UNIVERSITEIT VAN AMSTERDAM

Strategic Maneuvering and Media Bias in

Political News Magazine Opinion Articles
A Pragma-Dialectical Perspective

Graduate School for Humanities

M.A. Philosophy
Discourse and Argumentation Studies
Supervised by Dr. Jose Plug & Dr. Bart Garssen

Stefano Mario Rivolta

6/7/2011

Present in many forms, the critically influential phenomenon of media bias in American political
culture serves as the macro-context for pragma-dialectical analyses of rhetorical and dialectical
argumentative maneuvers within conservative and liberal political news magazines. In the
following dissertation, are four analyses of strategic maneuvering in magazine opinion articles in
response to the legal ruling by the U.S. Supreme Court landmark case in the Boumediene v. Bush,
553 U.S. 723 (2008)
 TABLE OF CONTENTS

CHAPTER 1 – RESEARCH PERSPECTIVE AND AGENDA

1.1 CENTRAL FOCUS…………………………………………………………………………………………………………………. 2

CHAPTER 2 – POLITICS, BIPARTISAN MEDIA, AND BIAS

2.1 POLITICAL ARGUMENTATION………………………………………………………………………………………………. 6
2.2 AMERICAN MEDIA ……………………………………………………………………………………………………….……… 8
2.3 MEDIA BIAS ………………………………………………………………………………………………………………………… 8
2.4 FOUNDATION OF AMERICAN BIPARTISANSHIP ……………………………………………………………………10
2.5 LIBERALS AND CONSERVATIVES ………………………………………………………………………………………… 11
2.6 POLITICAL NEWS MAGAZINES IN AMERICA…………………………………………………………………………. 11
2.7 INSTITUIONALIZING POLITICAL OPINION ARTICLES IN NEWS MAGAZINES…………………………. 12

CHAPTER 3 – SETTING UP THEORETICAL FRAMEWORK

3.1 PRAGMA-DIALECTICAL APPROACH ……………………………………………………………………………..……. 13
3.2 RULES OF CRITICAL DISCUSSION ………………………………………………………………………………………. 14
3.3 STRATEGIC MANEUVERING ………………………………………………………………………………………………. 15
3.4 APPLICATION OF PRAGMA-DIALECTICS: OPINION ARTICLES ON BOUMEDIENE…...………….….. 16

CHAPTER 4 – BOUMEDIENE V BUSH ADMINISTRATION

4.1 THE HIGHEST COURT IN THE LAND…………………………………………………………………………………… 18
4.2 PUBLIC REACTIONS TO BOUMEDIENE…………………………………………………………………………………...19
4.3 PUBLIC REACTIONS TO RULING …………………………………………………………………………………………. 19
4.4 MAJORITY OPINION ….………………………………………………………………………………………………………… 22
4.5 DISSENTING OPINION ……………………………………………………………………………………………………….. 26

CHAPTER 5 – RECONSTRUCTING ARGUMENT FROM OPINION ARTICLES

5.1 UNITS OF ANALYSIS …………………………………………………………………………………………………………… 29
5.2 METHOD OF ANALYSIS……………………………………………………………………………………………………….. 30
5.3 A PRAGMA-DIALECTICAL RECONSTRUCTION……………………………………………………………………….31
5.4 American Spectator…………………………………………………………………………………………………………...….32
5.5 TIME Magazine…………………….…………………………………….……………………………………….…………………...... 34
5.6 National Review…………………………………….………………………………………….………………….……………………. 36
5.7 Newsweek ...…………………………………….…………………….………………….…………………………………………….…. 38

CHAPTER 6 –MANEUVERING STRATEGICALLY

6.1 THREE INSEPERABLE ASPECTS………….……..…………………………….…………………………………….. 40
6.2 American Spectator. ………………………………………….………………………….………………………………………..…. 40
6.3 TIME………………………………….…….…………………………………….…………….……………………………………………. 43
6.4 National Review ……………………..………………….………………………………….….………………………………………. 45
6.5 Newsweek……………………..……………………………………………………………….……………………………. 47

CHAPTER 7 – CONCLUDING REMARKS

7.1 RECAPITULATION OF RESEARCH……………………………………………………………………………..…..... 50
7.2 MAIN FINDINGS…………………………………………………………………………………………………………......51
7.3 RELATED FIELDS.………………………………..…………………………………..…………..……….……………….. 52
7.4 FURTHER RESEARCH……………………………………………………………………………………………………. 53

BIBLIOGRAPHY…………………………………………………………………………………………………………………….……………54

APPENDICES……………………………………………………………………….……………………………………………………58

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 CHAPTER 1 – RESEARCH PERSPECTIVE AND AGENDA
1.1 CENTRAL FOCUS

In the United States, politics and media are so intertwined that most major news sources can be labeled with

respect to a bipartisan lean or bias. The nature of this relationship sets an interesting and complex stage for political

argumentation. The natural duty of the media is to inform the public of current events or report on important

happenings in society. The public audience, whether at the local, national, or global level, that pay attention to the

news cannot help but notice remarkable differences in the portrayal of certain events, especially in the realm of

political events. The most potent form of this subjective journalism is found in opinion articles. Also known as

editorials, commentaries, and more recently in the form of online blogs, these are articles in which the journalists

share information with the public, usually obtained through an investigation of the event, but simultaneously inject

his or her beliefs, sentiments, understandings of the matter into the article. Opinion articles can be found in most

newspapers and magazines, and now take the more common form as news blogs, online versions of news magazines.

In this paper, I investigate the influence of American political bias on the rhetorical and dialectic strategies found

within American news magazine opinion articles. Specifically, I analyze four opinion articles that respond to the

same U.S. Supreme Court decision regarding the treatment of detained unlawful enemy combatants at the U.S. Naval

Base at Guantanamo Bay, Cuba. I chose to divide the analysis based on the American political spectrum: two of the

articles are considered to be from liberal news sources and two are considered to be from conservative news sources.

More information on the specifics of the case and public reactions will also be discussed later on. At the end of my

analyses, I expect to answer several central questions regarding political argumentation and media bias as presented in

news magazine opinion articles. Why can American political news magazine opinion articles be considered an

institutionalized context? How does political bias influence the argumentative strategies found in opinion articles?

What rhetorical and dialectical strategies do journalists rely on in forming their arguments? What is it about the

ultra-specific context of a reactive opinion article concerning a certain politically-loaded legal decision that makes it

an exemplary environment for strategic maneuvering? Do these conditions restrict and/or allow the journalists‘

argumentative freedom in addition to advantages or disadvantages?

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 This research aims to contribute to the study of argumentation theory within the general context of political

argumentation and the specific context of online magazine opinion articles written in reaction to a specific federal

court case ruling. Utilizing recent developments in pragma-dialectics to investigate the rhetorical, dialectical and

strategic integration of the two found in American political online news magazines, I reconstruct arguments focusing

on the argumentative strategies used by magazine writers to carry out their dualistic role of informers and

commentators. All journalists are expected to inform the public about the event‘s who, where, what, when; but, it is

the opinion article writer who adds commentary regarding the implications of the event, whether it is favorable or

unfavorable, and why. This split in the duty of the journalist to be both reasonable and effective renders these

opinion articles a great venue for my analysis.

To approach this research efficiently, in Chapter 2, I intend to explain the American bipartisan system by

describing the conservative and the liberal political factions respectively and to introduce American news media as a

third party with various political ties. By explaining this general contextual background, I can begin to demonstrate

which parties are involved in the argumentation in question. Ultimately, the context is American political news

magazine opinion articles regarding a specific legal decision by the U.S. Supreme Court. My intention is to depict

the authors of the articles as frontrunners of the political party they represent but also as journalists upholding the

magazine‘s reputation. Therefore, I expect the hybrid role of the authors to be evident in the argumentation within

the articles. To examine such dualistic argumentation, I prefer to use a fitting theoretical approach that combines

both descriptive and normative elements which could correspond to the information-sharing and commentary of

opinion articles. I use the pragma-dialectical theory developed by van Eemeren and Grootendorst (1984, 1992) and

the extended pragma-dialectical theory developed later on by Frans H. van Eemeren (2004).

In Chapter 3, I will discuss my theoretical framework of relevant insights such as the ideal model and the

relevant rules for a critical discussion, as well as strategic maneuvering. I aim to contextualize modern American

political news magazines via their institutional conventions and constraints. Later, I will name and explain the

institutional characteristics of the micro-level context of political discussions within American news magazines such

as the institutional point of the conventionalized communicative activity while taking into account the argumentative

situation. The main theoretical backdrop for research extending from pragma-dialectics will include the

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communicative side to political argumentation, institutional contextualization of political news magazines, analysis of

four case studies in terms of a critical discussion, and finally, rhetorical and dialectical strategies within reactive news

magazine opinion articles on federal legal decisions.

Chapter 4 explains why I chose to focus on the selected online political news magazine opinion articles. I

chose one article from four different online news magazines: TIME and Newsweek which belong to the liberal angle

of American medium in contrast with The National Review and The American Spectator which are understood as

conservative. Each of these articles is an explicit informative commentary regarding a specific legal decision within

the United State Supreme Court. I explain the case facts in detail, public reactions to both the case and the ruling,

and ultimately, the political divide in the majority and dissenting opinions. I chose to examine political reactions to

the federal landmark decision following the U.S. Supreme Court case of Boumediene v. Bush, 553 U.S. 723 (2008).

The case was a writ of habeas corpus submission made in a civilian court of the United States on behalf of Lakhdar

Boumediene, a naturalized citizen of Bosnia and Herzegovina, whom was held in military detention by the U.S. at

the Guantanamo Bay prison in Cuba. The case was consolidated with habeas petition of Al Odah v. United

States and challenged the legality of Boumediene's detention at the United States Naval base in Guantanamo as well

as the constitutionality of the Military Commissions Act (MCA) of 2006. Oral arguments on the combined cases

were heard by the Supreme Court on December 5, 2007. The 5-4 ruling decision in favor of Boumediene et al. was

announced on June 12, 2008 by Justice Anthony Kennedy. For many reasons, I believe this niche of politically-

loaded legal argumentation provides a suitable angle for the analysis of strategic maneuvering (van Eemeren, 2004).

First, there are methodological considerations for choosing a legal case because of argumentation‘s centrality in the

decision making process. I believe it is rather advantageous for this research that the American judicial system allows

public access to all the relevant documents such as the oral arguments of the petitioners and the respondents, the

opinions of the bench, and the amicus curiae briefs. So, in a sense, the argumentative playing field is leveled as the

repertoire of facts is the same for all four journalists in the analysis. In addition, a discussion on a legal case is more

argumentatively refined as appropriate claims and defenses are limited to legal philosophy and the case-specific issues

(i.e. treatment of detainees, constitutionality of Guantanamo Bay, etc.) unlike political discussions which are often

clad with fallacies such as ad hominem, ad baculum and countless other distractive arguments. It is also beneficial

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that comments made by journalists are clear-cut as to whether the decision was favorable or unfavorable; they easily

allow the reader to know if they agree or disagree with the Court. Furthermore, the recent case of Boumediene v Bush

is appropriate for my research on the basis of it being politically-loaded in many ways. Primarily, the petitioners are

individuals testifying their innocence who have been deemed, ―terrorists‖ and ―unlawful enemy combatants‖ by the

very administration they are filing suit against. That is, the entire Executive branch of the U.S Federal Government,

President George W. Bush and his administration. Put simply, the contest was between a terrorist and the

Commander-in-chief post-September 11, 2001 which brought a myriad of media attention.

In Chapters 5 and 6, I will introduce and evaluate four online political opinion articles reacting to the same

landmark court case. The evaluation will include reconstructing the separate arguments using pragma-dialectical

instruments. I plan to reconstruct the relevant reactive argumentation for each magazine and apply van Eemeren‘s

normative criterion. Relying on the facts of the case, I am able to pinpoint elements that have been enhanced, left

out, or diminished regarding the decision. In Chapter 7, I introduce and discuss the three inseparable aspects of

strategic maneuvering; topical choice, audience demand, and presentational devices. (van Eemeren, 2010) In

reviewing reactions to the case via the political argumentation advanced by different magazines, it will be possible to

compare and contrast the data, and to draw out instances of strategic maneuvering that lead to the framing of the

case ruling in a positive, neutral, or negative light. This procedure will provide evidence of strategic maneuvering

associated with political media bias, instances of derailments and successful argumentative moves.

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 CHAPTER 2 – POLITICS, BIPARTISAN MEDIA, AND BIAS

2.1 POLITICAL ARGUMENTATION

I will start by introducing terms and describing contexts that I will frequently refer to. Because my

discussion overlaps into the fields of communication, journalism, and argumentation theory, I see it purposeful to

limit ambiguity in meaning between multiple usages of terms. In a general-to-specific fashion, I will first introduce

political communication as the macro-level context of my research. Dutch argumentation theorist and pragma-

dialectician Frans H. van Eemeren categorizes political communication as a domain of communicative activity type

predominately focused on the communicative activity of deliberation. Other communicative activities include

mediation as in marriage counseling, negotiation as in trade treaties, consultation as in a doctor‘s visit, and

adjudication as in court proceedings. (van Eemeren, 2010)

As the pragma-dialecticians define it, deliberation refers to ―a confrontation, in equal and adequate time of

matched contestants, on a stated proposition, to gain an audience decision.‖ (Van Eemeren, 2010, p. 142)

Therefore, I would simplify this to mean deliberation as the process of decision-making via an argumentative

discussion between two parties before a swayable audience. Pragma-dialecticians would characterize political

argumentation as central to gaining and using power, to collective decision-making for the public good, and to giving

effective voice to shared hopes and fears. David Zarefsky elaborates on the characteristics of political argumentation

in ―Strategic Maneuvering in political argumentation‖ (2008). In the article, he lists the features of political

argumentation. One of the first features is the absence of time limits in political argumentation. In rare instances, like

television debates between presidential candidates, the participants of the discussion are regulated by a mediator who

enforced pre-established time limits. This only halts the discussion within that particular setting of a televised debate.

He also noted that political argumentation lacks a clear terminus, as one cannot be sure the argument is over. Rare

cases exist where disputes of political action can be settled, but more commonly, Zarefsky suggests, political

argumentation stops ―in a manner akin to Kuhn‘s account of paradigm shift.‖ By this, he means that, usually, a

particular ideology isn‘t refuted decisively at one point in time, but rather gradually, people find less and less use for

it and adopt a competing perspective in its place. The third feature of political argumentation is that it is often

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performed before a heterogeneous audience; the population consists of mixed ideologies and perspectives, and in

democratic countries, it is open for all to participate in. Much of political communication and argumentation occurs

among and between political actors but is also most often exposed to criticism from the public and the media.

In the political sphere, decision-making involves political actors, which are individuals who aspire, through

organizational and institutional means, to influence the decision-making process. In Brian McNair‘s Introduction to

Political Communication (2003, p.74), these influential actors are composed of three general entities. The first are

citizens that participate in opinion polls and write letters to political entities and/or news groups; second, the general

media which produces reports, editorials, commentaries, and analyses of political happenings; and third, the political

organizations that promote their party‘s interests via public relations campaigns, adverts, and programs. When I

discuss political communication, I combine both the pragma-dialectical notion of the decision-making procedure as

well as the common participating groups classified by McNair.

In my view, any combination of any of these, or closely related, activities between any of these actors

constitutes a political discussion. Inside the general context of political communication, there is political

argumentation. The nature of the argumentative discussion may be directly related to the decision, such as members

of U.S. congress passing or denying legislation. It could also be indirectly setting the stage for deliberation, like in

presidential election campaign adverts. Simply, I observe that political communication occurs before, during, and

after the actual decision. What I wish to focus on, however, involves political discussions with an evaluative or ex

post facto nature. Setting aside all other forms of political argumentation, I am focusing on the media‘s report,

editorial, and/or commentary on a legal decision made. Now, within the giant realm of the American media, there is

a myriad of platforms for evaluative political discussions. In my research, I will take into account the differences in

multiple online political news magazines and their reports on a federal court case decision in America. In the next

section of the chapter, I consider the role and nature of the American media today as it plays a crucial part in the

world of American politics.

