Legal Blinkers, Moral Hazards

Summary

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Amicus With Dahlia Lithwick

Episode: Legal Blinkers, Moral Hazards

Release Date: January 31, 2026
Guest: Joseph Margulies (Professor of Government at Cornell; civil rights attorney, writer)

Episode Overview

In this episode, host Dahlia Lithwick and guest Joseph Margulies confront the dangers of relying on legal frameworks alone—without moral clarity or public conscience—especially in the context of alarming government overreach, abuses of power, and the blurring of legality and morality post-9/11. Drawing on Margulies’ legal career and recent writings, they examine how moral voices can, and must, resist legalistic justifications for cruelty, authoritarianism, and the steady normalization of grave harm—ranging from torture to family separation and state violence. The conversation criticizes the dominance of “law speak,” explores the legacy of the war on terror, and calls for rekindling collective, moral outrage.

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Key Discussion Points & Insights

1. The Limits of Legal Reasoning and the Silencing of Moral Voices

• Margulies opens with a powerful critique: Americans have allowed "the dominance of law speak gradually silence our moral voice" ([01:13]).
• The law, originally meant to protect rights, is now sometimes wielded to erase them. Legal memos and executive orders are used to justify the unjustifiable—whether torture, extrajudicial killings, or family separations ([02:12]).
• Notable quote:

  “The question that we all need to ask now ought not be framed as, ‘Is that lawful?’ It ought to be framed as, ‘Is that right?’” – Joseph Margulies ([01:48])

2. Distinguishing Law from Morality

• Lithwick challenges Margulies: Morality is subjective; law is, in theory, objective. Historically, morality has justified wrongs (like segregation laws) ([10:06]).
• Margulies contends that legal systems, while presented as neutral and objective, are often just as contingent and manipulable as moral arguments. Legal opinions can be manufactured for any position—as exemplified by the Bush-era “torture memos” ([11:34], [13:00]).
• Notable quote:

  “Those lawyers or law students who think ‘I went into the law because it’s certain, it’s definite’—well, get over yourself.” – Joseph Margulies ([14:53])

3. The Essential Role of Popular Moral Movements

• Margulies stresses that legal victories require a “moral claim” from the populace; courts and legislatures only respond when driven by mass outrage and clarity ([16:17]).
• Example: Protests in Minneapolis and elsewhere arise not from legal argument, but "because there are tens of thousands of people, ordinary citizens...who wake up and are registering this in their moral voice" ([16:57]).
• Notable quote:

  “Whatever success we get in the law is only happening because of that [popular, moral voice].” – Joseph Margulies ([17:51])

4. How Power Rebrands Immorality as Legality

• The Trump administration (and previous governments) craft memos/executive orders to label dissenters as "domestic terrorists," recasting moral opposition as criminal or unlawful ([24:31], [25:40]).
• Margulies: Simply producing legal rationalizations is effective when there’s no energized moral opposition ([26:14]).
• Laws and legal frameworks can be twisted unless there is a countervailing moral claim in the public.

5. The Post-9/11 Legacy: ‘911 Forever’ and Permanent ‘States of Exception’

• Margulies draws a direct line from post-9/11 legal changes—torture, surveillance, “enhanced interrogation,” expanded border policing—to today’s normalizations of cruelty ([28:12]).
• Key move: Reframing problems as ‘war’ rather than ‘crime’ allows governments to justify draconian acts ([29:57]).
• Demonization of “the other” and the obsession with border security have turned everywhere—in policy and metaphor—into a kind of front line or battle zone ([33:12], [35:03]).
• Notable quote:

  “None of the real horrors...could have been possible without a thorough embrace of demonization, without a willingness to cast some people outside the sphere of human regard.” – Joseph Margulies ([29:57])

6. The Power (and Danger) of Language

• Language shapes both law and public morality: calling ICE actions a “war,” speaking of “borders everywhere,” or using the term “terrorist” for dissenters gradually dehumanizes and erases moral complexity ([39:46], [40:52]).
• Supreme Court’s rare, explicit use of “torture” in rulings is significant, even when legal remedies are denied—it affirms moral truths ([41:40], [44:10]).
• Notable quote:

  “What you did to my clients was a moral obscenity. You tortured my client. And that matters.” – Joseph Margulies ([45:18])

