Attorney General John Ashcroft wasn't nearly as forthcoming as Judge Hand when he proposed sweeping investigative and prosecutorial iniatives to combat terrorism in the aftermath of the September 11th tragedy, pursuant to the Patriot Act. The attorney general routinely came across as tentative, and at times even squirming, when asked to explain how his fast-track, furtive procedures to interview, arrest, and interrogate Middle Eastern men was consistent with civil liberties. His concept of military tribunals provoked even greater discomfort--and for good reason. The fact is: Middle Eastern men with any links to Al Qaeda were going to receive a very different brand of justice from the rest of us, and it was absurd for the attorney general to make it seem as though these post-September 11th investigations and prosecutions complied with constitutional safeguards of justice.
These were indeed strange times and special circumstances. There might have been strong moral and political reasons to justify Ashcroft's various undertakings, as abhorrent as they may have sounded to civil libertarians. Ashcroft wasn't entirely truthful when he tried to suggest that his legal initiatives comported with the law. Because they didn't. Unfortunately, he tried to present his case in legal terms. But the constitutional ground on which he was standing was genuinely shaky. He would have been far better off, and more intellectually honest, had he instead rested on the moral found of Ground Zero. The hole in the ground where the World Trade Center once stood may have warranted an alternative path to justice, one perhaps that was legally suspect by morally sound. (MoMJ at 161, my emphasis)
WHAT THE FUCK? Just to be clear here, Rosenbaum is saying that restricting civil liberties for men of Middle Eastern descent would have been morally justified in the aftermath of 9/11, and that Ashcroft's failure was not pursuing those policies but rather trying to give the policies a veneer of legality. He's throwing out the constitution, and I don't care who you are, that's wrong.
As I said before, I am a Liberal with deontological leanings and aristotelian sympathies. I believe in human rights. His position is unacceptable--he is in fact arguing for something that is profoundly immoral.
So, those two paragraphs were the beginning of the end. He hurt himself further by repeated referring to the Midwest as "Middle America," and praised the politeness of "Middle America and the South." (MoMJ at 191) Of course, this is nonsense. He's just reenacting stereotypes about the Midwest and importantly about eastern cities.
Finally, he maintains enormous contradictions in his theory. Rosenbaum argues that apologies should build the foundation for moral justice. Thus he writes this:
This is what the grieving mother in A Civil Action viscerally understood. This is what she had hoped would happen; as a remedy this is what she most wanted. Although an apology wouldn't bring back her child, it would provide the unfiltered, moral acknowledgement of loss, and the acceptance of responsibility. What she needed--and what she was morally entitled to--was to make a human connection with the person or entity that robbed her of her child, and for that person to stare grief in the face and try to imagine the knee-buckling horror of her loss. (MoMJ at 184)Purple prose aside, this is stupid for a variety of reasons, not the least of which is that even if someone wants to apologize, you can't make them "stare grief in the face" and you certainly can't make them "imagine knee-buckling horror." That's just ridiculous. And Rosenbaum knows it:
The healing power of an apology is morally vital, but seldom seen. . . . In the United States, apologies are cynically applied, given as an excuse or justification for less than exemplary conduct, and not as sincere gestures of contrition. When Americans apologize, they do so grudgingly so as to avoid having to pay some other price, or in order to mitigate their punishment, and not out of a sense of social or moral responsibility--not because they should, but because they have to. (MoMJ at 185)Note the citations--that paragraph is on the VERY NEXT PAGE. This is also ridiculous on multiple levels. First, he has been arguing the entire book that people don't want money out of their lawsuits, that they really want someone to understand their pain, and apologies are useful to this end. But here he is recognizing that people apologize to avoid paying damages--something he thinks is apparently bad. The real contradiction, though, is his acknowledgement that apologies, though "morally vital," can be used cynically. Guess what, Thane, give people the opportunity to apologize without any legal consequences, and they will say whatever you want them to.
This observation leads to the final blow: Rosenbaum is aiming at the wrong target. He likes to lay all these moral problems at the feet of the legal system, but he's really arguing that society as a whole needs to be more contrite and more willing to apologize. It doesn't have anything to do with the legal system. It has everything to do with how people, individually and outside of their legal actions, are immoral. He needs to write a book entitled, "Be More Moral, Apologize." That's it. That's the point of his book.
So, I couldn't bring myself to finish this book.