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2.2 THE AMERICAN MEDIA

In America, the media act both as messengers of communication from political entities and as senders of

political messages formulated from within the media. (McNair, 2001, p. 47) Obviously, the role of the media is a

crucial one. It allows the political entities to effectively communicate with the public. Namely, it gives politicians and

members of government a platform to legitimize their words and actions and, in their hopes, have those words and

actions accepted by the public. Ideally, Americans expect transparent and objective information reports from

newspapers, radio stations, television news, and the internet. However, this is not uniformly so nor will it ever be.

Events of political importance, such as political programs, policy statements, electoral appeals, pressure group

campaigns, and even acts of terrorism all have potential for communicative effectiveness to the extent that they are

reported and received by the audience. (McNair, 2001, pp. 74-76)

Of course, it has become apparent that the media do not neutrally report the political environment as it is.

Even though numerous media analyses over the years are not consistent with one another, a solid majority of them

display evidence of political reports loaded with subjectivities and biases. In her Handbook of Political

Communication Research, Lynda Lee Kaid et al. suggest political reality is comprised of three categories; objective

reality that includes events as they occur; subjective reality which encompasses events as they are seen by the actors

involved; and constructed reality, which is critical to shaping political reality. (Kaid et al., 2004, p. 423) The media

are responsible for covering political events, reformulating them, and in turn, constructing an alternative reality to the

situation in question. This centrality of the role played by the media bias in the political process, which is to

interpret objective happenings in the political sphere in such a way to facilitate subjective perceptions in the public

sphere, is of key importance to my research.

2.3 MEDIA BIAS AND POLITICAL BIAS

From this issue, the notions of media bias and political bias emerge and require distinction. Although

separate by definition, in practice, they are often merged into one. Media bias refers to the bias of members of

the mass media in the selection of which stories are reported and how they are reported. The term "media bias"

should imply ubiquitous subjectivity contravening journalism‘s ethical standards as a whole, rather than the

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perspective of a single journalist or article. (Hahn, 1998, p. 29) Depending on the country, and specifically on the

organization, the bias of the media can range greatly in degree and direction. In essence, there has been no over-

arching, or major theory of media bias. Through exploring extensive literature on the matter, it‘s apparent that most

categorize media bias in one of three ways. (D‘Alessio, 2000, p. 135)

The first approach, aptly named gate keeping bias, concerns the selection of stories to be presented to the

public and the omission of stories not to be read, heard, or seen. What is unique to this branch of media bias is the

fact that it is oftentimes unknowable to those outside the media. Although, it is safe to assume that this kind of bias

actually occurs, it is difficult, if not impossible, to know or prove the extent to which it occurs as it is done behind

closed doors. Coverage bias, the second approach, occurs after a story is selected to air. The physical amount of

coverage is measured. This is usually measured in column inches, image size, and headlines for newspapers and

magazines, and length of time in radio and television. News organizations can enhance or diminish the presence of a

story by discussing it more or less than their competitors‘ organizations. To exemplify this, in a utopian society,

equal amounts of coverage will exist during presidential campaigns for each candidate. When deviations from this

pattern occur it is obvious there is coverage bias of some kind. In the context of reactions to a U.S. Supreme Court

decision, coverage bias entails reporting more heavily on one side of the decision than the other.

Less common in newspapers and more common in political magazines, blogs and the like, the third branch

of media bias is called statement bias. This refers to members of the media interjecting their own opinions into the

text of the coverage of an issue. Unlike the other two forms of bias, statement bias is measureable to the degree that a

unit of analysis is explicit, that is, the actual statement is present in the text. D'Alessio considers this to be, ―the

simple, active, declarative sentence.‖ (2000, p. 137) A ‗neutral‘ media event would contain equal numbers of

statements biased in one direction and in the other. An ‗unbiased‘ media event contains no overtly biased statements,

and conversely, one with an uneven amount of such statements would constitute a ‗biased‘ media event. (Hahn,

1998, p. 29) As mentioned, I will examine the argumentative discourse from four separate, politically-affiliated news

sources regarding a bipartisan-split court case decision in America. My discussion of media bias and political bias

serves to prepare for the analysis of the articles. If aware of media bias and political bias, one may more easily

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approach the argumentative discussion evident in American political news magazines. Indeed, it is because of political

bias, whether liberal or conservative, that the chosen articles represent both sides of the bipartisan discussion.

2.4 FOUNDATION OF AMERICAN BIPARTISANSHIP

In the United States, both in media and in academia, politics draws a great deal of attention. The American

political culture is deeply rooted in colonial times and in the American Revolution. The modern political party

system in the United States is a two-party system dominated by the Democratic Party and the Republican Party.

These two parties have won every U.S. presidential election since 1852 and have controlled the United States

Congress since 1856. (Finkelman, 2001, p. 126) Several other third parties, such as the Independent Party, or the

Green Party, from time to time have achieved relatively minor representation at the national and state levels. Among

these two major parties, the Democratic Party generally positions itself as left-of-center and supports an American

liberalism platform, while the Republican Party generally positions itself as right-of-center and supports an American

conservatism platform. Relevant historical articles include the Declaration of Independence (1776), the Constitution

of the United States of America (1787), the Federalist Papers (1788), the Bill of Rights (1791), and Lincoln's

"Gettysburg Address" (1863), to name a few. I find it interesting to mention that in the Federalist Papers number

9 and number 10, the first U.S. Secretary of the Treasury, Alexander Hamilton and fourth President of the

U.S., James Madison, respectively, wrote about the dangers of domestic political factions. In addition, the

first President of the United States, George Washington, was not a member of any political party at the time of his

election or throughout his tenure as President. In his Farewell Address (1796), Washington hoped that political

parties would never be formed, fearing conflict and stagnation. Regardless of the nation‘s forefathers‘ resentment

towards a two-party system, America came to be split by political faction. Discussing the history behind America‘s

political bipartisanship allows for a more concrete understanding of the political parties, of which the authors of the

upcoming articles take side.

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2.5 LIBERAL DEMOCRATS AND CONSERVATIVE REPUBLICANS

Nowadays, American political parties are mainly composed of three overlapping parts: the organization, the

party in the electorate, and the party in government. The first is made up of committees at the local, state, and

national levels. The Republican and Democratic National Committees recruit, train, and fund candidates for

electoral offices, finance polls and political advertising designed to attract voters. The second part consists of people

who repeatedly vote for the party, the electoral base. According to the United States Census Bureau‘s 2010 issue of

the Voting and Registration in the Election of November 2008 report, high proportions of African-Americans,

Jews, low-income union members, city dwellers, and unmarried women tend to vote liberal, or Democrat; whereas,

Republican votes come from high proportions of high income college graduates, married folk, and Protestant

evangelicals. Lastly, the party in government is composed of people elected under the political banner to executive

and legislative offices and party members appointed to government positions. (Edwards, Wattenberg, & Lineberry,

2009, p. 247)

2.6 POLITICAL NEWS MAGAZINES IN AMERICA

For my research, I focus on the factions present within the precise genre of opinion articles on legal

decisions in political news magazines in America. I wish now to discuss the medium in which these opinion articles

occur. I will start by describing American political news magazines. Unlike television and radio, print media is not

vulnerable to many stylistic elements such as lighting, volume, music, sound effects, and advertising. Within print

media, news magazines offer explicit argumentation, whereas newspapers are generally fact-based and strictly

informatory. It is no secret that many news magazines in the U.S. have explicit political affiliations and provide more

evidence of bias in their reporting, or opinion-sharing. The four globally-renowned news sources that I decided to

use for my pragma-dialectical analysis of strategic maneuvering are TIME, Newsweek, National Review, and

American Spectator. The first two are publicly known as more liberally-angled news magazines and the second two

are considered fairly conservative. News magazines are typed, printed, and published usually weekly or monthly, and

are known for their articles on current events. They typically venture further into stories than newspapers or

television news, trying to give the reader more of the context that surrounds important events. (Paletz, 2002, p. 36)

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This contrasts other forms of print media like newspapers that report on just the known facts of the events. News

magazines tend to focus on a specific area of interests like weather, technology, celebrities, music, or politics. Political

news magazines tend to be one-sided and are explicitly biased. Most of American political news magazines represent

some angle of either the liberal or conservative political sentiment.

2.7 INSTITUTIONALIZING POLITICAL OPINION ARTICLES IN NEWS MAGAZINES

I mentioned earlier how David Zarefsky characterized political argumentation. Now, in order to adhere to

the pragma-dialectical perspective of political argumentation, I view the environment relevant to this dissertation‘s

research, that is, opinion articles on legal decisions in American political news magazines, as an institutionalized

context. Generally, institutions are considered formal structures of decision-making, bound by procedural, normative

and conventional rules that define the boundaries of an acceptable discussion. According to Zarefsky,

―institutionalized contexts produce argument fields, subdivisions of the technical sphere of argument, to which one is

admitted by virtue of background, training, and expertise.‖ He then states that there is often a clear distinction

between spectators and participants. Political argumentation is quite different in so far as there is virtually no

restriction on who may participate and it doesn‘t require expert background. Additionally, the discourse associated

with political argumentation is typically unregulated and free-form. Henceforth, it is clear that political

argumentation depends on strategic maneuvering yet contradicts the very essence of an institutionalized context. To

get around this inconsistency, political argumentation must be viewed not as chaotic, random free-verse but as an

actual institutionalized context one with established conventions that define the genre. These conventions and

practices are found recurring throughout many historical situations. Institutionalization stems from this ex post facto

generalization regarding the genre as a whole. (Zarefsky, 2008, p. 317) I will use this perspective to analyze the

opinion articles as institutionalized contexts. At this point, it‘s vital to distinguish between an informal discussion on

political issues among friends or colleagues and a proper, large-scale dispute that engages political entities, societies,

cultures, and/or groups. The latter is, of course, shall be the central theme of this dissertation.

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 CHAPTER 3 – PRAGMA-DIALECTICS AS THEORETICAL INSTRUMENT

3.1 PRAGMA-DIALECTICAL APPROACH

After describing the contexts in which my argumentation occurs, I‘d like to continue to the theoretical

framework I will rely on throughout this paper. The pragma-dialectical approach to argumentation theory was

developed by Frans H. van Eemeren and Rob Grootendorst at the University of Amsterdam. It is used in analyzing

and evaluating argumentation in actual practice. Apart from logical theorists that focus on argument as a product and

communication theorists that consider argument a process, van Eemeren and Grootendorst desired to study

argumentation as both. To do so, they viewed argumentation as a discourse activity, or a complex speech act that

holds specific communicative aims attained through natural language use. I find the pragma-dialectical approach

suitable for this dissertation‘s purpose primarily because it incorporates a normative as well as a descriptive

perspective of argumentation. The theory‘s dialectical aspect stems from critical rationalist insights and formal

dialectics. As for the pragmatic dimension, van Eemeren and Grootendorst combined insights from John L. Austin‘s

speech act theory, H.P. Grice‘s language philosophy, and discourse analysis. These three perspectives also connected

the descriptive component of the theory. (van Eemeren & Grootendorst, 1984, 1992, 2004)

In order to systematically integrate the dimensions of pragmatics and dialectics, the theorists at Amsterdam

relied on four meta-theoretical principles: functionalization, socialization, externalization, and dialectification. In

pragma-dialectics, to functionalize is to treat discourse as an act with a conscious intention or purpose. Socialization

is achieved by extending the speech act perspective to the level of interaction between discussants. Externalizing

entails understanding the propositional and interactional commitments created by the performed speech acts. Lastly,

dialectification is defined as the process of bridging an exchange of speech acts to the ideal model of a critical

discussion. (Van Eemeren & Grootendorst, 2004, pp.52-53)

The ideal model of a critical discussion treats argumentative discourse as a discussion in which,

argumentation is aimed at resolving a difference of opinion through reasonable means. In this model, there are four

separate discussion stages that the participants pass through to arrive at a resolution. The first stage is known as the

confrontation stage; in here, the parties establish that there is, in fact, a difference of opinion. In the opening stage,

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the decision is made to resolve the difference and both procedural and material starting points are explained. The

argumentation stage consists of the participants defending their standpoint by advancing arguments that aim to

counter any objections or casted doubt. Obviously, this is where most of the argumentation takes place. In the end

stage, or concluding stage, the interlocutors evaluate to what degree has the initial dispute been resolved and to

whom it is in favor of. (van Eemeren, 2004, pp. 42-68)

3.2 RULES OF CRITICAL DISCUSSION

In order to correctly carry on through each of the discussion stages, participants must abide by the ten

critical discussion rules stipulated by the pragma-dialecticians. In turn, the ideal model requires application of these

rules to the argumentative discussion. Violations of the discussion rules are said to frustrate the reasonable resolution

of the difference of opinion and they are therefore considered as fallacies. I‘d like to include this brief recapitulation

of the pragma-dialectical approach by listing the rules in the ideal model:

1. Freedom rule - parties must not prevent each other from advancing standpoints or from casting
doubt on standpoints.
2. Burden of proof rule - a party that advances a standpoint is obliged to defend it if asked by the
other party to do so.
3. Standpoint rule - a party‘s attack on a standpoint must relate to the standpoint that has indeed
been advanced by the other party.
4. Relevance rule - a party may defend a standpoint only by advancing argumentation relating to that
standpoint.
5. Unexpressed premise rule - a party may not deny premise that he or she has left implicit or falsely
present something as a premise that has been left unexpressed by the other party.
6. Starting point rule - a party may not falsely present a premise as an accepted starting point nor
deny a premise representing an accepted starting point.
7. Argument scheme rule - a party may not regard a standpoint as conclusively defended if the
defense does not take place by means of an appropriate argumentation scheme that is correctly
applied.

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 8. Validity rule - a party may only use arguments in its argumentation that are logically valid or
capable of being made logically valid by making explicit one or more unexpressed premises.
9. Closure rule - a failed defense of a standpoint must result in the party that put forward the
standpoint retracting it and a conclusive defense of the standpoint must result in the other party
retracting its doubt about the standpoint.
10. Usage rule - a party must not use formulations that are insufficiently clear or confusingly
ambiguous and a party must interpret the other party‘s formulations as carefully and accurately as
possible. (Van Eemeren, 2004, pp. 136-157)

As I stated, when a participant incorrectly applies, or simply breaks one or more of these ten critical

discussion rules, he/she has committed what, in pragma-dialectics, constitutes a fallacy. Pragma-dialecticians view

fallacies in accordance to their own rules; whereas, other theoretical approaches consider fallacies differently. For

instance, in informal logic and rhetoric, a fallacy is usually a use of reason in an argument that results in a

misconception. The standard treatment of fallacies, supported by Hamblin, considers fallacies as an ―argument that

seems valid but in actuality, is not.‖ Often, fallacious arguments are structured with rhetorical patterns capable of

obscuring the logical argument, and in turn, this makes it rather difficult to detect. (Van Eemeren, 2004, pp. 158-

186)

3.3 STRATEGIC MANEUVERING

Recently, within the past ten years, the pragma-dialectical theory of argumentation has integrated aspects of

rhetoric into the analysis of argumentative discussion. (Van Eemeren & Houtlosser, 2002; 2006) In this extension of

pragma-dialectics, parties involved in the resolution of a difference of opinion ―maneuver strategically‖ to realize

both their rhetorical aims of effectiveness and their dialectical intentions of reasonableness. Simply, discussants strive

to be persuasive by having the opposing side accepts their standpoint while, at the same time, observe the standards

set in the rules in the ideal model. Rhetorical discourses tend to honor effectiveness over reasonableness, and vice

versa in dialectical practices.