7. Resisting Moral Numbness and Weariness

• Lithwick and Margulies reflect on the “flood the zone” strategy (attributed to Steve Bannon) to overwhelm public conscience through constant outrage ([47:51]).
• Margulies: Despite exhaustion, people’s collective voice is awakening—protests, declining approval of cruel policies, and outrage are rising. Change happens only through collective recognition and action ([47:51], [50:26]).
• Notable quote:

  “The law is never enough by itself. If you do not have the moral claim behind it...the law is an empty vow.” – Joseph Margulies ([51:05])

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Memorable Quotes with Timestamps

• [01:13] Joseph Margulies: “We let the dominance of law speak gradually silence our moral voice. Stop. Look out. Damn. I'm just angry…I feel like we're performing CPR on what may already be a corpse called the Constitution.”
• [01:48] Joseph Margulies: “The question that we all need to ask now ought not be framed as is that lawful? It ought to be framed as is that right?”
• [11:34] Dahlia Lithwick: “[Morality is] not just subjective and inchoate, but morality was used to justify segregation…[the] story we tell about the framers [is] creating a church of the law...agreeing on certain principles that are legal and not moral.”
• [14:53] Joseph Margulies: “Lawyers who think ‘I went into the law because it’s certain, it’s definite. Well, get over yourself.’”
• [16:57] Joseph Margulies: “[Protesters] are registering this in their moral voice. I will not allow this to happen. This is wrong and I'm going to brave 20 below weather…I hope they take the moment to recognize how important what they're doing is.”
• [24:31] Dahlia Lithwick: "[The Trump administration says] whether it's secret or whether it's public, we can say all sorts of batshit stuff and then we can say, no, no, this is rooted in the law. …That's the slippage."
• [29:57] Joseph Margulies: “None of the real horrors that took place post 9/11 or that are taking place now could have been possible without a thorough embrace of demonization…We can do what we want with that person because they are not us.”
• [40:54] Joseph Margulies: "In theater. It’s a war zone. ... Language is extremely important."
• [45:18] Joseph Margulies: “What you did to my clients was a moral obscenity. You tortured my client. And that matters.”
• [51:05] Joseph Margulies: “The law is never enough by itself...the law is an empty vow.”

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Timestamps for Key Segments

• [01:13] – Margulies opens with the silencing of America's moral voice by law speak
• [06:13] – Lithwick introduces Margulies’ background & Boston Review piece
• [06:52] – Margulies on impunity and the need for moral outrage
• [10:06] – Debate: is morality too subjective?
• [13:00] – The futility of legal debates as the sole arbiter
• [16:17] – The interplay between legal action and moral, popular activism
• [24:31] – The slippage between legal memos and radical policy
• [28:12] – Lessons from the post-9/11 era and permanent "war"
• [35:03] – 'Borders everywhere' and the logic of contamination
• [39:46] – The importance of language in shaping legality and morality
• [47:51] – How to maintain moral clarity amid moral fatigue

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Final Takeaways

• Law alone is insufficient: In the absence of public, moral outcry—or when the populace is silenced or numbed by endless legalese—legal protections are easily subverted.
• History’s lesson: Real change is driven by collective moral action, not just courtroom arguments.
• Moral vigilance needed: Margulies and Lithwick urge ongoing, vocal moral opposition to injustice—legal or otherwise—lest normalization take root.
• Language matters: Words—legal, political, or everyday—shape both what is seen as possible, and what becomes permissible.

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Listen For…

• The challenge to "legal blinkers"—the false comfort that legality always equals justice
• A rigorous call for reclaiming plain moral language: “This is an abomination,” “It is unacceptable.”
• Ongoing relevance of post-9/11 legal changes to today’s state violence and family separation
• The hope and necessity of popular movements—protests, outrage, and collective conscience—as catalysts for real change

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Transcript

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[Dahlia Lithwick]

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[Dahlia Lithwick]

And bake meals and these things called meal kits.

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[Joseph Margulies]

We let the dominance of law speak gradually silence our moral voice. Stop. Look out. Damn. I'm just angry. I'm seven years old and I'm angry. This is a preschool, you stupid mother. Shane, Shane. This is what happens when you have ICE in Minneapolis. They don't know how to do their jobs.

[Dahlia Lithwick]

Please watch what's happening here.

[Joseph Margulies]

I feel like we're performing CPR on what may already be a corpse called the Constitution. The question that we all need to ask now ought not be framed as is that lawful? It ought to be framed as is that right?

