I have been thinking all weekend about Russellâ€™s post attacking the Mormon legislators who voted in favor of the Military Commissions Act of 2006. The post was a rant. Russell is disgusted and outraged, but there was more to the post than that. Russell didnâ€™t simply think that the Mormon legislators were wrong. He thought that they had betrayed their Mormoness at some deep level. Iâ€™m trying to figure out whether or not there is any value in what Russell has done.
Of course there is always the justifiable suspicion that discussions of procedure are simply surrogates for substantive objections. I might be criticizing how Russell is talking, but perhaps I simply object to what he is saying. So let me lay my cards on the table, at least in so far as I know what they are. Were I a legislator, I would not have voted for the Military Commissions Act. I do not think that ordinary judicial procedures are adequate for dealing with global terrorism. It seems to me that there are two poles of legality. On one end we have the ordinary criminal process, and on the other end we have the laws of war. The ordinary criminal process contains numerous provisions where we are willing to trade off safety against legal protections for the putative object of government force. The laws of war, on the other hand, allow the government to employ enormous amounts of force â€“ everything from bombing to prolonged incarceration as a POW â€“ with very few procedural protections for the objects of the force. I think the distinction lies in the relative dangers posed by war and crime. Criminals, while they can wreak much suffering on society, cannot unleash the levels of violence that a military enemy can. The â€œwar on terrorismâ€? is not a war, and I think that the source of many of the most egregious mistakes of the Bush Administration lies in their reliance on the analogy of war in dealing with terrorism. On the other hand, terrorism should not be treated as an ordinary matter of criminal law enforcement. The level of violence unleashed on 9/11 massively exceeded ordinary crime and was much more like an enemy air strike than a mugger in a dark alley.
It seems to me that what we need to do is work out procedures that place terrorism on the proper place in the continuum between crime and war. I am opposed to treating those accused of terrorism as prisoners of war, enemy combatants (legal and otherwise) who can be held indefinitely without trial until the conflict is over. I think that POW-style detention must give way to something more akin to criminal incarceration (or execution), and that requires adjudication. That adjudication, however, will necessarily need to rely on information obtained by methods that cannot be reconciled with ordinary methods of law enforcement. That means intelligence gathering that that does not comport with the Fourth Amendment. That means methods of interrogation that cannot be squared with the requirements of the Fifth Amendment in ordinary criminal investigations. I think torture and even hideous methods that the OLC argues are not really â€œtortureâ€? should be outlawed. But, I also think that the requirements of Miranda and its progeny cannot define the limits of interrogation in foreign intelligence gathering. That said, I think that there must be procedures that require the government to eventually try those that it holds. I think that there must be some sort of minimal standard to hold anyone, subject to review by an independent court. Finally, I think that United States citizens not taken prisoners on an actual military battlefield cannot be treated as POWs or anything like it. A citizen who aids the enemies of the United States has committed treason, and they ought to be tried in a full criminal trial. The Military Commissions Act does some of these things, and in some ways it falls very short. On the other hand, I expect that coming up with adequate legal mechanisms for dealing with terrorism is going to require several different drafts. The creation of good law is a cumulative process. Unfortunately, it is a cumulative process that necessarily involves the collision of actual individuals with the grinding power of the state.
That is a long aside. Now to the real topic: Russellâ€™s rant. Ranting, of course, has its place. It can be cathartic for the ranter. It can get the attention of an audience. (Russell got my attention.) It can also have other, less savory reasons, such as sanctimony and the enactment of moral self-importance. (Russell is not guilty of such vices.) Ranting is seldom persuasive or illuminating. Ranting tends to affirm the beliefs of the persuaded, and raises the hackles of the unpersuaded. It can sharpen points of disagreement, but is unlikely to move hearts and minds. Indeed, at times the aesthetic pleasure of the rant takes over. There is a great deal of fun and satisfaction to be found in carefully crafted invective. (Russell and Jonathan, at the very least, have been trying out various zingers on one another.) I like invective as much as the next person (more than most, I suspect), but it develops an internal energy of its own. Often this energy gives ranting its virtues â€“ catharsis and attention-grabbing effect. Sometimes not. What ranting doesnâ€™t do very well at all is analyze, probe, or illuminate. I think that Russell mischaracterized the Military Commissions Act. Itâ€™s the nature of the medium.
Russell, however, wasnâ€™t simply offering a political jeremiad. It was a Mormon jeremiad. On one level, I applaud the Mormoness of Russellâ€™s rant. I want to see what Mormonism means for what we think about the rest universe, and politics and law are certainly a part of that universe Iâ€™m particularly interested in. Furthermore, unlike Russell, in many ways I like a more theologically insular, less ecumenical Mormonism. Finding the kernels of Lutheranism in the Restoration is less appealing to me that thinking about the significance of Kolob or the possibilities of the King Follett Discourse. Hence, I liked the religious parochialism of Russellâ€™s attack.
And yet. I think that people can be wrong without being foolish or evil. I think that people can be wrong without failures of reason or integrity. Sometimes, problems are just hard, and two smart people working in good faith will reach different conclusions. One of them will be wrong. Such is the world, and often there is no need to seek for childishness or moral failure to find the origins of error. Ordinary humanity is fully sufficient. I think that some of the legislators that Russell excoriated are cretins or clowns. On the other hand, I know that some of them are good and thoughtful men, who simply came to a different conclusion than me. I think that they are wrong. I donâ€™t think that they deserve the vitriol Russell and his friends poured upon their heads.
Disagreement and diversity is a problem for Mormonism. After all, Zion is supposed to be of one heart. Yet working out the implications of Mormonism will require disagreement, argument, and criticism. We must to be able to advance positions such as â€œThe Restoration implies ABCâ€? and have people respond, â€œThat canâ€™t possibly be right for reasons XYZ.â€? It is fashionable in some circles to dismiss any discomfort with this process as rank anti-intellectualism, but that is not fair. There is no logical connection between criticizing ideas and criticizing people, but there are powerful social and emotional connections. And at the end of the day, I suspect that Zion is more social and emotional than intellectual, for the simple reason that lived experience is so much richer than can be captured by conceptualism. Hence, we ignore emotional and social connections in favor of logical independence at our peril.
One solution to the problem, of course, are the sort of table manners that are very imperfectly contained in the T&S comments policy: donâ€™t attack the faithfulness of others, donâ€™t suggest that others are personally sinful, etc. etc. Table manners, unfortunately, can only take us so far. I think that Russell’s rant was in many ways mistaken and unfair. On the other hand, jeremiads are nothing if not an integral part of the scriptures, the Restoration and the Gospel. Just because reasonable people can come to different conclusions doesnâ€™t mean that people cannot be seriously, even hideously wrong. There are no doubt times when table manners trivialize the issues involved. The problem of Mormon thought is to navigate between the requirements of reasoning together and the requirements of shouting truth from the housetops. And knowing when to do one or the other.