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 Discussants can balance the two ideals of reasonableness and effectiveness via three analytical aspects;

topical potential, audience demand, and presentational devices. In the first aspect, topical potential, the arguer makes

an opportune selection from all available (and relevant) topics. The possible choices come from the repertoire of

options for making each argumentative move. For audience demand, arguer must try to adapt to a particular audience

by taking advantage of the pertinent requirements for the audience to accept the position. And lastly, presentational

devices are used to make argumentative moves in the most strategic manner possible; while in pursuit of reason and

effect, the arguer takes into account suitable stylistic devices for his/her argument. (van Eemeren, 2010, pp. 263-

274)

3.4 APPLICATION OF PRAGMA-DIALECTICS: OPINION ARTICLES ON BOUMEDIENE

I would like to describe the genre of the four selected articles as informative commentaries, since the

journalists both report case facts and comment on the 5-4 ruling decision in favor of Lakhdar Boumediene in the

Boumediene v Bush Administration Supreme Court case. When referring to these articles from a pragma-dialectical

perspective, one must consider what part of the discussion is taking place. In order to figure this out, it‘s vital to

determine if there is a difference of opinion. I will go further into the case background and decision later on, after I

show that the case is boldly divided along party lines, between Republicans and Democrats. Those in favor of the

Bush administration are considered the right wingers and those in favor of Boumediene et al. are left wingers.

Therefore, it is rather expected for the media to be divided on the case along the same lines. Simply, I divide the

reactions on the basis of positive versus negative standpoints pertaining to the agreement with the Court‘s decision.

The argumentative pre-conditions, both specifically among these four articles and generally across the

media, include conservative writers claiming that the decision was unfavorable and liberal writers claiming the

opposite. Although this constitutes a clear difference of opinion outside the articles, I want to reconstruct the

arguments within the articles as complete discussion that can be articulated in four stages. During my analysis, I will

break down the articles corresponding to the four stages of a critical discussion.

American political news magazines offer the public context-rich coverage of all things governmental; stories

on political figures, events and legal decisions. The discussions are hybrid in that they present to the audience what

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happened through facts of the issue but also wish to frame the story with their opinionated commentary. Basically,

the authors of the magazine articles are briefing the audience on the federal court case decision in a manner that

highlights their own political preference and opinion.

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 CHAPTER 4 – BOUMEDIENE V BUSH ADMINISTRATION

4.1 THE HIGHEST COURT IN THE LAND

In the American legal system, the Supreme Court of the United States (SCOTUS) holds the highest

legislative power in the government; namely, the Court is responsible for the ultimate judicial review. When a case

reaches this level of adjudication, its facts are no longer the issues at hand. Instead, the nine federally-appointed

justices hear oral arguments from the petitioners and the respondents of the case who depend on relevant legislation

and the interpretation within. The SCOTUS is composed of one chief justice and eight associate justices, all

individually appointed by the President of the United States. The Supreme Court justices are each explicitly

politically affiliated with either the Republican Party or the Democratic Party. Usually, the appointing President

selects justices of his own party. (MacMilland Reference, 2008)

This judicial selection process gives rise to potential inconsistencies within the argumentation put forth by

each of the justices in their opinions of the case. Politicians are expected to use political argumentation in their

speeches and campaigns in order to send messages to the public and to gain public support, while legal

argumentation is found in the context of procedures and it aims to absolve legal discrepancies. Ideally, the role of the

judge is that of one impartial adjudicator with limited or no bias, but, since the adjudicators themselves are, in a

sense, branded under a political party, one cannot help but wonder if political bias comes into argumentative play

during the opinions of the case.

In her pragma-dialectical analysis of the role of the judge in legal proceedings, Eveline Feteris describes the

adjudicator‘s responsibility as ―promoting an impartial and final resolution of the dispute in accordance with general

standards of rationality.‖ (Feteris, 2009) These general standards of rationality aim to resolve legal disputes and to

apply the administration of justice in accordance with the Rule of Law. She has specified the way in which the judge

promotes the resolution of the legal dispute in accordance with the conditions of a rational discussion. Inspired by

the pragma-dialectical developments in the legal context, I wish to show that even if certain conditions with respect

to the attitude of the participants in legal proceedings are fulfilled, the justices in the Supreme Court, along with the

decision to be made, are still vulnerable to the influence of political bias in their ruling opinions.

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4.2 PUBLIC REACTIONS TO BOUMEDIENE

Before analyzing the opinions of both the majority and the dissenting, it will be rewarding to understand the

political context in the eyes of the American public. Shortly after the 9/11 attacks on the World Trade Center in

New York City, NY, the Bush administration began a massive military effort to locate, detain, and interrogate

anyone believed to be associated with Al-Qaeda and Taliban members. Lakhdar Boumediene, an Algerian-born

Bosnian human rights activist, was accused by the U.S. government of conspiring to attack the U.S. embassy in

Sarajevo, Bosnia. After being captured in October 2001, Boumediene was supported by his family and friends who

initiated habeas corpus writs. Their legal action took three years to process upwards through the court system. In

2002, the Bush administration asserted that Guantanamo is not American soil, and detainees held there are not

subject to U.S. law and have no rights under the U.S. Constitution nor are they entitled to protection under

the United States Justice System. The first acknowledgment of habeas corpus was in 2004 and corresponded to the

case of Rasul v. Bush in which the U.S. Supreme Court nullified the argument that Guantanamo Bay Naval base is

beyond the reach of the U.S. law.

These are the facts surrounding the background of the case. Immediately after the case reached the

Supreme Court, many members of the American media implied the Bush administration ordered the capture of

Boumediene in order to improve public support for the war on terror. It had been speculated that the intended

message the Bush administration wanted to deliver was: ―terrorists exist, they are threat to national security, and the

U.S. is more than capable to catch them and keep Americans safe.‖ When Boumediene et al. are labeled ‗enemy

combatants‘ and ‗terrorists,‘ the public can‘t help but recognize a national security threat and support the

government‘s motive. As the case passed through the lower levels of courts, the Bush administration was supported

by the legal system. Not until the case reached the High Court did the petitioners avail.

4.3 PUBLIC REACTIONS TO RULING

This landmark ruling, like most of the same level of controversy, was received with passionate responses

from both sides of the political divide. As it became evident in the American media, key politicians from both sides,

along with media figures with deep political ties, voiced their opinions regarding the 5-4 ruling in favor of

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Boumediene et al. The ruling itself was, at first, evenly divided; four liberal judges ruling in favor of Boumediene and

four against. Interestingly, the pivotal vote came from one of the conservative justices, Anthony Kennedy. Receptions

to the ruling were just as split on television and in newspaper as they were in the courtroom. What I wish to show is

the great political dichotomy on such a high-priority legal decision based on precedent and that will serve into the

future as a newly-established precedent.

Additionally, the case was heard during the intense political turbulence of elections only months away. Not

only was it presidential campaign season, but it was one of the most grueling campaigns in American political

history. The Democratic candidate at the time was Senator Barack Hussein Obama from Illinois, who pledged to

shut down Guantanamo Bay if elected. Obama, also a former senior lecturer at the University of Chicago Law

School, said in a campaign speech in Wayne, PA:

―[The] principle of habeas corpus that a state can't just hold you for any reason without
charging you and without giving you any kind of due process -- that's the essence of who we are. I
mean, you remember during the Nuremberg trials, part of what made us different was even after these
Nazis had performed atrocities that no one had ever seen before, we still gave them a day in court and
that taught the entire world about who we are but also the basic principles of rule of law. Now the
Supreme Court upheld that principle yesterday… John McCain thinks the Supreme Court was wrong, I
think the Supreme Court was right.‖

On the other side of the election ballot, was Republic Senator John McCain from Arizona. Below is an excerpt from

a town hall meeting in New Jersey by McCain.

―The United States Supreme Court yesterday rendered a decision which I think is one of the
worst decisions in the history of this country. Sen. Graham and Sen. Lieberman and I had worked very
hard to make sure that we didn't torture any prisoners that we didn't mistreat them that we abided by
the Geneva Conventions, which applies to all prisoners. But we also made it perfectly clear, and I won't
go through all the legislation we passed, and the prohibition against torture, but we made it very clear
that these are enemy combatants, these are people who are not citizens, they do not and never have been
given the rights that citizens of this country have. And my friends there are some bad people down
there. There are some bad people. So now what are we going to do. We are now going to have the
courts flooded with so-called, quote, Habeas Corpus suits against the government, whether it be about

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 the diet, whether it be about the reading material. And we are going to be bollixed up in a way that is
terribly unfortunate, because we need to go ahead and adjudicate these cases. By the way, 30 of the
people who have already been released from Guantanamo Bay have already tried to attack America
again, one of them just a couple weeks ago, a suicide bomber in Iraq. Our first obligation is the safety
and security of this nation, and the men and women who defend it. This decision will harm our ability
to do that.‖

The Fox News channel, known for a strong conservative lean, constantly aired political pundits such as Bill

O‘Reilly and Laura Ingraham in uproar with the Supreme Court‘s decision. Ingraham stated on her show, in

reference to the dissenting opinion written by Justice Antonin Scalia, that it ―was one of the most powerful things I

have ever read.‖ Conservative commentator Ellis Washington criticized the ruling, asserting that it "wantonly

overruled the will of the people and Congress to suspend the habeas corpus rights of this dangerous and irredeemable

class of criminal defendants."

Well-known liberals in television, like Bill Maher, and liberal legal theorist Ronald Dworkin disagreed with

conservative criticism and praised the Court's decision, advocating that it was "a great victory.‖ These examples of

the public reception of the ruling serve the purpose of demonstrating the clear polarized spectrum. What interested

me is that despite the two obvious political sides to the case in the reception and in the ruling itself, one of the

conservative justices ruled in favor of the liberal side of the case.

In many U.S. Supreme Court cases, the differences of opinion are often composed of a bipartisan divide;

that is, a conservative view against a liberal view. The recent controversial case of Lakhdar Boumediene v. the Bush

Administration is a clear case of such a divide among the justices, politicians, the media, and in turn, the public.

Now, I wish to explain before analyzing the media‘s portrayal of the events are the competing arguments put forth by

two of the conservative justices. Both conservatives, Justice Antonin Scalia and Justice Anthony Kennedy, were

appointed by Republican President Ronald Reagan in 1986 and 1988, respectively. Despite similar appointments

and political affiliation, the two justices opposed one another on the ruling in the Boumediene v Bush case; Antonin

joined the dissenting opinion in favor of the Bush administration, and Kennedy lead the majority opinion in favor of

Boumediene.

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4.4 SUMMARY OF MAJORITY OPINION

Justice Kennedy's majority opinion reviewed the history of habeas corpus in England from its beginnings in

the clause of due process in the Magna Carta during the 13th through 19th centuries. Following, the majority surveyed

American historical legal philosophy on the writ from 1789 until post-World War II. In doing so, they concentrated

on the application of habeas corpus to aliens and territories outside of the borders of the United States that still fall

under U.S. control, comparing these areas to the Channel Islands, where the writ did apply. While noting that habeas

corpus did not apply in Scotland, a country under English control, the Court distinguished that fact by stating that

Scotland kept its unique system of laws even after the 1707 union with England. The Court turned to Ireland for a

more agreeable historical example, pointing out that while it was nominally a sovereign country in the 18 th century,

English habeas corpus review did apply there since Ireland was under de facto English control and shared the English

legal system. This is a crucial interpretation to the case as it enables the application of the habeas corpus to extend to

Guantanamo Bay. Using a more agreeable example, the Court successfully compares the historical precedent to the

case of Boumediene et al.

The SCOTUS received twenty six amicus curiae briefs on the case. Some of these were written strictly on

the history and application of Habeas Corpus in England, Scotland, Hanover, Ireland, Canada, British-controlled

territories, India, and the United States. In prominent cases such as this one, amici curiae are generally non-profit

legal advocacy organizations with sizable legal budgets. Common organizations the American Civil Liberties Union

(ACLU), the Landmark Legal Foundation, the Electronic Frontier Foundation, the American Center for Law and

Justice or the National Organization for the Reform of Marijuana Laws (NORML) frequently submit such briefs to

advocate for or against a particular legal change or interpretation. Four amicus briefs were filed in support of

the Bush Administration, and the remaining twenty two were filed in support of the petitioners, Boumediene and Al

Odah. Amicus briefs on behalf of the respondents were written by legal justice and defense foundations only. Those

written on behalf of the petitioners; however, were much more diverse and encompassing. For the petitioners, amicus

briefs were submitted by European parliamentarians, international law scholars, human rights advocacy groups, U.S.

senators, former federal judges, professors, Israeli Military Law specialists, historians, NGO coalitions, retired

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military officers, the American Bar Association, and former diplomats. Later on, in the analysis of the dissenting

opinion, I mention one of the undesirable consequences of the ruling described by Justice Scalia. In it, Scalia implies

that the Federal Courts have no authority on the issue of national security. The diversity of amici curiae in support

of Boumediene seemed to compose a wider field of expertise than that of strictly justice and defense foundation.

Anthony Kennedy was joined in his opinion by fellow associate justices David Souter, Ruth Bader

Ginsburg, Stephen Breyer, and John P. Stevens. This majority held the argument that the constitutionally guaranteed

right of habeas corpus review, in fact, applies to persons held in the U.S. Naval base in Guantanamo Bay, Cuba and

to persons designated as enemy combatants on that territory. ―We hold these petitioners do have the habeas corpus

privilege. Congress has enacted a statute, the Detainee Treatment Act of 2005 (DTA), 119 Stat. 2739, that provides

certain procedures for review of the detainees‘ status. We hold that those procedures are not an adequate and

effective substitute for habeas corpus. Therefore, §7 of the Military Commissions Act of 2006 (MCA), 28 U. S. C.

A. §2241(e) (Supp. 2007), operates as an unconstitutional suspension of the writ.‖ The United States Military

Commissions Act of 2006, also known as HR-6166, was another Act of Congress signed by Republican President

George W. Bush on October 17, 2006. It was drafted after the Supreme Court's decision on Hamdan v.

Rumsfeld, and its stated purpose was "to authorize trial by military commission for violations of the law of war, and

for other purposes." Already, from the opinion and proper knowledge of the case and related legislation, it is clear

where the bias begins. The political climate of this particular case in the legal arena is exceptionally high. Not only is

the Bush administration involved in the case as a respondent arguing against someone labeled, an ‗enemy combatant,‘

but also as an advocate of the congressional process that passed the main legislations in question.

Prior to the ruling, the argumentative discussion adhered to the conventional legal procedures; the

heterogeneous party of justices presided over the competing arguments taking place in the mixed discussion between

the petitioners and respondents. Afterwards, in the majority opinion ruling, it‘s possible to identify a separate

difference of opinion between the ruling judiciary and the respondents in regards to the difference of opinion

concerning the MCA as an adequate substitute for the habeas corpus writ. Obviously, the argumentation put forth by

Kennedy and the concurring associate justices in the opinion is no way politically articulated; it is based off of the

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legal interpretation and the disagreement with the MCA legislation as is. What is interesting to understand is that

despite his political accordance, Kennedy is supporting the liberal view of the case, in favor of Boumediene.

Justice Kennedy goes on to explain in the opinion, ―If Congress intends to suspend the right, an adequate

substitute for the habeas corpus must offer the prisoner a meaningful opportunity to demonstrate that they are held

pursuant to an erroneous application and/or interpretation of relevant law, and the reviewing decision-making must

have some ability to correct errors, to assess the sufficiency of the government's evidence, and to consider relevant

exculpating evidence. The court found that the petitioners had met their burden of establishing that the Act of 2005

failed to provide an adequate substitute for habeas corpus. In other words, Boumediene et al. had endured the lack of

such a habeas corpus substitute in the establishment of the Detainee Treatment Act, which amended 28 U. S. C.