[Dahlia Lithwick]

When we say lawless or unlawful, what do we even mean? As in murdering people on boats in the Caribbean and the Pacific in violation of international law? Or attacking a sovereign nation and kidnapping their head of state. Or as in masked agents of the state repeatedly shooting a nonviolent disarmed man on the ground, executing him, and then clapping for themselves? Of course that kind of conduct is unlawful, as are routine violations of the hundreds of statutes that prevent a president from profiting off his office or self dealing or giving boondoggles to his cronies or running for a third term, or sending in the FBI to seize ballots from the 2020 election in Georgia. But just as we may identify all of this conduct as unlawful, there are surely memoranda out there. Some of them are secret, some now public, some not yet crafted, all of them written by administration lawyers somewhere in the bowels of the Trump regime who are willing to say that all of these things are in fact now lawful. We keep talking about the law as the thing that protects our rights, but what happens when it becomes the thing that erases them? In the fog of tear gas and grief and courage in Minnesota, the language and indeed the very practice of law is being usurped by new forms of clarity, clarity with a distinctly moral dimension. The question can no longer be is it legal? Or even can it be rendered lawful? But rather whether a nation of laws and not men is willing to allow it. We're going to be digging into these questions this week, first with a litigator and writer who represented torture victims and rendition defendants after 911 and came to view the war on terror with a clear sense that policies that may be styled as legal may still be substantively and morally wrong. Professor Joseph Margulies will join me to discuss the ways moral fatigue and blind faith in the law are particularly dangerous right now. And later, our Slate plus members will have full access to my conversation with an immigration lawyer who's raising the alarm about Trump 2.0's version of family separation. Kristin Clarence worked at the detention center where 5 year old Liam Ramos is now being held, and she is deeply concerned about the many children who are not visible to us in Trump's anti immigrant reign of chaos. There's a real disconnect between these individuals who are in our communities. They're our neighbors. They're following the letter of the law as we understood it a year ago, a month ago, a week ago. And that doesn't protect them from this type of really aggressive and egregious enforcement that at this moment has fallen on.

[Joseph Margulies]

The shoulders of this sweet faced child.

[Dahlia Lithwick]

That Amicus episode is for Slate plus members. Find out how to listen at the end of this show. But first on morals and lawyers. Joseph Margulies is a professor of the Practice of government at Cornell University. He's a writer, a litigator and a teacher. As a civil rights lawyer, he was counsel of record in Rasool v. Bush, which afforded Guantanamo detainees the right to challenge their detentions in federal court. His books include Guantanamo and the Abuse of Presidential Power and what Changed when everything changed. 911 and the making of National Identity. Last September, the Boston Review published his Arresting the Moral Stupefaction of the American Public. The piece was ostensibly about the boat strikes, but it has been ringing in my ears ever since, and especially since the state sanctioned summary executions of American citizens in Minneapolis this month. So, Joe, first of all, welcome to Amicus.

[Joseph Margulies]

Thank you. Thanks for having me.

[Dahlia Lithwick]

And I wonder if we can just begin with the title of your Boston Review piece. You draw out the fact that lawyers are extremely uneasy about invoking the language of morality. Morality is either too malleable or it's just sanctimonious and annoying. But your point is? I think that the law disaggregated from morality becomes just a endless series of hollow CYA memos to be deployed by any administration that they can use to justify absolutely anything from torture at Gitmo to blowing up fishing vessels in the Caribbean.

[Joseph Margulies]

