jazeera and other journalists for years by the U.S. Government without any charges whatsoever; that creates the severe mis-impression that detaining journalists is something only the Bad, Tyrannical countries do). That's exactly the opposite of how it should be -- the American media should be far more interested in the abuses of our own government than those of other countries -- and it creates this severe mis-impression that only other countries, but not America, engage in these bad acts. It's pure propaganda.
Q. The model you've used to succeed in the blogosphere is quite unlike most other high-traffic bloggers -- you generally post no more than once a day, your output tends to come in long, researched posts rather than shorter, "blog-length" items, your tone is more earnest than most, and you're funded by a mix of a journalistic institution and reader contributions. Is this a model that has a future among other writers? What accounts for your having arrived here, whereas other professional progressive bloggers seem to be paid solely by their employer and produce many posts a day to keep up traffic?
The most important asset I have is that I'm only answerable to my readers. Even when I moved my blog to Salon, it was non-negotiable for me that I would retain absolute editorial independence: nobody has the ability to change a comma of what I write, to direct that I write or not write about a topic, etc. Salon has been superb in that regard -- they've provided support when I've asked but never interfered in anything I've written and have always stood behind it, even when influential people have complained vociferously -- and I would never put myself in a situation where that wasn't the case. I have a reader fund-raiser once a year which ensures that I can continue to work independently (i.e. not have to work at larger media outlet where I'd lose independence) and which allows me to have a research assistant and other tools that aid what I do. It's the perfect balance of being accountable but also fully independent.
As for blogging style, there's obviously a demand for all different types of approaches. I'm aware that my writing demands a lot from readers in terms of time and attention, and some people are not going to read what I write because of the length or complexity. That's fine. I'm happy with that. I'm aware that if I shortened and simplified what I wrote, there'd be some additional people who would become readers who aren't now (though I'd also likely lose readers as well). I don't necessarily want a readership that has a short attention span or which demands that everything be reduced to four simple sentences. Given the size of my readership, and the fact that it's grown steadily beginning with the day I began writing, there is obviously a substantial demand for the kind of writing I do, so there's no reason for me to change it.
I don't think any one style is objectively superior. Some of my favorite bloggers are the pithiest and rarely write more than a paragraph or two. Others who I read every day write long essays. For me, I try to write in a way that would persuade me if I were the reader. When I read an argument, I don't want to have premises tacitly assumed or conclusions asserted without documentation. That often leads to sloppy analysis or cheap, crowd-pleasing showboating. I want to see assertions proven and conclusions demonstrated with a full logical thought-train. Since I want that when I'm a reader, that's what I feel obligated to provide to my readers, even if it means much longer and more detailed posts than is the norm. For people who want to ingest everything in no more than 100 words, there are millions of blogs for them; I have no interest in replicating that.
As important, it's necessary to write longer and more evidence-based arguments if you're making points outside of the conventional categories of political debate. The reason cable news shows can have 4-minute segments is because they rarely include anything other than the standard Democratic and GOP talking points. Everyone is already very familiar with all the premises. Nothing needs to be explained. The discussion basically writes itself. If I were one of those bloggers who wanted to wake up every day and write some version of "Democrats-are-great/GOP-is-horrible" or vice-versa -- just regurgitate DNC and RNC talking points every day -- I wouldn't need more than a paragraph for any argument. I'd have a readership already on board with everything I wanted to say, and nothing would need to be explicated. I would just feed them the conclusions they already embrace (Rush Limbaugh is a liar! Sarah Palin is stupid! Glenn Beck is crazy! Michael Moore is fat!) and all would be harmonious. But if you want to write outside of that framework, you can't rely on already-assumed premises. You have to re-create the perspective from scratch. That means beginning with the initial premises, proving them with evidence, and building them into a coherent whole. That takes space and time and words to do, and that's how I prefer to write.
Q. You self-identify as a progressive. I consider myself a mix of conservative and libertarian, though when I write here at The Atlantic or do guest spots on All Things Considered, I'm identified merely as "a Southern California based journalist" or some such. We both do our best to produce intellectually honest analysis grounded in fact, research, and logic. Are the ideological labels so ubiquitous in our political discourse more trouble than they're worth?
I actually don't self-identify as a progressive or as any other political label, for exactly the reason you suggest. Those labels mean so many different things to so many different people that they are essentially impoverished of meaning. They're also used as crutches in lieu of substantive arguments; if you can successfully apply a bad label to someone, then you don't have do the work of disproving what they say, and can assume all sorts of things about them and their beliefs which aren't necessarily true (I'm guilty of using labels myself that way for others, though I make a concerted effort to avoid it). And accepting those labels for oneself can create tribal allegiances that can undermine objective, independent and honest analysis.
Ever since I began writing, people have applied a whole range of those labels to me, and I've never accepted or rejected any of them. I don't really care what labels are applied to me. I make my arguments and I'll let others decide in which category it places me. When I first began writing, I was always amazed how I automatically had the "liberal" or even "Far Left" label applied to me even though I was writing almost exclusively in opposition to Bush/Cheney lawlessness -- meaning in support of concepts such as due process, search warrants, the Geneva Conventions, the rule of law, refraining from attacking countries that hadn't attacked us and couldn't do so. It was bizarre to me that a belief in the Fourth Amendment and the rule of law was deemed Leftist; when did that happen? In reality, that label was applied to me because I was vehemently criticizing a Republican, "conservative" President; therefore, I was, by definition, a liberal or Leftist, regardless of what views I was actually advocating. Now that I spend substantial time criticizing Obama, I've had other labels applied to me. That's why I say: these labels are, at best, nothing more than tribal signifiers, and I don't really see much value in them.
Q. Imagine that you've been contacted by my former professors at New York University's journalism school, and told that the entire student body will be given one assignment of any kind based on your recommendation. What would you have them read, research, write or do to make them better journalists?
I'd have them read any randomly selected writings from I.F. Stone -- his speeches about what makes a good journalist, any of the newsletters he published over the years, interviews he gave about why our modern press corps was nothing more than an arm of the political establishment.