§2241 to provide that ―no court, justice, or judge shall have jurisdiction to consider . . . an application for . . . habeas

corpus filed by or … on behalf of an alien detained . . . at Guantanamo,‖ and gave the D. C. Circuit ―exclusive‖

jurisdiction to review CSRT decisions. The majority opinion did not judge ―whether the CSRTs, as currently

constituted, satisfy due process standards, we agree with petitioners that, even when all the parties involved in this

process act with diligence and in good faith, there is considerable risk of error in the tribunal‘s findings of fact. This

is a risk inherent in any process that, in the words of the former Chief Judge of the Court of Appeals, is ―closed and

accusatorial.‖ See Bismullah III, 514 F. 3d, at 1296. And given that the consequence of error may be detention of

persons for the duration of hostilities that may last a generation or more, this is a risk too significant to ignore. Now,

as some may interpret this more of a liberal concern, I would have to agree. But, a liberal concern such as the

awareness of the magnitude of the error in detaining the innocent is one of humane essence. If the release of such an

innocent would benefit a political party or institution, then the concern would suffer from political bias. But, the

benefit involved is first and foremost received by the released.

The Detainee Treatment Act, sponsored by Republican Senator John McCain, who himself had been a

former Prisoner of War tortured in enemy custody, explicitly states that all captives held by the United States of

America are protected against torture. Now, as noble as this may sound to a properly detained enemy combatant, I‘ve

understood this sort of claim to represent the supporters and creators of the DTA in a positive light. Yet, the aim of

this kind of explicit statement is to ensure the government is not taking part in cruel and unusual punishment, which

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is a constitutional duty. Years later, it is clear and with all of the facts present, that torture, often referred to as

―alternative interrogation methods,‖ was in use via water boarding, not to mention the unlawful detentions involved

in the case at hand. Subsequent detainees were prohibited from submitting habeas corpus writs and those already in

the system remained in the system. To analyze the degree of political motive involved in these decisions and legal

maneuvers would require a much more extensive analysis of combined history, legislation and political statements.

But, to the skeptical American public, it cannot avoid being noticed that such legislation would, in fact, support the

Bush administration‘s efforts in the invasion.

The majority opinion rejected the government's argument comparing the habeas corpus restriction under

the MCA to those affected by the Antiterrorism and Effective Death Penalty Act of 1996, which were ruled

constitutional after a suspension clause challenge. The Court explained the restrictions of AEDPA on habeas review

were not a complete suspension on habeas corpus, but simply procedural limitations, such as limiting the number of

successive habeas petitions a prisoner can file, or mandating a one-year time limit for the filing of federal habeas

review that begins when the prisoner's judgment and sentence become final. Here, the government‘s argument lessens

the severity of such a suspension on habeas corpus to a procedural limitation, which had ground in the AEDPA, but

since the severity is not equivalent, the Court disagreed. By alluding to the AEDPA, the Bush administration

reinforced the point of countering terrorism, enhancing strategic presence to the issue of national security, and

lessening the presence of the issue of unlawful detention. Kennedy and his associates believed the comparison to

AEDPA to be misplaced in that the limitations on habeas review stemmed from cases that had reached trial, whereas

the cases involving MCA had not been to trial yet and, therefore, habeas review would be appropriate.

The ruling also concluded that those detained aren‘t required to exhaust review procedures in the court of

appeals in order to file for habeas corpus actions in the district court. The majority distinguished between de jure

and de facto sovereignty. The former kind concerns law and legislation, whereas, the latter kind of sovereignty

concerns fact. This is extremely interesting as it is a key argument in contrast to the respondents‘ idea of limiting

rights on the basis that Gitmo is not American soil on paper, yet, those in charge are running the base as it were

American soil. The Court found that the United States had in effect de facto sovereignty over Guantanamo.

Distinguishing Guantanamo base from historical precedents, the finding allowed the court to conclude that

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Constitutional protections of habeas corpus run to that to U.S. Naval base at Guantanamo Bay, Cuba. Although, the

decision struck down section 7 of the MCA, the remainder of the MCA and the DTA was left intact. In the majority

ruling, Justice Kennedy described section 7 of the Military Commissions Act as "not adequate".

Kennedy also stated, "to hold that the political branches may switch the constitution on or off at will,

would lead to a regime in which they, not this court, 'say what the law is'.‖ I believe in this statement, the legal

philosophy that steered the majority opinion justices to the 5-4 ruling is epitomized. The core American values of

impartiality and adherence to checks and balances echoes loudly in the quote.

So far, I‘ve described the political climate of the Supreme Court before the case, in the media and the

public, and one side of the ruling. I‘ve analyzed the majority opinion joined by all four liberal justices and

conservative justice, Anthony Kennedy. The decision was also supported by twenty-two out of twenty-six amicus

curiae briefs. A nation eager for justice after enduring multiple terrorist attacks, America was in diplomatic turmoil

and the whole world was watching. This case split the nation right down the political aisle. The legal philosophy that

guided the majority was, in my opinion, more in line with a proper courtroom role. This is due to a more prominent

adherence to the legal philosophy behind the U.S. Constitution in so far as a single branch has no authority to allow

or withhold rights for political convenience. In the following, I wish to contrast the majority opinion with the

dissenting opinion on the basis of legal philosophy. I am building a case for the claim that in such a clear-cut

political divide, the political argumentation in media reports can suffer from political bias despite the impartial role

of the media.

4.5 SUMMARY OF DISSENTING OPINION

Justice Antonin Scalia's dissent was joined by Chief Justice John G. Roberts and Justices Samuel Alito and

Clarence Thomas. Justice Scalia argued that "the procedures prescribed by Congress in the Detainee Treatment Act

provide the essential protections that habeas corpus guarantees; there has thus been no suspension of the writ, and no

basis exists for judicial intervention beyond what the Act allows." The commission of terrorist acts by former

prisoners at Guantanamo Bay after their release "illustrates the incredible difficulty of assessing who is and who is

not an enemy combatant in a foreign theater of operations where the environment does not lend itself to rigorous

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evidence collection." The noble intention of protecting American citizens from the ‗commission of terrorist acts‘

grants presence to the issue of national security and ever since 9/11, such issue is of utmost priority. Here, the

dissenting opinion, especially Scalia, is further enhancing the presence of terrorism when the base of the case at hand

deals with constitutional rights of habeas corpus, which aims to remedy unlawful detentions. I interpreted this

statement as a possible implication that the ‗enemy combatants,‘ when released, will commit terrorist acts. In the next

excerpt of Scalia‘s dissent, a partial fallacy ad consequentiam can be seen. Justice Scalia argued that a consequence of

the Court's majority decision will be that "how to handle enemy prisoners in this war will ultimately lie with the

branch [the judiciary] that knows least about the national security concerns that the subject entails."

Scalia continues in his dissent that, a conflict between the MCA and the Suspension Clause "arises only if

the Suspension Clause preserves the privilege of the writ for aliens held by the United States military as enemy

combatants at the base in Guantanamo Bay, located within the sovereign territory of Cuba." The suspension clause

has been read in two crucially different ways. We can take it to declare, as Scalia did, that the United States of

America should never deny any detainee the rights he would have had if he/she had lived in England or in America

during 1789, except in rebellions or invasions. The other way we can read it is as a constitutional principle as

follows: except in those cases, the government must allow anyone it imprisons the right to challenge his

imprisonment in court.

Justice Scalia added that the Court's majority "admits that it cannot determine whether the writ historically

extended to aliens held abroad, and it concedes (necessarily) that Guantanamo Bay lies outside the sovereign territory

of the United States." Referring to Johnson v. Eisentrager, in which the Court concluded that American courts had

no jurisdiction over German war criminals held in a U.S.-administered German prison, Justice Scalia indicated that

"thus held—held beyond any doubt—that the Constitution does not ensure habeas for aliens held by the United

States in areas over which our Government is not sovereign." The majority combats this difference of opinion via the

conclusion that the U.S. Naval base in Guantanamo Bay, Cuba is operated by U.S. authorities in the manner of de

facto jurisdiction.

According to Justice Scalia, the Court's majority "analysis produces a crazy result: Whereas those convicted

and sentenced to death for war crimes are without judicial remedy, all enemy combatants detained during a war, at

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least insofar as they are confined in an area away from the battlefield over which the United States exercises 'absolute

and indefinite' control, may seek a writ of habeas corpus in federal court." Although, the facts of the case are not to

be discussed at this judiciary level, the decision argued by Scalia directly cauterizes any chance of justice for those

unlawfully detained.

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 CHAPTER 5 – RECONSTRUCTING ARGUMENTS FROM OPINIONS

5.1 UNITS OF ANALYSIS

In this chapter, I intend to analyze the actual pieces of selected discourse with regards to the pragma-

dialectical notions of a critical discussion and strategic maneuvering. I selected four popular American political news

magazines, two to represent each of the two major political parties. For the liberal side, I chose articles from both

TIME and Newsweek. TIME is the world's largest weekly news magazine, and has a domestic audience of 20

million and a global audience of 25 million. In one report regarding the issue of media objectivity, the managing

editor of TIME magazine, Richard Stengel, dismissed the need for objectivity altogether, saying, ―I have felt that we

have to actually say, ‗We have a point of view about something and we feel strongly about it, we just have to be

assertive about it and say it positively.‖ This point of view Stengel refers to is akin to that of most liberal audiences

and the magazine is often scrutinized by Republicans for being too liberal and unfair. Newsweek is the second most

popular news magazine in the U.S., second to TIME magazine. A 2004 study by Tim Groseclose and Jeff Milyo

asserted that Newsweek, along with a number of other mainstream news outlets, exhibited a "liberal

bias." Newsweek's Washington Bureau Chief and later Assistant Managing Editor Evan Thomas variously

acknowledged the charge saying, "I think Newsweek is a little liberal," and "there is a liberal bias at Newsweek, the

magazine I work for."

For the conservative side, I chose articles from National Review and American Spectator. The National

Review (NR) is a biweekly magazine founded by the late author William F. Buckley, Jr. in 1955 and based in New

York City. It describes itself as "America's most widely read and influential magazine and web site

for conservative news, commentary, and opinion." The magazine's current editor is Rich Lowry. Many of the

magazine's commentators are affiliated with think-tanks such as the Heritage Foundation and American Enterprise

Institute. In the online and paper edition, prominent conservative guest authors have included Newt Gingrich, the

58th Speaker of the United States House of Representatives from 1995 to 1999;

Mitt Romney, the 70th governor of Massachusetts; and 2010 Republican nominee for Vice President of the United

States, Sarah Palin. Lastly, American Spectator is a conservative U.S. monthly magazine covering news and politics,

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edited by R. Emmett Tyrrell Jr. and published by the non-profit American Spectator Foundation. Although it is the

least popular of the four, American Spectator is considered right-wing and their conservatism is rather apparent in

the article to follow.

5.2 METHOD OF ANALYSIS

For each of the opinion articles, I will depend on the analytical conventions founded by van Eemeren and

Grootendorst in their pragma-dialectical approach to argumentation theory. In my analysis, I hold each of the four

separate opinions, or articles, as complete argumentative discussions themselves that are able to be reconstructed in

terms of the four discussion stages: confrontation, opening, argumentation, and conclusion. (van Eemeren, 2002, p.

25) Within these particular cases, the confrontation stage consists of the journalists establishing that they have a

difference of opinion regarding the Supreme Court‘s decision in Boumediene. As a non-mixed difference of opinion,

this simply means that the journalist‘s standpoint is not yet accepted by the American public and is met with doubt

or criticism. In my reconstruction, the audience is represented as a portion of the American public which has not yet

decided if the outcome of the case is favorable or unfavorable. Therefore, we can say that the American public casts

doubt on each of the journalist‘s main standpoints, and the argumentation within the articles are a means for the

journalist to overcome the doubt and have the audience accept their initial standpoint.

In the opening stage the journalists decide to try to resolve the difference of opinion. They assign the roles

of protagonist and antagonist to themselves and the American public, respectively. Implicitly agreed upon by the very

nature of an online opinion article for a political news magazine, the rules for the discussion are relatively free-form

in comparison to perhaps, a newspaper or radio news broadcast. Starting points are more explicitly stated in each of

the articles. In the argumentation stage, the journalist defends his standpoint by putting forward arguments to

remove the American public‘s doubts. As these are non-mixed differences of opinion, there is no relevant criticism to

take into account. Lastly, the concluding stage consists of the journalists assessing the extent to which the difference

of opinion has been resolved and in whose favor. Being a non-mixed difference of opinion, the resolution process is

not as explicit as it would be if each individual reader of the article could accept or deny the standpoint. It would be

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rather counterintuitive for the journalist to withdraw his standpoint in his own article. And, the audience‘s level of

doubt or not cannot be accounted for properly.

5.3 A PRAGMA-DIALECTICAL RECONSTRUCTION

The next four sections include the pragma-dialectical reconstructions for each of the selected articles. The

goal of the argumentation analysis in pragma-dialectics is to reconstruct the process of resolving a difference of

opinion occurring in an argumentative text. This entails that argumentative reality is analyzed systematically with

regards to the idealized model of a critical discussion. That is, all components in the discourse or text that are in any

way relevant to the resolution process are taken into account in the reconstruction; and all those that are irrelevant to

this concern are left out. In this way, my analytic reconstructions are actually schemes of the deeper, underlying

argumentation structure relevant to the process of convincing the American public to adopt the same standpoint

offered by the journalist. In practice, however, argumentative text or discourse often corresponds partially with the

ideal model previously described. In my case, it is evident that only one of the parties expresses its view, so much of

discussion will remain implicit. My analyses of the journalists‘ argumentative texts must examine to what extent the

discourse can be reconstructed as such a critical discussion. What makes the four separate cases distinguishable from

most argumentative discussions is that they are also, by nature of a news magazine, an informative discussion. The

role of the journalists, here, is to convey information but in an agreeable fashion to their respective political

affiliation held by the magazine. According to van Eemeren et al, these hybrid discussions of argumentative and

informative elements can be recognized as argumentative discussions. (2002, van Eemeren, p. 25) Vital elements of

each of the separate discussion stages may not be present for the resolution of the difference of opinion. The

discussion may also contain extras such as expressions of sarcasm, jokes, and anecdotes that, without directly

contributing to the resolution, help the discussion progress. In these non-mixed differences of opinion, there is only

just one party who is presenting a case. The antagonist simply asks questions and does not adopt a standpoint. The

nature of these cases is also different in so far as that the audience is implicit, as well. The raised doubt and critical

questions are not explicitly being asked, but assumed by the journalist to be of their curiosity. The journalist, more

or less, assumes which questions are being asked by the public and must be answered in order to satisfy the

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audience‘s informatory needs. One of the practical complications that are found in the text is that the article takes

the form of a monologue, or a one way dialogue. Although the audience is not actually present in the discussion to

ask questions or explicitly raise doubt to the journalist‘s standpoints, the argumentation still maintains the goal of

convincing potential critics.

In each of my reconstructions, I left out material irrelevant to the standpoints presented. For some

standpoints or sub-standpoints, I included the direct quote from the text. I found this necessary for some of the

arguments were ad verecundiam, or argument from authority, as the journalists quoted the Supreme Court justices‘

majority and/or dissenting opinion and experts in the fields of constitutional law, foreign policy, or defense as

support for their standpoint(s).

5.4 Argument Reconstruction of American Spectator Article

John Tabin posted his opinion article, sarcastically entitled ―Lord Kennedy,‖ within twenty-four hours of the

Supreme Court‘s announced ruling on Boumediene v Bush. Now, I will evaluate the article in terms of a critical

discussion. For the confrontation stage, the argumentative situation is already implicitly prepared by the very nature

of an opinion article. The reactive purpose of this opinion article stems from the mentioned legal decision being

evaluated by the journalist who then shares their opinion is with readers under the intention of the audience adopting

it. Tabin explicitly expresses his main standpoint (see reconstruction below) in the first sentence, ―As the swing vote

on a polarized United States Supreme Court, Justice Anthony Kennedy is among the most powerful men in the

country.‖ In it, Tabin asserts that the role of the swing vote affords Kennedy higher judicial power than the rest of

the justices. So, it is already assumed that there is an unaccepted standpoint, thus a difference of opinion exists

between the journalist and the doubtful American public. Also for the opening stage, like many cases in

argumentative reality, most elements are left implicit. The actual roles of journalist and reader provide the parties

their common ground (i.e. discussion format of an online opinion article, background knowledge of the specific case,

American values, etc.). Additionally, the opening stage also corresponds to the fact that Tabin, himself, is associated

with a conservative news source that should not contradict the political loyalties. Overall, it is obvious that

conservative news sources couldn‘t be happy with the legal ruling, but it is in the next stage that parties point out

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what exactly about the ruling is unfavorable. The entire article itself is Tabin‘s rhetorically-enhanced, dialectical

effort to have the American public accept his standpoint. Below is the schematic reconstruction of Tabin‘s article

which highlights only the deep argumentation structure.