Well, thanks. I thought that was a really terrific introduction. Not what you said about me, but what you said about that which is taking place. And recognizing that the question that we all need to ask now about what's taking place in Minneapolis, and not simply in Minneapolis, but most pointedly in Minneapolis, ought not be framed as is that lawful? It ought to be framed as is that Right. Are we going to allow a masked, heavily armed secret police force to maraud through the city, all but unchecked, checked only by the voluntary surveillance to the extent they are checked by plain citizens at their peril, and when they do. Wrong subject. At least it appears at this point, to absolute impunity. Right. They enjoy absolute impunity. And those are profoundly moral questions. Those are moral judgments. Right. And so have we lost the capacity to say, this is simply wrong. This is a grotesque obscenity and cannot be allowed to continue? You know, is it a violation of the 10th Amendment? That's what they're litigating in front of. Judge Menendez Is ICE violating judicial orders? Yes. There's 96 of them. Lawyers are fighting that out. No, no. Stop it. Stop it. This is a horrible, grotesque, ongoing wrong, and that's the level at which we need to engage. And you ask, why is it that we substitute what I call our legal voice for our moral voice? Well, you know, it goes back to, as a country, a country that purports to worship, and I use that term advisedly, the rule of law. We tend to believe that legality establishes rightness, right establishes legitimacy. So when a question is posed, can they do that? The answer is given usually in terms of yes, of course, it's all perfectly legal. And so we over time lose the capacity because we simply don't engage these muscles to render moral objections, even when what is being done is unspeakably grotesque. And the piece in Boston Review, which, as you say, was written back in September, so it was at that point, quote, all we knew was that they were murdering boatloads of presumptively innocent people on the open seas, is just a call for people to say, wait, wait, don't go down the barren, empty, vacuous streets of sterile debates about the law. Well, international humanitarian law, human rights law. Well, I don't know, it's complicated. No, no, no, no. Stop it, stop it. This is grotesquely wrong. And that's what people need to know and that's what people need to say. And never is that more clear than this week's events and week's events in Minneapolis.

[Dahlia Lithwick]

So I read your piece with my lawyer, glasses on, and I had two sort of quick and dirty objections that I'm gonna try to give voice to. And I want you to tell me why I'm getting it wrong. One is morality, as you and I both know, is not just subjective and inchoate, but morality was used to justify segregation, right? The anti miscegenation laws were rooted in morality. So there is a sense morality isn't just really mutable and manipulatable. And in a good sense, I think it evolves, right? So that which was considered immoral is now urgently moral. But also, and this is, I think, the sort of Langdelian legal education part of me squawking that there can't be an agreement about what is moral. And that what we like about the law, particularly in America, as you say, is the story we tell about the framers creating a church of the law, creating a religious document that is the Constitution, and then agreeing on certain principles that are legal and not moral. And I think that when I read your piece and I agreed emphatically with it, I found myself slightly sticking on the point of how are we ever going to come to some kind of consensus or scientific agreement about what is moral? And how should we think about the fact that what is moral today is egregiously immoral in 10 years?

[Joseph Margulies]

So I think that is exactly the right critique. And of course, I'm with you on that. But I have a couple of responses. And you know, it could be they're not sufficient, but in the interest of getting this conversation, because what really matters is that we have these conversations, right? One, I agree with you. I love the way you describe it as, you know, the church of the Constitution. So it's not a matter of whether we're going to have a kind of quasi religious worship of a thing, a body of principles. It's whether it's going to be something we call law and written down in the Constitution, or whether it's going to be something, what I call the moral voice that is worked out by the people in contestations over what society does. So we're going to do that. The myth is that by writing it down in a Constitution, we will achieve some consensus. And the myth is that that consensus will be desirable. It will be reflective of society's best impulses. That's the sort of evolving Constitution view. Or it will be reflective of what, quote the founders, whoever they are, intended. It will have some core that is knowable and distinct. But of course, this whole debate shows that that's just not true. That's just not true. The whole purpose of the kind of dense, esoteric, footnote, studded legal memos that they write is to create the appearance of the law so that someone can say, you see, I have the better of the legal argument. And since we are a society that only seems to care about who wins that legal debate, we're done here. You have an argument? I have an argument. Well, you know, the debate goes no further. Lawyers seem to disagree. But U.S. lawyers in the Justice Department, U.S. lawyers in the Trump administration, U.S. law, or the Bush administration before that, we have our document that says, this is good, and that's just going to have to serve for people. And unfortunately, if you engage in only in law speak, you're done. You have nothing to say. Well, what you can do is even hold up an opposing memo. The best example of this is the memos that John Yoo wrote that purported to justify torture. Let's just call it what it is, right? The Supreme Court calls it torture. Let's just call it that. And that is strapping a person with his head lowered on an incline board with his face covered and pouring water up his nose and down his throat and holding him there until he breathes water. And to bring him within sight of his own death. That is the purpose of waterboarding. You are deliberately bringing him within the sight so that he believes that he is about to die. It's that moment of sheer terror. That's what waterboarding is, right? And doing it over and over and over again 86 times in my client's case. No, no, no, that's not torture. Not only is it not torture. It's not illegal. I have a document that says so. Well, if they can always write that, and they can always write that, then this pretense, this myth that it will settle disputes in a fair and neutral way is just gobbledygook, and we shouldn't pretend otherwise. And those lawyers who. Or those law students who think I went into the law because it's certain it's definite. Well, get over yourself.

