The reviewer reviewed

Posted by lex, on November 19, 2006

One of the joys of Sunday mornings for me has always been the New York Times review of books, which comes as an insert in the local paper. I’ve always loved to read, but life is pretty full right now and I don’t get the chance as much as I would like. Skimming the NYT review gives me the sense that I’m keeping up with the literary world on the cheap, time being the fire that we burn in.

It is not always thus, alas: To read the NYT Book Review is also to be imposed upon by one Michiko Kakutani. It is a disconcerting thing, when reading your Sunday paper, to sense that you are in the presence of a kind of steely, determined madness, and whatever else you might say of her, Ms. Kakutani has the power to disconcert. Is it enough to know that Ms. Kakutani graduated from Yale in 1976, worked at the Washington Post for a time before moving up country and landing paid work at the Times and winning the Pulitzer Prize for criticism in 1998? Is it sufficient to know the labels that authors from such differing schools as Norman Mailer (”kamikaze”) and Salman Rushdie (”weird”) use for her? Or that the former avers that the editors at the Times were too terrified of her to let her go?

No. It is not enough. But it is at least a start.

This week Ms. Kakutani reviews “War by Other Means,” by former administration lawyer and current UC Berkeley prof John Yoo. Or I should say, she pretends to review the book: In this instance her writing occupies a blurry boundary between a not-quite rebuttal – a line she could have crossed, had she made any affirmative assertions of her own – and a 1400+ word gasp of outrage. In the space between the two we do not learn much about Mr. Yoo’s book but that Ms. Kakutani does not agree with any of it. She never quite condescends to tell us why – the proofs, if any are necessary, are left to the reader.

Mr. Yoo has not used his academic background in the legal aspects of war powers issues and executive authority to make a persuasive case here for the administration’s actions. Instead, he has written a book that reads like a combination of White House talking points and a partisan brief on presidential prerogatives — a book that is strewn with preposterous assertions, contorted reasoning and illogical conclusions. He writes that “because of our aggressive policies post 9/11, al Qaeda is no longer the threat it was.”

One gets the sense that Ms. Kakutani is unlikely to be persuaded on the legal aspects of the war no matter what Mr. Yoo might write, and that when she talks of “preposterous assertions” she is engaging in a bit of projection. Ms. Kakutani writes later that, “Just as the administration cherry-picked intelligence to make the case that Saddam Hussein possessed weapons of mass destruction, so Mr. Yoo cherry-picks information in this volume.”

Her vision of the war’s justifications and the president’s prerogatives in waging it as being “partisan” in nature is also particularly revealing, given the fact that the Authorization on the Use of Military Force was approved by bipartisan majorities of both houses in Congress. Exactly what that authorization meant, and what were its limits have been the subject of an on-going and spirited debate. Mr. Yoo himself has come under criticism in the course of his duties for asking exactly what does and does not constitute “torture.” Not whether torture is permissible – everyone agrees that it is not as a matter of policy, but what “it” is. These are grown up topics, and they require grown up thinking but it seems as though the only morally permissible way in Ms. Kakutani’s universe to deal with unlawful combatants captured in armed conflict against the US, people who have demonstrated no affiliation, care or understanding of the laws of armed conflict, no limits to their depredations and who might very well know things that could save the lives of non-combatants here at home or overseas is that they mustn’t be interrogated at all. That’s the only way to be sure that we don’t cross the line, if we decline to define where the line is.

It’s also useful to reflect that of all the presidential crimes and misdemeanors alleged by partisans over the course of the last three years, Congress has never yet acted in concert to check his execution of war powers and the only time that the Supreme Court has called the President across the line – the Hamdan decision on detainee judicial processes – he was referred back to Congress to get legal backing for the powers sought. His immediate willingness to do so does not mollify Ms. Kakutani however. Instead she sees the cooperation of two co-equal branches of government engaged in outlining the legal processes for fighting a war in the 21st century as some kind of dark and sinister attempt to muzzle the third:

Never mind that the judiciary, which Mr. Yoo says in this passage can be counted on to curb any possible overstepping by the Bush White House, may have had its power to review the treatment of detainees sharply curtailed by Congress’s recent passage of the Military Commissions Act of 2006…

Exactly how the federal judiciary has relinquished its right to review this or any law passed by Congress is once again left to the reader.

The fact that her first example of “preposterous assertions, contorted reasoning and illogical conclusions” is Yoo’s assertion that al Qaeda is “no longer the threat it was” – a fact that is self-evidently true, given the thousands of Qaedists killed in battle and the leadership’s atomization and decapitation – is also noteworthy. Ms. Kakutani, from the strength of her Manhattan fastness obviously disagrees, but nothing further is said on the topic, no contrary evidence provided. Like cherry picked intelligence and straight-jacketed judiciaries it must be thought enough that she, Ms. Kakutani, says it is so.

The reader does not get a firm feeling from Ms. Kakutani’s review what kind of writer John Yoo, a man who spent his career as a lawyer in the arena, might make. He is left however with the certainty that if she had ever wondered to herself, in those heady days of her post-Yale youth, whether to pursue a career of open disputation in the law rather than that of the solitary polemicist’s argument by unsupported assertion, she chose wisely in the end. There’s a place for that sort of thing in the New York Times, but much less room for it in the law.

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Filed under Carroll "Lex" LeFon, Lex, Politics and Culture

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