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Bench Memos

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Getting the Facts Right



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I’m back from a few days at the annual meeting of the American Political Science Association, held this year in Philadelphia. As usual, the best panels were put on by our friends at the Claremont Institute, which probably produced discussions of greater interest and more intellectual diversity in its dozen panels than the APSA itself did in its many hundreds. On Thursday morning I was treated to a real set-to over presidential power under the Constitution between Joseph Bessette (Claremont McKenna College) and Gary Schmitt (American Enterprise Institute), on the one hand, defending President Bush’s energetic exercise of executive power, and David Gray Adler (Idaho State) and Michael Genovese (Loyola Marymount), on the other hand, attacking the president as an incipient tyrant who is undermining the rule of law and the separation of powers.

Bessette and Schmitt were the clear winners, with calm reason and carefully constructed arguments. Adler and Genovese put on a good show of indignation, but fell short on both evidence and constitutional theory, with a heavy reliance on rhetorical overstatement. Indeed, more than once they made claims that distorted or misstated simple, checkable factual matters. Here’s an example: Adler claimed, with a specific date citation, that on February 7, 2002, President Bush asserted that he could and would “set aside the Geneva Conventions” (Adler’s exact words, from my notes of that morning). Well now (sound of throat clearing), if one goes here to what Adler is surely citing, one finds that the president made the much less astounding claim that since al Qaeda “is not a state party to the Geneva Convention . . . its members are not entitled to POW status.” This is so far from being a presidential decision to “set aside” the Convention that it is, as any reader will notice, an interpretation of the Convention’s meaning. And so far, even the runaway Supreme Court that made the ridiculously wrong Hamdan ruling (cogently dissected by Joseph Bessette at this same panel) hasn’t seen fit to reverse this particular determination of the president.

Michael Genovese, just as absurdly, claimed that President Bush has outdone Lincoln in asserting a power to go beyond the law (my paraphrase this time). Never mind that this doesn’t quite get even Lincoln right. Genovese neglected to supply a single instance in which the administration has asserted anything like a presidential prerogative to ignore, violate, abrogate, or otherwise act contrary to any valid legislative act of the Congress or any requirement of the Constitution.

The late Daniel Patrick Moynihan is said to have said that everyone is entitled to his own opinions, but not to his own facts. (I use no quotation marks because this semi-famous Moynihanism is devilishly hard to pin down as to either its exact words or its provenance.) We seem to have an epidemic in the academy of “scholars” who have no respect for the most basic of duties for the construction of honest arguments: begin with the facts.


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