(1’) (The legal ruling in the case of Boumediene v Bush was not a favorable one.)

1.1 Justice Anthony Kennedy intends on expanding the power of the federal judiciary
1.1.1a Justice Scalia points out that, ‘What drives today's decision is neither the
meaning of the Suspension Clause, nor the principles of our precedents, but
rather an inflated notion of judicial supremacy.’
1.1.1b “Justice Antonin Scalia argues fairly persuasively in his dissent that it this is
an incorrect reading of the precedent and history surrounding habeas
corpus.”
(1.1.1’) If Justice Scalia says that either this decision and/or elements regarding the
decision are unfavorable, then they are.
1.1.2 The MCA was passed after Hamdan v Rumsfeld, in which four out of the five
justices in the Boumediene majority agreed, “Nothing prevents the President
from returning to Congress to seek the authority [for trial by military
commission] he believes necessary.”

1.1.3 Justice Roberts argues, ‘One cannot help but think...that this decision is not
really about the detainees at all, but about control of federal policy
regarding enemy combatants.’

1.1.4 The Kennedy-led majority gives detainees a mechanism to challenge their

detention.
1.1.4.1 “The MCA and the DTA already provide such a mechanism...”
1.1.4.1.1 “The whole purpose of these laws was to avoid habeas
petitions in open court. They established the
Combatant Status Review Tribunal for detainees to
appeal to, and gave the DC Circuit Court jurisdiction
over appeals from the CSRT.”

Lastly, the concluding stage of Tabin‘s article begins rather explicitly, summed up in the last sentence, ―Anthony

Kennedy is Lord of the Judiciary and nothing can stop him when he‘s intent on expanding his fiefdom.‖ Although this is,

more or less, a repetition of his opening remark, it serves as a reinforcement in the minds of the readers when they finish

reading the article. Obviously, a proper resolution to a difference of opinion entails the antagonist accepting the

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conclusion, but in the institutionalized context of opinion articles on legal discussion in political news magazines, a well-

defined terminus is lacking.

5.5 Argument Reconstruction of the TIME Article

Adam Zagorin posted his opinion article, ―What the Gitmo Ruling Means,‖ on June 12, 2008, the same day

of the Supreme Court‘s announced ruling on Boumediene v Bush. I will therefore evaluate the article in terms of a

critical discussion. The confrontation stage is, again, already implicitly prepared by the very nature of an opinion

article as discussed in the prior analysis. Zagorin explicitly expresses his main standpoint (see reconstruction below)

in the first sentence, ―The Supreme Court's 5-4 decision Thursday asserting … marks a historic rebalancing of

powers between the Executive, Congress and the judiciary — one that many critics believe is a long overdue

correction after years of Executive overreach by the Bush Administration.‖ Zagorin immediately asserts that, in

tandem with the descriptive title, the decision is indeed favorable, and even more so a well-founded correction. We

can assume that there is the same unaccepted standpoint scenario as in the prior article, thus a difference of opinion

between the journalist and the doubtful American public. Same goes for the opening stage; the actual roles of

journalist and reader determine the procedural rules and starting points like the discussion format of an online

opinion article, facts of the specific case, and American values. Like the previous article, the pre-existing relation

between Zagorin and his employer, TIME magazine, and their inherent political ties constructs a basis for

meaningful exchange with the audience. Zagorin‘s argumentation is present throughout the article, so much so that

the article is basically an elongated argumentation stage. Below is the schematic reconstruction of Tabin‘s opinion

article. Again, this is only the deep argumentation structure within the article; all dialectical moves irrelevant to

American public‘s adoption to Zagorin‘s standpoint were omitted.

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 (1’) (The legal ruling in the case of Boumediene v Bush was a favorable one.)

1 Boumediene v Bush marks a historic rebalancing of powers between the Executive, Congress
and the judiciary.
1.1 According to Justice Kennedy, “The laws and Constitution are designed to
survive, and remain in force, in extraordinary times…to hold that the political
branches may switch the Constitution on or off, at will, would lead to a regime in
which they, not this court, say 'what the law is’.”
(1.1’)
If Justice Kennedy says that the decision carries out a balancing of powers, then
it is apparent that prior the decision they were not balanced, and because of the
decision they are now balanced.
1.2 “Civil libertarians, human rights activists and lawyers who have been
challenging the Bush Administration's stance on Guantánamo for years hailed
the Supreme Court decision as a major step forward.
(1.2’)
If such a diverse and persistent group of intellectuals and civic activists support
the decision, then the results of the decision must be favorable for at least just
their own efforts.
1.2.1 Longtime adviser to lawyers representing prisoners at
Guantánamo and Distinguished Professor of
Constitutional Law at Hofstra, Eric. M. Freedman points
out that, "The court has brought the Constitution home
from exile.” “Everyone who believes that America is a
country devoted to the rule of law should celebrate
because this ruling says that the Executive needs to be
accountable to a neutral judicial forum in its decisions to
imprison people — and that is the basic restraint on
tyranny that animated the American Revolution."
(1.2.1’) Eric M. Freedman is a more than credible source of
expert opinion regarding the Boumediene v Bush case.

Zagorin‘s argumentation greatly differs from Tabin‘s during the conclusion stage. I would account for this

by first introducing Zagorin‘s reconstructed conclusion, ―The Boumediene v Bush ruling‘s practical implications

remain unclear.‖ This is a much easier ending point to maintain than a claim referring to a swing vote justice‘s

intentions regarding judicial power. Not only is it easier to maintain on its own, but it is holds more argumentative

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force when supplemented with its own argumentation, as Zagorin did. Below is the separate reconstruction of

Zagorin‘s conclusive argumentation.

(2’) The practical implications of Boumediene v Bush remain unclear

2.1
Shayana Kadidal points out, “The impact of this ruling on military commissions trying
Khalid Sheikh Mohammed and others may very well be negligible, because federal courts
have always been reluctant to stop trials, including military trials, in mid-process.”
(2.1’)
As senior attorney at the Center for Constitutional Rights, a nonprofit whose lawyers
serve as sole or joint counsel for more than 200 prisoners at Guantánamo, Kadidal is a
credible source for opinion expertise on the case of Boumediene v Bush.

2.2 For approximately 190 prisoners at the base who are never expected to be charged, the ruling
could bring a change.

2.2.1a One-third of them has already been cleared for release but is being held until a
country can be found to accept them.

2.2.1b Roughly 50 are considered refugees, meaning they might face torture or other
mistreatment if they are returned to their countries of origin.

2.2.1c Others are still being held as a possible danger to the U.S., in case they decide to
return to the battlefield. Lawyers for detainees in these categories are likely to file cases
under the new ruling in the hope of speeding their release

5.6 Argument Reconstruction of the National Review Article

Of all four of these articles, ―A Quick Way Forward After Boumediene‖ written by Andrew C. McCarthy

of the National Review Online is definitely the lengthiest and understandably so. The confrontation and opening

stages share similar implicitness to that of the previous two articles. The intended audience, the American public, is

assumed to cast doubt on the journalist‘s standpoints and therefore, a difference of opinion is created. And by the

very fact that the journalist wrote an opinion article defending a standpoint that the public can access and some will

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actually read it creates the roles of protagonist and antagonist for the opening stage. In the following reconstruction,

I present McCarthy‘s relevant argumentation schematically.

(1’) (The legal ruling in Boumediene v Bush was an unfavorable one.)

1 The Boumediene ruling is an outrageously terrible decision for many reasons.

1.1 War on Terror is unlike other wars
1.1.1 There is no foreseeable ending scenario to War on Terror
1.1.1.1 Terrorists are not capable of a resolution via treaty,
territorial conquering, or terms of surrender.
1.1.1.1.1 “Our enemies, moreover, are terrorists who
operate in shadows, in civilian garb not military
insignia.”

1.2 The decision empowered “enemies of the American people to use the
American people’s courts as a weapon to compel the American people’s
commander-in-chief to justify his actions during a war overwhelmingly
authorized by the American people’s elected representatives . . . even as those
enemies continue killing Americans.”
1.2.1 The Majority misread/bended legislative precedents during
judicial review,
1.2.1.1 In 2004, the court decided in Rasul v Bush, “that
the jihadists had statutory habeas corpus
rights”
1.2.1.2 In 2006, in Hamdan v Rumsfeld, “the Court
selectively mined and tortured the language of
the Geneva Conventions to vest the jihadists
with trial rights under Geneva’s Common
Article 3.
1.3 Robert’s described the decision a “constitutional bait and switch”
1.3.1 The Court beseeched the political branches to enact a
statutory procedure for detainees AND THEN invalidated the
effort for its failure to satisfy the “eccentric predilections of
five lawyers”

As the title of this article suggests, McCarthy‘s endpoint, or conclusion is mainly a suggestion for judicial

remedy: judges have no war power competence; therefore, Congress needs to step in and create a specialized court for

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such hearings with greater burdens placed on the petitioners. Instead of realizing the extent to which McCarthy‘s

article was successful in getting his standpoint accepted by the audience, he assumes the audience agrees and looks for

a ‗next step‘ so to speak. Luckily, for these readers, McCarthy goes pretty deep into what Congress should do.

5.7 Argument Reconstruction of the Newsweek Article

I will spare another recount of the opening and confrontation stages for this article as the conventional

attributes of opinion articles in political news magazines are shared by all four case studies. To recapitulate, the

confrontation and opening stages are implicitly discussed through the nature of the reader-writer relationship.

Mainly, the articles presented consist of the argumentation stage and concluding stage. I have reconstructed Stuart

Taylor‘s ―Overplaying Its Hand‖ argument scheme below.

(1’) (The legal ruling in Boumediene v Bush was a favorable one.)

1 The Bush Administration “guaranteed years of legal wrangling””

1.1 The administration built Guantanamo aware that their lawyers figured American
courts had no jurisdiction regarding detainees there.
1.1.1 The detainees were not subject to U.S. Constitution and habeas corpus
rights in Guantanamo Bay.

1.2 “Bush and his advisers put the Supreme Court in an impossible position”

1.2.1 The Supreme Court could either “rubber-stamp denials of due process to
detainees who say they were seized by mistake, or step in and create a
new set of problems by making rules on a slow, messy, case-by-case
basis.”

1.3 “the Republican Congress passed laws in [DTA] 2005 and [MCA] 2006 giving terror
suspects minimal opportunities to challenge their detention in federal court.
1.3.1 The Republican Congress was “under pressure from the courts”

At the concluding stage, Taylor‘s endpoint is simply, ―Indeed, a host of questions remain to be resolved.‖

Then he goes on to list specific questions such as, ―What kind of rights should detainees have? Will they have access

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to secret evidence to be used against them? Should they be able to compel American soldiers or foreign nationals to

leave the battlefield to testify against them in person? Can they summon friends and neighbors from foreign lands to

testify to their innocence?‖ Again, like the others, the acceptance of the protagonist‘s standpoint in the eyes of the

antagonistic American public is unknown. Therefore, we can assume that Taylor predicts the audience will accept his

standpoint and, in turn, agree with his conclusion as well.

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 CHAPTER 6 – MANEUVERING STRATEGICALLY

6.1 THREE INSEPARABLE ASPECTS

After discussing the four articles in terms of a pragma-dialectical critical discussion, I will now turn to the

analysis of the rhetorical and dialectical moves each journalist make. To assist with this task, I will draw upon the

previously mentioned extension of the pragma-dialectical theory known as strategic maneuvering. (van Eemeren,

2010) In it, the Dutch theorist purports that a more sophisticated analysis and evaluation of discourse should be

accompanied by a differentiated view of argumentative maneuvers rather than a rigid and singular perspective.

According to van Eemeren, distinguishing the three separate aspects of strategic maneuvering helps to ―make sure

that the analysis and evaluation of argumentative discourse do not concentrate on just one particular aspect of

strategic maneuvering but take methodically – each individual aspect in turn – all aspects into account that are worth

considering.‖ These three aspects are topical potential, where the arguer selects an argumentative move from a set of

possible moves; audience demand, where the arguer shapes his arguments in accordance to the interest of the

intended audience; and presentational devices, where the arguer delivers his/her argumentative moves in a fashion or

manner that suits his dialectical and rhetorical goals best. As mentioned before, these three aspects often occur in

some sort of combination, despite them pertaining to different qualities of maneuvering. In the sections to come, I

will demonstrate how the journalists balance between the rhetorical ideal of effectiveness and the dialectical ideal of

reasonableness.

6.2 Strategic Maneuvering within the American Spectator Article

In the same order as the reconstructions in section 6 occurred, I will now begin to analyze the strategic

maneuvering found in John Tabin‘s ―Lord Kennedy‖ article. I immediately noticed, is the title, ―Lord Kennedy.‖

This is an overt presentational device that easily communicates to the audience what will follow in the article. He is

sarcastically portraying Justice Anthony Kennedy as a power-hungry judge who takes advantage of his position as

swing vote in the Supreme Court. This choice was obviously made more for rhetorical reasons as it serves as a

potential attention-grabber, we can therefore consider this primarily as a presentational device with some respect to

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audience demand. As the title suggests, the article is mainly about Kennedy‘s position as swing vote, but it touches on

a few key issues in the case. To start, Tabin describes the case as dealing with enemy combatants at the U.S. Naval

base at Guantanamo Bay, Cuba; Tabin describes this place as having ―quirky nature... [that] raises questions about

the reach of the Constitution there.‖ I consider this a euphemistic description as the base‘s existence is a point of

heavy controversy throughout the United States. Tabin lightly frames the relevant issue of Guantanamo Bay as a law-

free zone for the American government and more subtle than it actual is.

Tabin relies heavily on excerpts from the dissenting opinions of both Justice Scalia and Chief Justice

Roberts. The first is, as Tabin rephrases, ―Justice Antonin Scalia argues fairly persuasively in his dissent that this is

an incorrect reading of the precedent and history surrounding habeas corpus.‖ Here, Tabin strays from his

journalistic role of conveying information objectively and assumes a bolder role of political patron. He agrees with

Scalia‘s fairly persuasive opinion and clearly communicates that to the reader. Combing a presentational device with

topical selection, this maneuver effectively relies on actual case discourse which enhances the strength of Tabin‘s

argument. On the contrary, despite being about Kennedy, the article only mentions one quote from Kennedy that is

later rephrased by Roberts. Tabin places the quote after explaining that previously approved legislation (Military

Commissions Act of 2006 and the Detainee Treatment Act of 2005) are now insufficient for the majority opinion,

even though approved by four-fifths margin. The quote chosen to represent Kennedy is as follows, ―"To hold that

the detainees at Guantanamo may under the DTA, challenge the President's legal authority to detain them, contest

the CSRT's findings of fact, supplement the record on review with newly discovered or previously unavailable

evidence, and request an order of release would come close to reinstating the §2241 habeas corpus process [that is,

the standard process for noncombatant American citizens] Congress sought to deny them." After carefully reading

the quote, one may eventually grasp its meaning. I find the difficulty of this wordy excerpt from Kennedy to have a

two-fold function of confusing the reader via legal jargon; whereas the quotes outlined from Roberts and Scalia alike

are much more simple and conceptually understandable, especially in lieu of playing on the appeals of American

values. The second function is to further support the dissenting opinion by following with a quote from Robert that

rephrases Kennedy‘s quote in pragmatic terms: ―In other words…any interpretation of the statute that would make it

an adequate substitute for habeas must be rejected, because Congress could not possibly have intended to enact an

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adequate substitute for habeas.‖ Again, Tabin makes use of topical selection strategically in choosing case excerpts

that portray the decision as one made by a power-hungry justice. Another example of such strategy comes shortly

after when Tabin quotes Roberts again, ―One cannot help but think…that this decision is not really about the

detainees at all, but about control of federal policy regarding enemy combatants.‖ In this, Tabin is saying, via

Roberts, that this decision was obviously ill-advised and fallacious in its motive. In doing so, the blame is placed

once more on Justice Kennedy, the author of the majority opinion. Tabin repeats the same tactic with a similar quote

from Scalia right after.