[Dahlia Lithwick]

I'm hearing what feels like peak frustration with, yes, the John Yoo special. Right. As long as it's not organ failure, it's not torture. Right. And I'm hearing the critique here is that any lawyer, I think you say somewhere, you know, a 1L with a Westlaw account could, you know, magic up a document to justify anything. That can't be the touchstone. But the flip of it, of course, is that we are living in a moment where it's really essential to know what is legal. And as you're noting, judges around the country are drawing very firm lines in the sand and saying, no, that's unlawful, that's illegal. In other words, the thing that you are most worried about, in a weird way, is the thing that is also saving us. Right. Because we have had district court judges and appellate court judges around the country really out on the hustings, sometimes at mortal peril of, you know, threats to them and threats of impeachment, very clearly, saying, know what you're doing is unlawful. You're not, I take it, saying that that is a pointless exercise, that the pushback is, you know, futile, because none of this has meaning. You're saying something subtler than that, right?

[Joseph Margulies]

Yeah. Yeah. No, I'm very glad you asked it that way. Absolutely not. The lesson of history is really clear when you want to achieve progressive social change. Right. We are trying to bend the will of society to reflect a different reality. Right. Achieve a different vision for the world. The law has a role. Going into court, going to Congress, going to your state houses, that has a role. Right? But what we know from decades and decades of experience is that if you don't have a popular movement behind it that speaks in a moral voice and leverages that moral voice, and then lawyers who work with that community to translate that moral voice into a set of legal claims. But first, what matters is the existence of that moral claim, that moral voice, Right. If all you had in Minneapolis were a bunch of lawyers going in and saying, this violates the 10th amendment, well, believe me, you would not get whatever limited movement we are going to have what we are seeing is because there are tens of thousands of people, ordinary citizens, ordinary folks who do not think of themselves as rabble rousers or activists, right, who are appalled, who wake up and are registering this in their moral voice. I will not allow this to happen. This is wrong and I'm going to brave 20 below weather I used to live in Minneapolis. I lived not far from where George Floyd and Renee Goode and Alex Preddy were killed and worked nearby as well as a criminal defense lawyer. When it's cold there, it's cold. It's really right. And that they are doing this, we now know at their peril. It is a great, great inspiration to the rest of the country. I hope they take the moment to recognize how important what they're doing is. And whatever success we get in the law is only happening because of that.

[Dahlia Lithwick]

More in a moment with Joe Margulis.

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[Dahlia Lithwick]

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[Dahlia Lithwick]

Let's return now to my conversation with Professor Joe Margulis. I love what you're saying, Jo, because you're not in fact unbraiding the law from morality. You're actually tethering them really closely together and lashing them together and saying it's not that law is immaterial or irrelevant. You know, I wrote a piece this week where I really do think in some deep, deep sense, some of those folks in Minnesota are actually performing some form of popular constitutionalism where they are standing up for the First Amendment. They are standing up. You and I may disagree, but standing up for the Second Amendment, for the fourth Amendment, for the eighth Amendment, for the fourteenth Amendment. There is something that feels as though it is actually knitting together a moral voice and a legal voice in ways that are almost intuitive and that are not. In fact, someone just wrote a memo that says Go ahead and shoot protesters if you think that they're getting in the way. It is not unlawful. It is very much saying, oh, no, we know in our bones what the law is. And the law is not whatever it is that DHS is instructing you to do.

