David Frum, The Honest Conservative

Remember Jim DeMint?

Here's what American Enterprise Institute fellow David Frum has to say about that:

Conservatives and Republicans today suffered their most crushing legislative defeat since the 1960s.

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So far, I think a lot of conservatives will agree with me. Now comes the hard lesson:

A huge part of the blame for today’s disaster attaches to conservatives and Republicans ourselves.

At the beginning of this process we made a strategic decision: unlike, say, Democrats in 2001 when President Bush proposed his first tax cut, we would make no deal with the administration. No negotiations, no compromise, nothing. We were going for all the marbles. This would be Obama’s Waterloo – just as healthcare was Clinton’s in 1994.

Only, the hardliners overlooked a few key facts: Obama was elected with 53% of the vote, not Clinton’s 42%. The liberal block within the Democratic congressional caucus is bigger and stronger than it was in 1993-94. And of course the Democrats also remember their history, and also remember the consequences of their 1994 failure.

This time, when we went for all the marbles, we ended with none.
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There were leaders who knew better, who would have liked to deal. But they were trapped. Conservative talkers on Fox and talk radio had whipped the Republican voting base into such a frenzy that deal-making was rendered impossible. How do you negotiate with somebody who wants to murder your grandmother? Or – more exactly – with somebody whom your voters have been persuaded to believe wants to murder their grandmother?

Must Read

...This.

“He wasn’t a jihadi, but I told him he should have been arrested for stupidity,” the CIA agent told New Yorker reporter Jane Mayer in an interview. Ms. Mayer’s book The Dark Side goes on to explain that two National Security Council staffers — senior terrorism expert General John Gordon, and legal adviser John Bellinger — sought to brief President Bush about reports that an innocent man was being held at Guantanamo Bay. Before they could reach President Bush, however, they were intercepted by David Addington, legal counsel to vice-president Dick Cheney, who said, “No, there will be no review. The President has determined that they are ALL enemy combatants. We are not going to revisit it!”

It is worth revisiting Mr. al-Rabiah’s case as America debates whether lawyers who did pro-bono work for Gitmo detainees desserve praise or scorn. Liz Cheney, William Kristol, Marc Thiessen, and Andrew McCarthy are among the folks who argue the latter — all either helped air or defended a television advertisement calling the subset of these lawyers who now work in the Obama Justice Department “the al Qaeda seven.” In the New York Times, Mr. McCarthy wrote, “Only criminal defendants are entitled to counsel, and those who represent them do indeed perform a constitutionally valuable function. It has never been the law, however, that war prisoners are entitled to counsel to challenge their detention as enemy combatants.” He goes on to assert that “the lawyers chose to offer themselves, gratis, to our enemies for litigation the Constitution does not require. They did so knowing that this litigation would be harmful to the war effort.”

Orin Kerr, a law professor who blogs at The Volokh Conspiracy, has published a devastating take-down of Mr. McCarthy’s argument. It is worth reading in full. I’ll excerpt just one sentence: “McCarthy strangely overlooks the basic fact that much of the litigation for the Guantanamo detainees concerns whether they are in fact the enemy.” Even as an abstract argument, Professor Kerr’s point is persuasive, as are all parts of his rebuttal. But the wrongheadedness of the Cheney/Kristol/Thiessen/McCarthy view can be fully appreciated only by looking at how it played out in a particular case.

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