The final and loudest series of maneuvers made by Tabin are definitely the most effective yet least

reasonable. ―Scalia writes that this decision ‗will almost certainly cause more Americans to be killed.‘ He closes his

dissent with the assertion that ‗The Nation will live to regret what the Court has today.‖ These statements resonate

loudly with concerns of patriotism, nationalism, and public safety which appeal to, in a sense, all Americans. What is

interesting to note are what pragma-dialecticians refer to as, ―fallacies as derailments of strategic maneuvering.‖ (van

Eemeren, 2010, Ch. 7, pp. 187-193) Although, the derailment is committed by Scalia initially, the manner in which

Tabin utilizes the quote is to echo Scalia‘s words with the same, if not amplified, effect. To account for this, Tabin

then refers to Scalia‘s sentiment, adding: ―He‘s probably right.‖

Scalia‘s first derailment is akin the post hoc fallacy in which something is claimed to be caused by this,

simply by being after it. Scalia purports an immunized claim that Americans will almost certainly die because of this

ruling. There is no doubt that Americans will be killed in combat related to the War on Terror by the guns of

terrorists. But for Scalia, and Tabin, to extend this to eventually mean that the ruling in the decision will cause

American deaths, is fallacious. Scalia‘s use of almost certainly represents a presentational device by Scalia that is later

a topical selection for Tabin. The second derailment is clear in Scalia‘s generalization of the nation as a whole that

will eventually regret Boumediene v Bush. The last statement in the article reiterates Tabin‘s standpoint, ―But

Anthony Kennedy is Lord of the Judiciary, and nothing can stop him when he‘s intent on expanding his fiefdom.‖ I

view this statement as an interesting metaphor that could play on the historical significance of monarchies in

America.

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 Through reviewing some of the more pertinent strategic maneuvers in Tabin‘s article, we can now see how

author adhered to the ideals of effectiveness more so than reasonableness. Plainly, rhetorical strategy advanced

Tabin‘s arguments more rapidly while specific excerpts, mostly from the dissenting opinion, provided credibility to

the expressed standpoint.

6.3 Strategic Maneuvering within the TIME article

The next article, ―What the Gitmo Ruling Means‖ by Adam Zagorin was posted on TIME.com the day of

the ruling‘s announcement. Zagorin‘s primary standpoint was reconstructed as, ―Boumediene v Bush marks a historic

rebalancing of powers between the Executive, Congress, and the judiciary.‖ This is essentially the exact opposite of

Tabin‘s standpoint in the previous article. Zagorin is rather explicit in stating his standpoint in the beginning of the

article, ―The Supreme Court's 5-4 decision Thursday asserting that foreign terrorist suspects held at Guantánamo

have an inherent constitutional right to challenge their detention in American courts marks a historic rebalancing of

powers between the Executive, Congress and the judiciary — one that many critics believe is a long overdue

correction after years of Executive overreach by the Bush Administration. But the precise practical impact remains

unclear.‖ The secondary standpoint, reconstructed as Zagorin‘s conclusion asserts that ―the precise practical impact

[of the ruling] remains unclear.‖ Unlike Tabin, Zagorin utilizes a presentational device and distances himself from an

external accusation ―that many critics believe.‖ To the reader, it is as though Zagorin asserts that the decision

rebalances federal powers, but he is only mentioning that many others see it as a remedy to the fact that the Bush

Administration overreached their executive power. The first instance of topical selection is found in the second

paragraph as a direct quote from Justice Kennedy. I think it is noteworthy that the conservative news source first

mentioned excerpts from the dissenting opinion, whereas, the liberal news source first mentions the majority opinion.

Kennedy statement, ―The laws on Constitution are designed to survive, and remain in force, in extraordinary times,‖

implies that the laws and Constitution were, at the very least, in jeopardy during the War on Terror and he views

that as unfavorable. Zagorin continues Kennedy‘s statement to include, ―To hold that the political branches may

switch the Constitution on or off at will would lead to a regime in which they, not this court, say ‗what the law is‘.‖

To the general population of law-abiding American citizens, the notion of enabling and disabling the Constitution as

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they see fit is essentially unconstitutional. Zagorin strategically took advantage of the framing of American values,

aware that it would be hard for readers to disagree with Kennedy‘s reasoning.

Although both Zagorin and Tabin mention the MCA and DTA legislation of 2006 and 2005, respectively,

Zagorin includes that the Courts, in their fourth major legal victory regarding right for foreign detainees against the

Bush Administration, rejected the protections provided by them. This renders, to the readers, the previous legislation

as inadequate safeguards of the rights for enemy combatants. This boldly contrasts the previous conservative notion

that the MCA and the DTA both sufficed as adequate substitutions for habeas corpus. Another striking difference in

the strategic maneuvering of these first two articles is that Zagorin sheds light on the other side. First, President

George W. Bush is quoted saying ―We‘ll abide by the court‘s decision. That doesn‘t mean I have to agree with it.‖

He then quotes one of the key authors of the MCA of 2006 and 2008 Presidential candidate, John McCain. He

presented McCain‘s quote after indicating McCain ―had not yet had time to scrutinize the ruling,‖ but he said, ‗it

obviously concerns me…These are unlawful combatants; they‘re not American citizens.‘‖ I consider these two as a

combined topically-selected presentational device. The included quotes from both McCain and Bush hold minimal

argumentative force and are expected reactions. To an American reader, Zagorin‘s presentation of these quotes could

portray McCain as inattentive in regards to the case‘s details and Bush frustrated with another legal defeat.

The next difference is Zagorin‘s distribution of quotes. He only uses one quote per source, while Tabin

repeatedly referred to Scalia and Roberts for emphasis. The next two quotes come from the dissenting opinions of

Roberts and Scalia. Roberts criticized the majority for ruling unconstitutional ―the most generous set of procedural

protections ever afforded aliens detained by this country as enemy combatants.‖ And that, he continued, this would

open the majority to charges of ―judicial activism.‖ Here, the reader must understand that the same justice who

supports upholding the previously trotted-on Constitution is being accused of a judicial power-grab. Additionally,

Zagorin adds the same exact Scalia quote mentioned in the previous article that suggest the decision will cause

American deaths and the nation will regret the decision. Zagorin seems to stick to his journalistic role as he quotes

sources and reveals information more objectively than Tabin. Zagorin, though considered as a part of the liberal

news source, TIME, does not noticeably inject his own views in to the article. He does take up a more realistic view

and ponders what will actually happen as a result of the case‘s decision. To frame the ambiguity, Zagorin relies on a

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statement from Shayana Kadidal, senior attorney at the Center for Constitutional Right, a nonprofit organization

whose lawyers serve as counsel for more than two-hundred Gitmo detainees. In the statement, she says, ―The impact

of this ruling on military commissions … may very well be negligible, because federal courts have always been

reluctant to stop trials, including military trials, in mid-process.‖ This corresponds to topical potential as Zagorin

selects a credible and extremely relevant source apart from the judiciary and the respondents, the Bush

Administration. More importantly, this expert‘s statement coincides with the main argumentative angle Zagorin puts

forth.

Strangely, Zagorin‘s last paragraph is a summary of the events leading up to the case. The summary conveys

information without much of a rhetorical spin yet is irrelevant to the main claim made by Zagorin. I view this as a

poor presentational device solely because of its rather random placement. If, perhaps, Zagorin had mentioned this

brief synopsis at the beginning of the article, it would have made more sense. The choice to leave this part for the

end may be for the lasting impression of the article – leaving the reader‘s last thoughts to be about Lakhdar

Boumediene and five other Algerian-born Bosnians locked up in Guantanamo Bay despite prior proceedings by the

Supreme Court of Bosnia and Herzegovina which ordered their release for lack of evidence. Therefore, if the

summary was at the beginning, Zagorin would be adhering more to the dialectical ideal of reasonableness since it

would have less rhetorical impact. Since it is the last remark, we can consider this as a rhetorical effort to improve the

likeliness that Americans would view the case in positive light.

After reviewing the most significant strategic maneuvers in the article, we can now notice contrasting uses of

relevant facts of the case and expert commentary. Zagorin‘s article remained closer to a balanced account of the

Court‘s ruling beginning with a much clearer standpoint. This is in contrast to Tabin‘s article which was clearly more

rhetorically-enhanced.

6.4 Strategic Maneuvering within the National Review Article

Andrew C. McCarthy‘s article entitled ―A Quick Way Forward After Boumediene,‖ is definitely the most

peculiar of the four selected articles. Interestingly, although the lengthiest article, almost tripling the amount of text

in the other articles, it does not include any direct quotes from either of the opinions. Throughout the article,

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McCarthy bashes the Court‘s ill-advised ruling and calls upon the Congress to remedy the ―terror-friendly bedlam.‖

He opens up his discourse with the claim that, ―It is difficult to single out the most outrageous aspect of Justice

Anthony Kennedy‘s majority opinion…‖ To any reader, it is already clear that McCarthy will be adhering more to

his role as a legal critic of a conservative magazine than a journalist of a news source. The reconstruction of this

article in the sixth chapter does not include the colorful spread of negative adjectives McCarthy uses to describe the

effects of the 5-4 decision in Boumediene. These outrageous aspects include ―reckless vesting of constitutional right

in aliens,‖ ―bloody jihad against Americans,‖ ―roughshod ride over binding precedent,‖ and ―smug arrogance.‖ Each

as their own presentational device, they collectively ruin the image of the Court and its ruling. McCarthy‘s actual

audience is composed of mainly conservatives who presumably already agree with McCarthy‘s disgust in the court.

But argumentatively, his intention is to convince the indifferent or, undecided American reader into accepting his

standpoint (see section 6.4). Portraying the Court in the way McCarthy does relies heavily on the use of rhetorical

ideals of effective presentational devices rather than dialectical reasonableness.

McCarthy highlights the decision‘s burdensome character while he also downplays the Bush

Administration‘s wrongdoing that kept innocent men detained in Guantanamo for the better half a decade. ―In the

world we inhabit, it perversely benefits them by sowing doubt about their status. It makes plausible the possibility we

have scooped up at least some people in error.‖ This strategic choice of words implies many things to the reader.

First, it blames the clandestine nature of terrorists for potential innocent detentions, instead of the government body

responsible. Second, he does not mention the actual innocence of the consolidated petitioners in Boumediene.

Rather, he presents the situation as a plausible possibility. He further indicates his lack of concern for detaining

innocents when he writes, ―our legal elites have succeeded in raising popular concerns about the specter of innocents

being held in perpetuity at the whim of the executive, without an opportunity to challenge their detention.‖ Here,

McCarthy‘s use of the word, ―our‖ and later, his use of the phrase ―This has been coming at us like a runaway freight

train‖ corresponds to the pragma-dialectical notion of audience demand. By explicitly including himself with the

readers, as an American public, he better suits his intention and creates a sense of share victimhood that Americans

must now endure the consequences of the ruling.

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 McCarthy catches readers up on relevant cases, Rasul v Bush and Hamdan v Rumsfeld in a very

rhetorically-enhanced manner. For instance, in the Rasul case, ―the Court, in a fit of imperious recklessness nearly the

equal of Boumediene, decided…that the jihadists had statutory habeas corpus rights.‖ As for Hamdan, McCarthy

synopsizes that, ―the Court selectively mined and tortured the language of the Geneva Conventions to vest the

jihadists with trial rights under Geneva‘s Common Article 3.‖ These two mentioned cases correspond to McCarthy‘s

topical selection. By including these two cases, McCarthy provides readers with background information to enhance

their understanding of the situation but at the same time, he delivered the cases with such an overtly passionate tone

that clearly this is not an objective account. The lion‘s share of the article consists of McCarthy discussing how and

why Congress should remedy the ―terrible decision.‖ I consider much of this repetitive and irrelevant to the argument

regarding the case‘s decision-making process. I am instead focusing on reactions to the ruling and relevant

argumentation surrounding it. McCarthy‘s discussion on what Congress should do strays from the discursive content

I wish to analyze.

In the concluding statements of the article, McCarthy echoes the arguments of fellow conservatives Scalia,

Roberts, and Tabin, ―Unduly empowered by the bedlam of unguided judicial proceedings, many jihadists will be

freed. If that happens, Americans will be killed.‖ Again, another rhetorical use of the claim that the Supreme Court‘s

decision will cause American deaths adheres to the ideal of effectiveness.

In review of McCarthy‘s article, it is clear that the standpoints expressed were supplemented with a plethora

of reasoning. However, it remains a decent example of a rhetorically-rich argumentative discourse. Topically,

McCarthy chose to discuss more on a potential solution to the disagreeable court decision. This was an effective

maneuver that supported the notion that the Court‘s ruling was unfavorable and not in the American people‘s best

interest. The conservative audience can easily accept many of McCarthy‘s sub-standpoints by simply relying on what

he describes factually and they become convinced through strategic presentational devices that resonate with

patriotism, nationalism, and Constitutional values.

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6.5 Strategic Maneuvering within the Newsweek Article

The last of the four articles, written by Stuart Taylor, Jr., ―Overplaying Its Hand‖ claims that the Bush

Administration overreached their executive powers by building Guantanamo. The title stems from Solicitor General

for the Reagan administration, Charles Fried stating that ―the ―Bush administration ‗badly overplayed a winning

hand.‘‖ Corresponding to topical selection, Taylor chose to begin his article discussing the status of national security

prior to Boumediene. According to Taylor, ―fighting wars and defending the nation‖ were responsibilities the courts

―have long deferred to the President and Congress. He then explains the Bush Administration‘s legal intentions for

Guantanamo Bay prisoners. I consider the combination of Taylor topical selection and presentational devices

regarding the introduction to the article in line with that of a more objective journalist. Taylor strays from this role

by adding sarcastic last sentence of the introduction, ―Just as true believers in the Bush White House have done so

often, they overreached.‖ Here, Taylor adapts to his assumed audience and separates him and potential readers from

supporters of the Bush administration. The implications of the statement discount the Bush Administration and its

followers, in turn, set up Taylor‘s future argumentation advantageously with respect to his standpoint.

Taylor continues to bash Bush by claiming the Administration ―put the Supreme Court in an impossible

position‖ limiting them to ―either rubber-stamp denials of due process to detainees who say they were seized by

mistake, or step in and create a new set of problems by making rules on a slow, messy, case-by-case basis.‖ An

argument akin to the ad consequentiam fallacy, this statement strategically presents the Bush administration as

leaving no truly favorable outcome. Unlike the other liberal journalist, Taylor does not explicitly praise the decision

as favorable. In fact, he writes, ―If ever there was proof of the adage ‗hard cases make bad law,‘ this is it.‖

Another aspect of topical selection is found in the third paragraph where Taylor refers to the 1949 Geneva

Conventions as giving prisoners certain rights. This describes the legal climate of foreign detainees prior the Bush

Administration unique labeling and treatment of ―unlawful combatants‖ in Guantanamo. Again, Taylor chooses to

include a quick description of the legislation approved by the Republican Congress, the MCA of 2006 and DTA of

2005, which ―gave terror suspects minimal opportunities to challenge their detention in federal court. Detainees were

not allowed to have defense lawyers in initial military hearings to determine their status as enemy combatants, or to

review or rebut evidence deemed secret by the government.‖ Rather effectively, Taylor reduces the legislation to

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resonate as an obviously inadequate substitution for habeas corpus. Also, by mentioning secret evidence, he depicts

the Bush administration again as taking advantage of their executive powers.