[Joseph Margulies]

So I agree with that. I don't know what the folks who are. And I'm sure that the answer is there is no single narrative that runs through their head. I don't know whether when they go out there, they think they are defending legal rights or a thing they call the Fourth Amendment or the First Amendment or I don't know whether they can recite the language of the Fourth Amendment, I don't know. Or whether others of them are making purely moral claims. That is, this is an obscenity and I'm not going to let this happen. You are murdering my neighbors. You are shooting in the back, my friends. I'm not going to let you do that. Right. And there may be some combination of both. Right. Because we are trained to think in legal terms. They may think, I'm not going to let you do that. And the way I'm going to keep that from happening is to protest. And I've got a First Amendment right to do that. Right. So we flexibly think in these sort of, unfortunately, in legal terms. My point in this piece is that we let the dominance of law speak gradually silence our moral voice. We no longer have the ability to articulate in plain, clear, clarion terms what you are doing will not be tolerated. A free people will not tolerate what you're doing. Look, I see the video. Here's the video. You can show me all the different versions of the videos. What you have done is murder someone. You've killed him unlawfully. That's what we call murder. Stop it. Stop it. Well, I don't know. We got a right to be there. Here's a memo that says ICE has a right to do what they're doing. Ah, you know, that's more complicated. No, no, no, no, no. It's not more complicated. It's not more complicated. This is murder. And we need to be able to say, this is an abomination. And that's what they're doing by the tens of thousands. It's beautiful. ICE out.

[Dahlia Lithwick]

Joe, I want to take you back to a memo that the Trump White House issued in September that didn't get enough attention at the time. We talked about it a little bit, probably on the show, and it was called Countering Domestic Terrorism and Organized Political Violence. And it's really fascinating because the move is persistently. And you write this about the boat strikes in the Caribbean as well. As long as we put a memo out there, as long as we sign an executive order and we lay out the terms, and whether it's secret or whether it's public, we can say all sorts of batshit stuff and then we can say, no, no, this is rooted in the law. And I think that if we went back and we look at the definition of what a domestic terrorist was in that memo in Sept. September, it's you and I. It says common threads animating the violent conduct include anti Americanism, anti capitalism, anti Christianity, support for the overthrow of the US Government, extremism on migration, race and gender, hostility toward those who hold traditional American views on family, religion, morality, the notion that they were turning that definition into domestic terror and that we all kind of missed it. And that's the thing that's waved around now as the look, it's lawful because we made a law. That's the slippage. You're trying to point out that just because they can point to a lawyer and say, write something that says that if you are hostile toward morality, you are a terrorist, we accede to that. You are saying at our peril. And I think the fact is we don't see it happening because it's invisible.

[Joseph Margulies]

Yes, I agree with all of that. I would tweak it just one way, which is almost just icing. They point to the memo because they are accustomed to there being no moral claim in opposition. They point to the memo to establish not merely legality, but legitimacy. Law substitutes for the moral voice because the moral voice is silent. And so they are making moral claims in the language of the law. Right. Because they know all you're going to do in opposition is to point to a different set of, you know, you'll say, here's my competing memo. And then it just becomes sterile and people tune out. Right. Oh, you know, lawyers are arguing about, you know, I don't know, some opinion by justice Jackson in 19 whatever, you know, and that's what I mean by the moral stupefaction of the American public. Right. That's the idea that they become a kind of deer in the headlights when we start talking about this, because it's not engaging in a voice that they feel they can participate. And what's so beautiful about in Minneapolis is that they're stripping all that away and they are literally participating and using their voice. Right. Memo be damned. And it's working. It's working and it's gonna work. There'll be some thing that gives him some made up reason to way to argue that I have achieved what I want to achieve. There'll be some number that comes out that shows, I don't know, maybe crime dipped or crime committed by undocumented folks has gone down by 8%, whatever, something. And he'll say, yeah, you see, it worked, we're done here. But no one should have any doubt what success you're gonna have is because tens of thousands of people are out there crying that this is an abomination. They are using their moral voice.

[Dahlia Lithwick]

I wanna talk, if we can, about your role in the sort of post 911 war on terror cases because you had another really, I think, chillingly prescient piece in Boston Review as well in September of 2021, which feels like a million years ago and also Weir halcyon days now, but the title of the piece was 911 forever. And I think the point you are making, and I really do think we have to sit in the reality that you were mapping at the time, is that our failure to reckon with the legacy of what happened to the law after 911 is absolutely the reason we are living in the slipstream of that today. If we had not been willing to tolerate the things that we did to the law after 911 in the name of safety, national security, what we tolerated, as you've already noted in terms of torture and cruelty, the surveillance state, the conception of privacy that we gave away, border security as this existential question about national survival, and you talk about all of those things as the price we were willing to pay to feel safe. And the place that I'd love to start if we can just revisit that, is the notion that we were in a war, that the war on terror, as you say, immediately hoovered up the language of war instead of crime and moved us into a world where as long as you could call it a war, everything would be okay. That's the move.

