Legal Commentary

Not long after the traveling soap opera that was the Roger Clemens/steroids hearing ended this afternoon, the Senate voted 51-45 to approve the Intelligence Authorization bill, complete with its ban on CIA waterboarding (et al.). [See Marty's analysis here.] Other than timing, one might conclude that these two events have nothing in common... But the more I think about it, the less sure I am (and not just because I'm a Mets fan).

What has always bothered me about the Clemens business is that the media, and therefore many of us (or is it the other way around), are preoccupied with the he-said/he-said. Is Clemens lying? Is McNamee lying? Is Pettitte lying? Will any of them face perjury charges? And in focusing on this question (to which we may well never know the answer), we've been distracted from the bigger, more important questions raised by the Mitchell Report, flawed though it may be: How is baseball going to thoroughly clean up its act and take the drug problem seriously? How will the game repair the damage it's done to generations of high schoolers and middle schoolers who now have an object lesson in doing whatever it takes to get ahead? Why should coaches tell their players not to take steroids, especially when they're untraceable? Clemens wasn't in a position to answer those questions today any more than McNamee was. And unless the Committee was prepared to call Bud Selig, the Commissioner of the NCAA, and college and high school coaches as witnesses, these are issues Congress simply won't come anywhere near addressing.

Thus, the analogy to waterboarding. What has frustrated me about the waterboarding debate (which it seems Justice Scalia has now jumped into) isn't a belief that waterboarding is unworthy of our attention. To the contrary, I think it is important to understand just how inhumane waterboarding is, and in that regard, the media attention of the past few months strikes me as balance-positive. But there's a lot more hiding under the surface -- important questions about where we are going as a country and what limits we really think there are (or aren't) on how we treat those we suspect to be terrorists. Questions about who should be making these decisions, and what role the courts should have in reviewing them. And we're just not asking those questions. And we're not wondering whether there are fundamental values at stake here. We're just fighting over how serious and inhumane waterboarding really "is," the implication of which is that, for the unconvinced, there's nothing more to discuss.

Just as waterboarding became something of a distraction in the detainee treatment debate, so too has Roger Clemens become a distraction in the steroids-in-baseball debate. Ultimately, it's not that I don't care whether Clemens is telling the truth or not. As a die-hard baseball fan, I most certainly do. But I don't see how his veracity implicates the larger debate, one way or the other.

And in both cases, methinks, it's the larger conversation that we need to be having right now, not the smaller one.