Taylor mimics Zagorin‘s use of the following Kennedy quote, ―The laws of the Constitution are designed

to survive, and remain in force, in extraordinary times.‖ He also similarly echoes Tabin‘s topical selection in quoting

Scalia‘s accusation that the decision will ―almost certainly cause more Americans to be killed. Although the same

selections were chosen, Taylor‘s presentation of the quotes differs from Tabin‘s. For instance, Taylor claims

Roberts‘s dissenting opinion was ―less alarmist‖ than that of Scalia as it feared unnecessary legal wrangling as

opposed to American deaths. Taylor closes his description of the dissenting opinion with, ―Scalia, Roberts and the

other two conservatives chided the majority for a judicial power grab.‖ Taylor‘s conclusion lists questions that still

remain regarding the outcome of the case. ―What kind of rights should detainees have? Will they have access to

secret evidence to be used against them? Should they be able to compel American soldiers or foreign nationals to

leave the battlefield to testify against them in person? Can they summon friends and neighbors from foreign lands to

testify to their innocence?‖ I consider this a prime example of proper strategic maneuvering within the

institutionalized context of opinion articles on legal decision-making in political news magazines. My reasons for

such a bold claim come after reconsidering the hybrid role that Tabin shares with the other journalists in the analysis.

We can correlate the role of the objective journalist responsible for conveying information to the dialectical

dimension of strategic maneuvering, adhering to the standard of reasonableness. The role of the politically-

motivated writer, who attempts to effectively convince the American public to accept their standpoint, correlates to

the rhetorical dimension, favoring effectiveness. In his conclusion, Taylor reasonably asks a series of unanswered

questions that are a legitimate concern for Americans and innocent detainees. But, this is done equally effectively as

they collectively imply that prior to the ruling in Boumediene; no rights existed at all for detainees. And of course,

Taylor does not insist that these questions can be answered. In fact, his last statement clarifies that ―The only clear

outcome is the certainty of enduring confusion: by trying to sidestep the most basic legal protections for detainees at

the outset, the Bush administration guaranteed years of legal wrangling.‖In comparison to the previous three articles,

Taylor‘s account of the decision in the Boumediene v Bush court case was most blameful of the Bush administration.

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The point made revolves around the wrongdoing that served as a catalyst for the case. He also remained the most in

balance with his hybrid role of journalist and political advocate.

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 CHAPTER 7 – CONCLUDING REMARKS

7.1 RECAPITULATION OF RESEARCH

In this dissertation, I‘ve endeavored to explore the application of pragma-dialectical instruments to a

concisely specific institutionalized context. Inspired by the combined normative and descriptive elements of the

approach, I viewed pragma-dialectics as the proper perspective for analyzing the kind of political argumentation

found in these articles. In a general to specific fashion, I decided to begin by introducing the argumentative context

in which my four pieces of textual discourse originated. The broad concepts of political communication, media bias,

and American bipartisanship required some clarification to my audience for the content of the magazine articles

discussed. These online opinion articles all shared general qualities of being in a major American news magazine that

covered legal events such as United States Supreme Court hearings and specific qualities of informative

commentaries regarding the federal court case Boumediene v. Bush, 553 U.S. 723 (2008). Ostensibly, one could not

continue the discussion without explaining background information on the case of Algerian-born Bosnian

Boumediene who, despite his innocence, served close to eight years in the U.S. Naval Base prison compound in

Guantanamo Bay, Cuba as result of the national security efforts of the President George W. Bush administration.

With the context and content explained, I began to investigate the political strategic maneuvering found in two

liberal and two conservative opinion articles in reaction tothe Boumediene ruling. In doing so, I managed to compare

and contrast the quality of argumentation from two competing political parties on the issue of a politically-charged

federal court case. Through the use of pragma-dialectic‘s notions of rhetorical effectiveness, dialectical

reasonableness, and the three aspects of maneuvering strategically that assist arguers in balancing the two opposing

positions, I managed to analyze and evaluate each article‘s argumentation.

In the way of a pragma-dialectician, this dissertation counters the bold divide between dialectical and

rhetorical approaches to argumentation as it encourages that argumentative discourse can be analyzed and evaluated

more adequately if the two are systematically combined. One of the over-arching goals was to apply this theoretical

perspective to argumentative discourse easily found by those other than argumentation theorists. In fact, I chose

opinion articles based on their hybrid form, described as informative commentaries, responsible for adhering to both

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standards of journalists, but also as political advocates. This dichotomy of value really matched up well to the dual-

focus described in strategic maneuvering. Such an integrated approach made it possible to show how the

opportunities available in each of the dialectical stages of a critical discussion have been used strategically to further

the rhetorical aims of the journalists.

The goals of this dissertation were two-fold: general and specific. I wanted to answer the general questions,

―how does political argumentation occur in American news magazine articles in reaction to a controversial federal

court ruling?‖ and ―how can pragma-dialectics assess the dualistic goals of a political opinion writer concerned about

legal proceedings in America?‖ After surveying various concepts from communication theory, argumentation theory,

and political media research, I narrowed by direction. Specifically, I sought to answer the questions, ―how are

opinion articles in political news magazines an institutionalized context?‖ ―In which critical discussion stage(s) do

the involved parties find themselves?‖ ―How do the arguers adhere to standards of reasonableness and effectiveness?‖

―In which ways do the arguers utilize topical selection, audience demand, and presentational device to maneuver

strategically throughout their argumentation?‖

7.2 MAIN FINDINGS

During the course of my research, I have made various context-specific discoveries via the pragma-dialectical

approach in institutionalized contexts of opinion articles on a legal discussion in American political news magazines.

Much of what I demonstrated corresponded to the influence that context has on the argumentation. I found it rather

restrictive for opinion writers commonly accustomed to free-form rants filled with provocative and emotionally-

charged phrases to write on the basis of a clear-cut and explicitly defined court case. The public‘s access to the court

documents (oral arguments of petitioners and respondents, majority and dissenting opinions, amicus curiae briefs,

etc.) levels the argumentative playing field in the sense that the repertoire of available information is the same for

both parties; it is freely accessible and thorough account of the case happenings, and written in a rather rigidly

objective, legal tone. This should be taken into higher account than just a contradiction between the subjective nature

of opinion articles and the objective nature of court cases. It is then up to the efforts of the journalist to strategically

52 | P a g e
maneuver the facts of the case into their own argumentative opinion in such a way to balance their hybrid role of

putting forth an opinion that is both informatory and commentary.

Secondly, it is interesting to notice the fluctuation in the amount of stress the journalists put on the ideals

of reasonableness and effectiveness. Given that the federal court case central to the units of analysis was considered a

liberal victory, I noticed liberals using less provocative presentational devices than the conservatives. The analysis of

strategic maneuvering gave much more detailed perspective of the argumentative mode of each side of the political

spectrum. It could be fruitful to ponder and continue research on this comparative aspect that the extension of

pragma-dialectical provided my research. That is, to notice patterns in the levels of rhetorical and dialectical

standards in accordance to the difference of opinion. It seems to me as though the party with more to contradict or

to overcome argumentatively relies more heavily on rhetorical strategy to resolve the dispute in their favor. The party

with less of an argumentative duty can simply echo the facts of the case in order to be effective and reasonable. This

is a case-in-point example of arguers relying on dialectical principles of reasonableness via the status quo of the

difference of opinion.

7.3 RELATED FIELDS

What I‘ve presented by the end of this dissertation may be of interest to academics in the fields of

argumentation, communication, and linguistics, but also to professionals in the areas of investigative journalism,

political and legal correspondence. To many outside the umbrella of argumentation theory, writing an opinion article

is simply opinion-sharing. However, the thorough analyses of rhetorical and dialectical intentions that motivates

strategic argumentative maneuvers in actual discourse sheds light on journalistic tendencies to butter-up or down-

play factual events. Although, much has been written and read on media bias, I believe my contribution utilizes the

normative and descriptive elements from pragma-dialectics in order to demonstrate, more adequately, the

argumentative distance between what actually happened in the Supreme Court to what should‘ve happened in the

Supreme Court.

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7.4 FURTHER RESEARCH

In the end, my selected examples of opinion articles from news magazines make it clear that strategic

maneuvering in political argument is extensive. They also show some of the difficulties in evaluating the acceptability

of strategic maneuvering when referring to the critical discussion rules. Normatively, political argumentation within

news magazine opinion articles shares some of the characteristics of a critical discussion, but it is also heavily

influenced by the constraints of a sphere of argument that is open to all without preconditions regarding training,

expertise, or prior commitments. These argumentative conditions should entail that the argument critic gives a

broader range to the arguer and audience, as well as requires the critic to be charitable in understanding what they are

trying to do. It‘s worth remembering that the unique and hybrid nature of informative commentaries will provide

rich material for studying the potential possibilities and pitfalls of strategic maneuvering.

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 APPENDIX - NEWSWEEK MAGAZINE ARTICLE
Overplaying Its Hand

Stuart Taylor Jr.

June 14, 2008

When it comes to national security—fighting wars and defending the nation—the courts have long deferred to the
president and Congress. After 9/11, the Bush administration counted on judges staying out of the way as it figured
out what to do with suspects rounded up in the War on Terror. The administration built a prison at the U.S. Navy
base at Guantánamo Bay, Cuba, because it was secure, but also because administration lawyers figured (and legal
precedents suggested) that American courts had no power to meddle there. Just as the true believers in the Bush
White House have done so often, they overreached.

As Charles Fried, solicitor general in the Reagan administration, has reportedly put it, the Bush administration
"badly overplayed a winning hand." Bush and his advisers so flouted ordinary, and old, ideas of justice and liberty
that they put the Supreme Court in an impossible position: either rubber-stamp denials of due process to detainees
who say they were seized by mistake, or step in and create a new set of problems by making rules on a slow, messy,
case-by-case basis. In effect, that's what happened last week when the court ruled in Boumediene v. Bush. If ever
there was proof of the adage "hard cases make bad law," this is it.

Historically, prisoners of war have no rights in U.S. courts. But even so, they are released when the war ends. The
War on Terror has no foreseeable end. What's more, since the terrorists don't wear uniforms, it can be hard to
discern who the real enemies are. Under the four 1949 Geneva Conventions, prisoners of war have some rights. But
after 9/11, hard-liners in the administration decided that terror suspects brought to Guantánamo and various secret
prisons around the world lacked any of the protections of the Geneva accords because they were "unlawful
combatants."

Under pressure from the courts, the Republican Congress passed laws in 2005 and 2006 giving terror suspects
minimal opportunities to challenge their detention in federal court. Detainees were not allowed to have defense
lawyers in initial military hearings to determine their status as enemy combatants, or to see or rebut evidence
deemed secret by the government.

The potential for unfairness was so great that last week the Supreme Court stepped in and struck down the federal
laws, ruling that terror detainees must be given full access to federal courts, under the ancient principle of habeas
corpus, which roughly means that government cannot hold you without proving to the courts a legal basis for the
detention.

The decision was close, 5-4; writing for the majority, Justice Anthony Kennedy said, "The laws and Constitution are
designed to survive, and remain in force, in extraordinary times." In his dissent, Justice Antonin Scalia pointed an
accusatory finger at Kennedy and the justices who agreed with him. The decision will mean the release of dangerous
terrorists, he warned, "and almost certainly cause more Americans to be killed." Chief Justice John Roberts, who
also dissented, was less alarmist. He predicted that the detainees' cases would rattle around the courts and that the
outcome—in terms of detainees ultimately released—would be about the same as if the justices had upheld the
existing process. Scalia, Roberts and the other two conservatives chided the majority for a judicial power grab.

In the wake of the court's decision, pressure will grow on the Bush administration to close down Guantánamo, which
has been a public-relations disaster. The military has already released more than 500 detainees for a variety of
reasons; most have gone back to their native countries, though there is some evidence that more than 30 have shown
up as combatants in Iraq and Afghanistan and some have killed innocent people. If Guantánamo closes down, it's
unclear what will happen to its 270 detainees.

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Whoever wins the presidency in November will be under pressure to make sure that those detainees considered most
dangerous (whoever they may be) stay locked up, and it's not at all clear any U.S. state will want to accept them as
inmates. Rather than allow future captives legal rights, the military may choose to detain them on bases far from the
United States. The Supreme Court was silent on whether its writ runs to these foreign bases.

Indeed, a host of questions remain to be resolved. What kind of rights should detainees have? Will they have access
to secret evidence to be used against them? Should they be able to compel American soldiers or foreign nationals to
leave the battlefield to testify against them in person? Can they summon friends and neighbors from foreign lands to
testify to their innocence? The only clear outcome is the certainty of enduring confusion: by trying to sidestep the
most basic legal protections for detainees at the outset, the Bush administration guaranteed years of legal wrangling.

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 APPENDIX - AMERICAN SPECTATOR ARTICLE
Lord Kennedy

John Tabin

June 13, 2008

As the swing vote on a polarized United States Supreme Court, Justice Anthony Kennedy is among the most
powerful men in the country.
With yesterday's 5-4 decision in Boumediene v. Bush, Kennedy, who authored the majority opinion, showed that
not only is he very comfortable with power, he is also intent on shoring up and expanding the power of the federal
judiciary system that he sits atop.

The case dealt with alien enemy combatants held at Guantanamo Bay Naval Base, located on a patch of Cuban soil
leased by the US since 1898. The quirky nature of the territory raises questions about the reach of the Constitution
there.

In Boumediene, the Kennedy-led majority concluded that prisoners held at Guantanamo have the right under the
Constitution to petition for a writ of habeas corpus -- that is, to petition for a release -- under the Suspension Clause
("The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the
public safety may require it").

Justice Antonin Scalia argues fairly persuasively in his dissent that it this is an incorrect reading of the precedent and
history surrounding habeas corpus. But the Kennedy-led majority does more than merely give detainees a
mechanism for challenging their detention.

The Military Commissions Act and the Detainee Treatment Act already provide such a mechanism, which Chief
Justice John Roberts elaborates on in his dissent. (Scalia and Roberts joined each other's dissents, and Clarence
Thomas and Samuel Alito joined both dissents.) What the majority has done is give detainees the right to file a
habeas petition in civilian federal court.

This is bound to cause a lot of problems that the MCA and DTA were designed to avoid. The whole purpose of these
laws was to avoid habeas petitions in open court. They established the Combatant Status Review Tribunal (CSRT)
for detainees to appeal to, and gave the DC Circuit Court jurisdiction over appeals from the CSRT. This system has
yet to be tested, as detainee lawyers have preferred to file federal lawsuits to circumvent the tribunal system, a tactic
that has now succeeded.

The Military Commissions Act was passed in the wake of Hamdan v. Rumsfeld, in which, as Scalia points out, four
of the five justices in the Boumediene majority joined an opinion in stating that "Nothing prevents the President
from returning to Congress to seek the authority [for trial by military commission] he believes necessary."

Adds Scalia, after quoting this: "Turns out they were just kidding."

INDEED, KENNEDY and the majority seem dead-set against reading the statutory law in a way that will satisfy
them. "To hold that the detainees at Guantanamo may, under the DTA, challenge the President's legal authority to
detain them, contest the CSRT's findings of fact, supplement the record on review with newly discovered or
previously unavailable evidence, and request an order of release would come close to reinstating the §2241 habeas

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corpus process [that is, the standard process for noncombatant American citizens] Congress sought to deny them,"
writes Kennedy.

"In other words," responds Roberts, "any interpretation of the statute that would make it an adequate substitute for
habeas must be rejected, because Congress could not possibly have intended to enact an adequate substitute for
habeas."

Of course, an adequate substitute for habeas is exactly what Congress intended to enact. The goal was to find a
Constitutionally acceptable framework for trying combatants without the constraints and dangers of civilian court.

One classic example of what can go wrong, it came out in open court during the 1995 prosecution of Omar Abdel
Rahman for the first World Trade Center bombing that US authorities were monitoring terrorists' cell phones.
Terrorists promptly stopped using them.

