I appeared on The Rachel Maddow Show last night to articulate the case against Elena Kagan, and was then followed by Kagan friend and defender Larry Lessig of Harvard Law School, who spent five minutes (in my absence) trying to discredit me and what I said (video of the two segments is below). Although I would have preferred an opportunity to address the accusations Lessig was making about me through an interactive exchange, I was glad Rachel presented both sides of the debate. But there is one serious accusation that Lessig spouted that is so blatantly and inexcusably false that I feel compelled to highlight it, particularly since I was unable to respond last night. This is what Lessig said when referencing “this work [Kagan] had written when she wrote this piece for the Harvard Law Review” in 2001:
This is another area where Glenn has just flatly misstated the case. In his piece on Democracy Now [sic] on April 13, he said that in that article, she talked about the power of the President to indefinitely detain anyone around the world.
Now, that article was written before George Bush, before 9/11, and before George Bush articulated anything about this power. It has nothing to do with the power of the President to detain anybody. The power of the unitary executive that George Bush articulated — this kind of uber power of unitary executive — was nowhere even hinted at in Elena’s article. Yet Glenn has repeatedly asserted that she is George Bush, and that is just flatly wrong.
If I were listening to that and had no familiarity with what I had written, I’d have thought: Wow, that Glenn Greenwald is either completely dishonest or a total idiot; how can he go around claiming that Kagan’s 2001 law review article defended Bush detention policies when it was written before those policies were even implemented and had nothing to do with those policies? People questioning the Kagan pick obviously have no credibility. And that, of course, is exactly the impression Lessig’s accusation was intended to create.
Except it’s totally false. I’ve never said, believed or even hinted at any such thing — let alone “repeatedly asserted” it. Lessig just made that up out of thin air and, knowing nobody was there to dispute it, unleashed it on national television. Kagan’s comments embracing indefinite detention powers came in her 2008 Solicitor General confirmation hearing when answering Lindsey Graham: please see Law Professor Jonathan Turley’s superb analysis on that exchange. Her position on detention was expressed there, not in her 2001 Law Review article, and — contrary to Lessig’ inexcusably false accusations — I never, ever claimed otherwise.
Lawrence Lessig at Huffington Post:
So I called Greenwald on that on Rachel Maddow’s show last night. I said I had enormous respect for Greenwald’s work. But that his hyperbole needed to be “checked.” And much of my ten minutes or so was devoted to pointing out the incompleteness in Glenn’s raging campaign to discredit the president’s nominee to the Supreme Court.
This morning Glenn responded to my challenging his hyperbole by calling me a liar. I had “spew[ed] total falsehoods on TV,” he claimed. And with indignation, he denied that he had asserted the things that I had charged him with saying.
My claim against Glenn is that he is fudging a critical distinction to the end of painting Kagan as some kind of Bush-Cheney monster. The distinction is between lawyers like Kagan who believe the president has broad power to control the executive branch because Congress (directly or indirectly) gave him that power, and others like Cheney who believe the president has broad power to control the executive branch because the Constitution (directly or indirectly) gave him that power. The critical word here is “broad”: Everyone agrees that there is a core of executive authority that the constitution has vested in the president exclusively. The debate is how broadly that core extends.
The difference between these two positions is critical. If you believe the Constitution gives the president absolute control over the administration, then there’s nothing that Congress can do about it. But if you believe that it is Congress who has given the president this power, then Congress can take away what it has given.
There is no ambiguity about what Kagan believes in this respect. As she wrote in her important 2001 piece, “Congress may limit the President’s capacity to direct administrative officials… If Congress … has stated its intent with respect to Presidential involvement, then that is the end of the matter.”
Glenn has referred repeatedly to this article in his criticisms of Kagan. Sometimes he is careful to make clear that it expresses a theory of executive power that is radically different from the theories of Bush-Cheney. In his original “Case Against Kagan,” he admitted that Kagan’s theory is “many universes away from what Bush/Cheney ended up doing.” I’d quibble with the characterization. It isn’t “many universes away.” It is the same universe, just the opposite view. Bush/Cheney-ites believe Congress is irrelevant. Kagan believes Congress ultimately controls.
