How People Spew Total Falsehoods on TV (Elena Kagan)

[IndianaGreen]

Published on Tuesday, May 11, 2010 by Salon.com

How People Spew Total Falsehoods on TV

by Glenn Greenwald

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.

http://www.commondreams.org/view/2010/05/11-3

[Nite Owl]

1. I hope that Rachel

addresses this tonight to correct what Lessig said.

[Enrique]

4. I expect that she will

one great thing about Rachel is that she doesn't like guests misleading her audience.

[jefferson_dem]

6. I hope she addresses it...

but I don't think there's any need to correct what Lessig said. He was right.

[Luminous Animal]

13. She posted a link on twitter to Greenwald's rebuttal.

Given that she has 1.65 million followers, Greenwald says he can live with that as most of her audience will see it.

[Cowpunk]

15. Really?

When has Greenwald repeatedly asserted that Elena Kagan is Gearge Bush?(in drag, I presume).

[Name removed]

2. Deleted message

Message removed by moderator. Click here to review the message board rules.

[ShortnFiery]

3. We are blessed to have a truly moral intellectual on our - LIBERAL - side.

If I were blessed with such high intellect, it would be tempting to "sell out" to power and money over honest debate.

[ProSense]

9. "We are blessed to have

a truly moral intellectual on our - LIBERAL - side."

Fanaticism gone drastically wrong.

[jefferson_dem]

11. Blessed?

The only thing missing there is "Great Leader".

[jefferson_dem]

5. Greenwald is wrong.

I've pasted a partial transcript below, from the DemocracyNow segment. See for yourself how he actually did assert (as Lessig argued) that in her Harvard Law Review piece, Kagan indicated she would support indefinite detainment based on executive power.

"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."

http://www.democracynow.org/2010/5/10/progressives_divided_over_obamas_nomination_of

[phleshdef]

8. Yea, if Greenwald didn't mean it that way, he needs to admit that he poorly communicated his point.

There is no question that the way that 1 sentence in the DemocracyNow piece is worded makes it seem like he is trying to tack her with approval of Bush/Cheney administration abuses. He seems to be back pedalling now.

[Cowpunk]

14. I agree, and disagree

The sentence is technically accurate, I believe, but misleading. Kagan's remarks at her confirmation hearing are indeed as bad as Greenwald claims IMO, and her Harvard Law Review article does nothing to negate that view. However, Glen's poor wording makes it sound as though the article she wrote contains all that bad stuff. He should correct the record in that regard.

[Luminous Animal]

10. Actually...

"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."

She did exactly that during her SG confirmation hearing.


She also, in 2001, expressed a robust defense of executive power.

[jefferson_dem]

12. Perhaps.

But the two claims should be separate and not be conflated as Greenwald did on Democracy Now. And then he proceeded to disparage Lessig for pointing that out.

[ClarkUSA]

16. You're wrong. ThinkProgress sets record straight on Kagan...

"Glenn also notes an exchange between Senator Lindsay Graham and General Kagan (R-SC) regarding her views on indefinite detention. In that exchange, Kagan acknowledged that America may indefinitely detain a known terrorist, yet she was also very clear that such a detention could only occur after the detainee received “substantial due process” from an “independent judiciary” in a “transparent” process. In other words, Kagan embraces Justice Stevens’ view of detainee rights, as Stevens has consistently voted to resist Bush’s theory of detention-without-due-process.

A vaguely-related issue is Kagan’s view of the White House’s role within the Executive Branch. In her seminal article on “Presidential Administration,” General Kagan touts the Clinton White House’s supervision of executive branch agencies to ensure that those agencies achieved the “progressive goals” President Clinton was elected to achieve. There is a healthy debate in the progressive legal community regarding how aggressive a president should be in supervising the agencies, but it is also important to note what Kagan’s article is not about. Kagan’s article is about which part of the Executive Branch–the White House or the agencies–should take the lead in setting policy. It does not call for the kind of presidential seizure of power from the legislative and judicial branches that was so common under George W. Bush.

Kagan is also likely to be a much-needed voice against Chief Justice Roberts and Justice Alito’s crusade to immunize wealthy corporations from accountability under the law. As an adviser to President Bill Clinton, Kagan spearheaded bipartisan legislation to prevent tobacco companies from marketing their products to children — only to watch the court’s conservatives apply an implausible reading of the law and hold tobacco companies immune from such regulation. So Kagan knows what it is like to see years of effort to protect the American people’s heath and safety destroyed by a Supreme Court more concerned with protecting corporations than with upholding the law. Kagan spent much of her career crafting laws intended to protect ordinary Americans–so she understands the terrible consequences of ignoring the law to suit a narrow interest group’s agenda."

http://thinkprogress.org/2010/05/10/kagan-nomination/

Hat Tip: Green Lantern

[phleshdef]

17. "Robust defense of executive power" tells me nothing about what she actually expressed.

I would robustly defend any and all executive power that is constitutionally sound. Presidents DO in fact have legally granted power. Otherwise, there would be no such thing as an executive in the first place.

[AtomicKitten]

7. I'm with Professor Lessig on this one. nt

[WeDidIt]

18. And Lord High Douchenozzle just can't stop digging

Hint, Lord High Douchenozzle, when it gets difficult to breathe it might be time to stop digging and start trying to climb out of the hole you got yourself into.

[ClarkUSA]

19. SCOTUSBlog refutes Glenn Greenwald's criticism of Elena Kagan view on executive power.

SCOTUSBlog, in their 9,750 word profile of Kagan:

"Some have criticized Elena Kagan for supposedly favoring a strong view of executive power. They equate her views with support for the Bush Administration’s policies related to the “war on terror.” Generally speaking, these critics very significantly misunderstand what Kagan has written.
Kagan’s only significant discussion of the issue of executive power comes in her article Presidential Administration, published in 2001 in the Harvard Law Review. The article has nothing to do with the questions of executive power that are implicated by the Bush policies – for example, power in times of war and in foreign affairs. It is instead concerned with the President’s power in the administrative context – i.e., the President’s ability to control executive branch and independent agencies. That kind of power is concerned with, for example, who controls the vast collection of federal agencies as they respond to the Gulf oil spill and the economic crisis."

http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=433x294009

Glenn Greenwald is clueless. This is not the first time he's been erred in his legal understanding and judgment, either:
http://www.democraticunderground.com/discuss/duboard.php?az=show_mesg&forum=433&topic_id=291738&mesg_id=291738

[Jeff In Milwaukee]

20. I Agree With Glen Greenwald, when he says....

"Glen Greenwald is either completely dishonest or a total idiot."

Although I don't think this is necessarily and either/or proposition. He could be both.

Jonathan Turley's "superb analysis" consists of a single sentence in which Turley simply asserts that Kagan believes the financiers of terrorism should be subject to the same treatment as the terrorists themselves. That's it - a mere statement of opinion without any analysis whatsoever.

Superb!

So in refuting the charge of lying, Greenwald resorts to telling yet another lie to clear himself.