Kennedy et al. punt on what to do about issues like that, leaving it to the lower courts to figure out. "The majority
merely replaces a review system designed by the people's representatives with a set of shapeless procedures to be
defined by federal courts at some future date," writes Roberts. "One cannot help but think...that this decision is not
really about the detainees at all, but about control of federal policy regarding enemy combatants."

Scalia is blunter: "What drives today's decision is neither the meaning of the Suspension Clause, nor the principles
of our precedents, but rather an inflated notion of judicial supremacy."

In an already much-quoted passage, Scalia writes that this decision "will almost certainly cause more Americans to
be killed." He closes his dissent with the assertion that "The Nation will live to regret what the Court has done
today."

He's probably right. But Anthony Kennedy is Lord of the Judiciary, and nothing can stop him when he's intent on
expanding his fiefdom.

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 APPENDIX – TIME MAGAZINE ARTICLE
What the Gitmo Ruling Means

Adam Zagorin

June 12, 2008

The Supreme Court's 5-4 decision Thursday asserting that foreign terrorist suspects held at Guantánamo have an
inherent constitutional right to challenge their detention in American courts marks a historic rebalancing of powers
between the Executive, Congress and the judiciary — one that many critics believe is a long overdue correction after
years of Executive overreach by the Bush Administration. But the ruling's precise practical impact remains unclear
and may be relatively slight on the military trials under way at Guantánamo.

"The laws and Constitution are designed to survive, and remain in force, in extraordinary times," Justice Anthony
M. Kennedy wrote for the majority in the case known as Boumediene v. Bush. "To hold that the political branches
may switch the Constitution on or off at will would lead to a regime in which they, not this court, say 'what the law
is,' " Kennedy added.

Justices John Paul Stevens, Stephen G. Breyer, Ruth Bader Ginsburg and David H. Souter joined Kennedy's
opinion, against a conservative minority led by Chief Justice John G. Roberts Jr. as well as Samuel A. Alito Jr.,
Antonin Scalia and Clarence Thomas.

The decision marked the fourth major legal defeat for the Bush Administration on the issue of rights for foreign
detainees, as the court rejected arguments that protections provided by the Detainee Treatment Act of 2005 and the
Military Commissions Act of 2006 adequately safeguard the rights of prisoners designated "unlawful enemy
combatants" by the Administration.

Speaking during the Rome stop of his European tour, President Bush responded, "We'll abide by the court's
decision. That doesn't mean I have to agree with it."

Presidential candidate John McCain, a key author of the Military Commissions Act of 2006 that was overturned by
the court, indicated he had not yet had time to scrutinize the ruling, but that "it obviously concerns me ... These are
unlawful combatants; they're not American citizens."

Chief Justice Roberts criticized the majority for ruling unconstitutional "the most generous set of procedural
protections ever afforded aliens detained by this country as enemy combatants." That, he continued, would open the
majority to charges of "judicial activism."

Justice Scalia added that the U.S. is "at war with radical Islamists," and that the Boumediene ruling "will almost
certainly cause more Americans to get killed." Scalia warned, "The nation will live to regret what the court has done
today."

But civil libertarians, human rights activists and lawyers who have been challenging the Bush Administration's
stance on Guantánamo for years hailed the Supreme Court decision as a major step forward. "The court has brought
the Constitution home from exile," said Professor Eric M. Freedman, Maurice Deane Distinguished Professor of
Constitutional Law at Hofstra and a longtime adviser to lawyers representing prisoners at Guantánamo. "Everyone
who believes that America is a country devoted to the rule of law should celebrate because this ruling says that the
Executive needs to be accountable to a neutral judicial forum in its decisions to imprison people — and that is the
basic restraint on tyranny that animated the American Revolution."

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For all its historic significance, it remains to be seen what practical consequences the Supreme Court ruling will
have. According to Shayana Kadidal, senior attorney at the Center for Constitutional Rights, a nonprofit whose
lawyers serve as sole or joint counsel for more than 200 prisoners at Guantánamo, "The impact of this ruling on
military commissions trying Khalid Sheikh Mohammed and others may very well be negligible, because federal
courts have always been reluctant to stop trials, including military trials, in mid-process."

Those Guantánamo prisoners facing charges now, or in the future, will have the right to file their own habeas corpus
petitions in U.S. courts, challenging the basis of their detention. But such challenges will probably proceed in
parallel with their military-commission trials at Guantánamo, some of which are under way.

For approximately 190 prisoners at the base who are never expected to be charged, the ruling could bring a change.
One-third of them have already been cleared for release but are being held until a country can be found to accept
them. Roughly 50 are considered refugees, meaning they might face torture or other mistreatment if they are
returned to their countries of origin. Others are still being held as a possible danger to the U.S., in case they decide
to return to the battlefield. Lawyers for detainees in these categories are likely to file cases under the new ruling in
the hope of speeding their release.

The Boumediene case takes its name from Lakhdar Boumediene, one of six Algerians who became legal residents of
Bosnia in the 1990s. Bosnian police arrested them shortly after 9/11, fearing they might be plotting to attack the U.S.
embassy in the country. Three months after that, the Supreme Court of Bosnia and Herzegovina ordered their release
for lack of evidence. But no sooner were they free than police in Bosnia took them into custody and handed them off
to the America military. From there, they ended up in Guantánamo.

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 APPENDIX – NATIONAL REVIEW ARTICLE

A Quick Way Forward After Boumediene

By Andrew C. McCarthy

June 16, 2008

It is difficult to single out the most outrageous aspect of Justice Anthony Kennedy’s majority opinion in the Supreme
Court’s cataclysmic Boumediene ruling last Thursday: The reckless vesting of constitutional rights in aliens whose
only connection with our body politic is their bloody jihad against Americans; the roughshod ride over binding
precedent to accomplish that feat; or the smug arrogance perfectly captured by dissenting Chief Justice John
Roberts’s description of a “constitutional bait and switch” — a Court that first beseeches the political branches to
enact a statutory procedure for handling combatant detentions, and then, once a thoughtful law is compliantly
passed, invalidates the effort for its failure to satisfy the eccentric pr

edilections of five lawyers.

What is done, however, is done.

HANDWRITING ON THE WALL

It should never have come to this. Ever since the Bush administration quite rightly called for a new enforcement
paradigm after the 9/11 attacks — the criminal-justice system having proved itself grossly inadequate to protect
national security during the Nineties — it has been apparent that shifting to a pure military system was problematic.

The war on terror is not like other wars. No war has a determinate end, but this one does not have a foreseeable
ending scenario. With radical Islam, there will be no treaty, no terms of surrender, no conquering enemy territory.
Instead, there is only vigilance until the enemy’s capacity to project power is quelled. Because of that, strict
application of the laws of war — which permit indefinite detention until war’s end — strikes our influential legal
elites as unduly onerous.

Our enemies, moreover, are terrorists who operate in the shadows, in civilian garb not military insignia. In a just
world, that would inure to their detriment. In the world we inhabit, it perversely benefits them by sowing doubt
about their status. It makes plausible the possibility that we have scooped up at least some people in error.

The public anger over 9/11 has faded. With a relentless campaign, fired by sympathetic media coverage, our legal
elites have succeeded in raising popular concerns about the specter of innocents being held in perpetuity at the whim
of the executive, without an opportunity to challenge their detention before an independent judge.

This was more of a political challenge than a legal one. Long ago, Congress and the administration should have
joined forces to forge a comprehensive system that would answer those concerns. To their credit, the political
branches did at least try to shore up the military detention system by providing, for the first time in history, enemy
access to a civilian court — the D.C. Circuit federal appeals court — so jihadists could challenge the completed
military proceedings. It is beyond arrogance that five Supreme Court justices did not allow that system to work; that,
to bask in international huzzahs, they scrapped it before the D.C. Circuit could wrestle with a single case on a
concrete record — before the tribunals could prove they were not kangaroo courts after all.

But let’s face it: The handwriting for what happened last Thursday has been on the wall since 2004. That’s when the
Court, in a fit of imperious recklessness nearly the equal of Boumediene, decided in Rasul v. Bush that the jihadists
had statutory habeas corpus rights. The handwriting was brought into starker relief in 2006 when,

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in Hamdan v. Rumsfeld, the Court selectively mined and tortured the language of the Geneva Conventions to vest
the jihadists with trial rights under Geneva’s Common Article 3.

This has been coming at us like a runaway freight train. Congress and the administration should have seen it and
stopped it. They failed to act, so the cure will be harder now — though we must, for the sake of our security, press
ahead with a legislative cure.

THE FOLLY OF PUTTING COURTS IN CHARGE

Why harder? Well, until last Thursday, alien enemy combatants had no American constitutional rights. Their rights
were limited to whatever the political branches, chiefly Congress, chose to grant them. If Congress, with the
administration’s help, had undertaken to devise a comprehensive system of rules and procedures for terrorist
detention and trial — what I have several times since 2004 proposed as a “national-security court” (see,
e.g., here, here and here — NR subscription required for the last one) — it is very likely that the Supreme Court
would have stayed its hand. Indeed, the justices originally declined to hear the Boumediene case before changing
their minds at the end of the 2007 term, as public criticism of the military system mounted.

But the political branches ignored the neon signs. Now the Court has decided that the combatants have constitutional
habeas rights. If you can follow this, the bloc of liberal justices reasons that the framers designed our fundamental
law to empower enemies of the American people to use the American people’s courts as a weapon to compel the
American people’s commander-in-chief to justify his actions during a war overwhelmingly authorized by the
American people’s elected representatives . . . even as those enemies continue killing Americans.

The upshot of the ruling is that the judiciary, not Congress, could now become the master of deciding what rights
our enemies have in wartime. When rights are based on the Constitution, rather than on statutes, Congress may not
reduce them. Courts assert the power to define their ultimate parameters.

In the context of war powers, powers that are political, not legal, that would be a disaster. Courts are not responsible
for our national security. Their task is to ensure that parties litigating legal cases before them are afforded due
process. Moreover, the judicial tendency, when the United States is a party, is to bend over backwards to eliminate
not just the reality but the mere perception of unfairness to the adversary — even if that adversary happens to be a
ruthless, incorrigible enemy of the United States who would, given his druthers, torch the Constitution and install
freedom-hating sharia law.

Worse, while waging war is a society’s ultimate political act, and thus suited for management only by the society’s
politically accountable officials, judges are insulated from the political process. They needn’t fear being removed or
voted out of office if they impose a regime that is overly solicitous of terrorist rights and heedless of national
security. They can do what Leftist politicians would do if they weren’t so worried about the ballot box.

This perfect storm of institutional responsibility, natural proclivity, and political immunity hardwires judges to
ratchet up due process demands over time. In the warfare context, the price will be paid in American lives.

The most reprehensible aspect of the Boumediene ruling is thus Justice Kennedy’s diktat that all “questions
regarding the legality of the detention [of combatants] are to be resolved in the first instance by the District Court”
— as if Congress, the law writing branch of our government, had nothing to say about them.

Congress must ignore that brazen overstatement. Boumediene is a terrible decision, but all it means for the moment
is that the jihadists held at Guantanamo Bay have been given the opportunity to press their cases — i.e., to seek their
release from custody — in the federal district courts. The combatants have not been ordered released, and the
narrow majority did not presume to prescribe a procedure for how the district courts should handle those cases.

THE WAY FORWARD

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That is the job of Congress, and it must act now. Bear in mind, even in the civilian-justice system, where the judicial
competence is generally undeniable, it is Congress that enacts rules of procedure and evidence. We do not leave
judges free to make it up as they go along. How much less should we do so with respect to combatant detention —
a war power as to which judges have no institutional competence?

There may not be time now for ambitious, comprehensive projects like sculpting a national-security
court. Boumediene has produced a crisis that demands an immediate fix. But Congress could very quickly
accomplish the more modest task of enacting rules and procedures for combatant habeas proceedings. In fact, there
is already a model of sorts.

Long ago, our lawmakers enacted a statutory scheme to control pretrial detention in federal criminal cases. It is
codified at Section 3142 of Title 18, United States Code. In cases involving the most serious charges and defendants
with the most vicious criminal histories, Congress has directed courts to grant the government a presumption in
favor of detention. In detention hearings, furthermore, the law permits the parties to proceed by offering hearsay and
attorney proffers of evidence; the presentation of witnesses is rare, and needn’t be allowed at all. In addition, a court
considering detention is entitled to rely on any information developed in other proceedings — including on the fact
that a grand jury has found probable cause that the defendant committed the alleged crime.

Mind you, that is in civilian criminal proceedings where the defendant is presumed innocent. We have long
permitted lengthy periods of incarceration without trial, much less conviction, and this system has repeatedly been
upheld in the face of all manner of constitutional challenge.

Obviously, being held as an alien enemy combatant in a terrorist war against the United States is a far more serious
matter than even the drug and violent crimes (to say nothing of flight risks posed by foreign defendants) that
routinely result in civilian pretrial detention. Thus, Congress could quickly enact a statute requiring the district
courts in combatant habeas cases to afford the commander-in-chief a presumption mandating detention. That is, if
the government established a rational basis for believing the detainee was an enemy combatant, he would be ordered
detained unless the detainee proved beyond a reasonable doubt that he was not an enemy combatant.

Congress could provide for the presentation of evidence by hearsay, proffer, and affidavit — with a directive that the
court may not compel the government (particularly, the military and intelligence community) to produce witnesses
for testimony in court. It could provide for classified intelligence to be presented to the judge ex parte, with only a
non-classified summary provided to the combatant. It could require the court to give deference during wartime to the
conclusion of combatant status review tribunals already conducted by the military (allowing judges to disregard
those conclusions only upon a showing that the conclusion was irrational — the same standard that compels federal
appeals courts, in every single civilian criminal case, to refrain from disturbing a trial court’s findings of fact).

To promote efficiency, since the issues in these cases are likely to be repetitive, Congress could also direct that all
petitions be filed in the District of Columbia, with all appeals to the D.C. Circuit and, ultimately, the Supreme Court.
Though I would prefer to see the cases directed to a specialized court, it is not practical to expect one could be
designed in the short-term. We need a solution that can be implemented tomorrow.

If Congress were to enact such a law, patterned on the pretrial detention statute but properly imposing greater
burdens on petitioners who are alleged to be wartime enemies rather than mere criminals, the result would be that
only the most egregious miscarriage of justice would result in a finding that a detainee was not an enemy combatant.
That is as it should be — especially given that (a) alien enemy combatants have never before been afforded such
rights and (b) only four years ago, in Hamdi v. Rumsfeld, the Supreme Court itself said judicial deference to the
commander-in-chief was due even if an alleged combatant was an American citizen.

We must, naturally, anticipate that the federal courts will find the occasional, egregious miscarriage of justice. Thus
Congress should also provide for what would happen to such a combatant. In short, he should be detained until he
can be either repatriated to his native country or sent to a country of our choosing which is willing to receive him;
under no circumstances should he be released into the United States.

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On that score, we must be mindful of an oft-overlooked fact: Unlike American citizens who file habeas-corpus
claims challenging their detention after conviction in civilian cases, the alien enemy combatants making war on us
are not relying solely — or even principally — on legal proceedings. To the contrary, they have governments
aggressively pursuing their release by diplomatic means. That is why the detainee population at Gitmo is down to
about 270 when once it was over 800.

Naturally, Sen. Barack Obama and other hard-Left Democrats are thrilled with Boumediene. They are enthused by
the prospect that federal judges, if left to their own devices, could turn these proceedings into full-blown trials, with
all the constitutional protections they would gladly give our enemies if they thought voters would let them get away
with it.

We shouldn’t let them get away with it.

Unduly empowered by the bedlam of unguided judicial proceedings, many jihadists will be freed. If that happens,
Americans will be killed. It is that stark, and it should be that intolerable. It is the solemn responsibility of our
lawmakers to prevent that outcome. With an election looming, with nearly 200,000 young Americans putting their
lives on the line, and with an enemy working energetically to reprise 9/11, every member of Congress should be
challenged to tell us where he or she stands on Boumediene and its aftermath.

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