But more recently, Glenn has been less careful in the distinction. Just yesterday, on DemocracyNow, he stated this:
But, actually, she did write a 2001 law review article on executive power that took an extremely expansive view of executive power that she herself acknowledged was first formulated by the Reagan administration to allow presidents to control administrative agencies instead of letting Congress do so.This is of course flatly wrong. Kagan’s position does not “allow presidents to control administrative agencies instead of letting Congress do so.” As I quoted above, under her position, Congress ultimately controls “instead of” the president.
The same sloppiness seeped into another appearance Glenn made on DemocracyNow about a month ago. As he said on April 13:
And what little there is to see comes from her confirmation hearing as Solicitor General and a law review article she wrote in 2001, in which she expressed very robust defenses of executive power, including the power of the president to indefinitely detain anybody around the world as an enemy combatant, based on the Bush-Cheney theory that the entire world is a battlefield and the US is waging a worldwide war.
Notice now the “law review article she wrote in 2001” is being used in the context of supporting “robust defenses of executive power, including the power to indefinitely detain.” It was this language that I called Glenn out on last night explicitly, asserting that the 2001 article did not even remotely support a president’s constitutional claim to detain, Congress’s contrary view notwithstanding.
Before I had seen Glenn’s response this morning, we had emailed about this point. He had acknowledged that the “grammar is a bit vague” but that he “never thought, implied or claimed that that article had anything to do with detention.”
But the question isn’t detention. The question of “executive power” (as opposed to government power generally) is whether the president has a constitutional authority to decide what to do independent of Congress. That was the constitutional challenge raised by Bush-Cheney. No one thinks that there’s a serious constitutional question (beyond due process rights) in this Court if Congress expressly gives the president the power to detain. The whole constitutional fight is about whether that policy judgment is one that Congress gets to participate in, or whether it is the president’s to make alone. And what Glenn was saying is that Kagan’s 2001 article is consistent with the “robust views” of executive power that Bush/Cheney advanced.
And so as I said last night on the Maddow show:
Now, that article was written before George Bush, before 9/11, and before George Bush articulated anything about this power. It has nothing to do with the power of the president to detain anybody. The power of the unitary executive that George Bush articulated — this kind of über-power of unitary executive — was nowhere even hinted at in Elena’s article. Yet Glenn has repeatedly asserted that she is George Bush, and that is just flatly wrong.This is my “falsehood” “spewed on TV.” Except that whether it was “spewed” or not, it isn’t false. Glenn has repeatedly suggested that Kagan’s 2001 article shows that she believes the president has the power “instead of” Congress. That characterization of Kagan’s view is flatly wrong. It was wrong to suggest she had said that about the ordinary work of administrative agencies. It was super-wrong to suggest she had said that about anything to do with the president’s power to wage war. To link the two together in a single sentence would confuse — even if the grammar were clear. And to hear people echo the words of Glenn, it is clear his confusion has spread.
Chill, Glenn. Dial down the outrage. Dial back the hyperbole. And stop calling those who applaud you liars. No doubt there are other progressives the president could have nominated with a clearer public record. I can well understand the frustration of some that the president didn’t pick one of these others, even if I don’t share it.
This morning, Greenwald took to the Salons with a post that’s, you know, tough — both on Lessig and in its detailedness. The talking point’s all in the headline: “How people spew total falsehoods on TV.” For the rest, there’s the text. And the twitters.
Jake Simpson at The Atlantic
McJoan at Daily Kos:
Despite Lessig’s assertion that there is “no ambiguity about what Kagan believes in this respect,” there’s certainly room to question that based on the relatively scarce record of writing from Kagan on these issues. Greenwald isn’t the only constitutional lawyer to raise them; he’s joined by Jonathon Turley. And Lessig isn’t the only attorney to dispute Greenwald’s and Turley’s interpretations of those of Kagan’s writings that are available.
This is a healthy and a critical debate. It’s one that should inform the Senators who are charged with examining Kagan for what will be a lifetime appointment to the nation’s highest court. It’s the duty of the Senators on the Judiciary Committee to question her beliefs on executive power, on the various roles of the executive versus the legislative branches and to conduct an exhaustive examination of what is going to remain a core issue for the Court in the post-Bush years. It’d be a shame to have this discussion limited to the blogosphere and the cable networks when it is so critical to the nation.
David Dayen at Firedoglake:
Actually it’s not as acid as it seems, and both Lessig and Greenwald plan to talk over their differences.
UPDATE: And here they are. Lessig and Greenwald on Bloggingheads