[Joseph Margulies]

That's the move. And of course we see that because in the Trump administration they have decided to declare war, which is just a rhetorical step against an endless stream of others, right? So none of the real horrors that took place post 911 or that are taking place now could have been possible without a thorough embrace of demonization, right? Without demonization, without a willingness to cast some people outside the sphere of human regard, right? We can do what we want with that person because they are not us, right? I do not see them in me. I do not see me in them. Right? That's what demonization is. And so therefore X follows. That's the first move. What the Bush administration did so well is to begin with that and then articulate a legal framework, law speak, that says we don't need to stop with this demonizing language that can exist as the context, the background. But given that we all recognize that those who perpetrated this us are not us, right, and are monsters. We are allowed to do certain things, and here's the law that shows it's okay. So that became the whole okay, well, fine. Well, nobody is as good at demonizing as Donald Trump. He is the master of it. I don't know if he actually believes it, but this is his worldview. Those who are opposed to me are subhuman. They are not of my species. Right, right. And so once you embrace the idea that there are a category of people whose existence threatens who I am and that I can do whatever I want with them, and I call that law. You know, I call that war. I call that terrorism. You know what you call it a thing. It doesn't really matter what you call it, but you. You give it a name that you then cloak in law. You can always find a lawyer to cloak in law. That's the. That's the easiest part. Hard. It's convincing people that the Mexican immigrant who has been your neighbor for 40 years and who makes your economy run, convincing him that that person is a monster, that's the hard part. And that's where his success is. And that's 911 forever, right? That's what they've achieved. The more you do this, the easier it gets. The more often you repeat this, the easier it becomes. Not every episode of this or example of this ends in the same place. But we all know where that dark alley ends, right? I mean, that dark alley ends in all the most vicious pogroms and genocides and holocausts that the world has ever known. They all start with this move. And this is what he's doing, and he's really good at it. And he's had a lot of people who agree, a lot of people who agree.

[Dahlia Lithwick]

The other thing that I want to spend one beat on, Joe, is borders. Because 911 becomes, as you say, a moment where the language right out the chute that the Bush administration starts to push out is border security, right? That these people are coming in and they're mingling around us and they have vicious purposes. And as I just noted, that means everyone's gonn have to give up privacy because we have to monitor Them because they look like you and me, but really they are horrible malefactors and they wish us badly. And as you note in the piece, and I think we forget that focus, that obsessive focus about these evil people who are amongst us. You know, roaming around gives us dhs, it gives us ice, it gives us cvp. Right. We are now living in the absolute wake of a set of decisions made after 911 that were we're gonna focus on the borders. Seeing that materialize now to mean that the borders are everywhere. It turns out that the borders are in Chicago and in Portland and in Minneapolis this week and they're moving to Springfield, Ohio. And I think that there's a metaphor there that I'm not quite catching that I think you were trying to explain, which is, you know, what do you. Crime turns into war and the evil, the other, the monstrous, the animal can get in. And so suddenly what we have to think about is borders as the very touchstone of how we feel safe. It is not how you and I grew up thinking about the world.

[Joseph Margulies]

I don't want to make it sound as though the idea of purity and purification and taint originated with 9 11. These tropes have existed since the memory of man runneth not right. As long as there have been two groups. There are going to be moments when members of one group worry about being contaminated by members of another group. And in that fear, you will erect real and metaphorical borders. Right. So you know, the anti miscegenation statutes were the same thing. They were an attempt to prevent contamination. That's literally how it was thought. Right. You will contaminate the race. So this is a deep reservoir of feeling for folks who think in sort of totalitarian, authoritarian terms. Terms. Right. Who define their identity in terms of who they are. Not who am I. I am the person who is not them. And my psychic well being depends on being separate from them. That's the idea of the border everywhere. The border is everywhere then. Because the border is not merely a physical place that you cross in Texas or Canada or when you land from overseas to, you know, somewhere in the middle of the country. No, the border is wherever contamination can take place. What he has successfully done is create the notion that we have to defend what is western and what are our values from the contamination and the poisoning of this monster, this other. Right. That's what enables everything to become the border.

[Dahlia Lithwick]

We're going to take a short break.

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[Dahlia Lithwick]

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[Dahlia Lithwick]

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[Dahlia Lithwick]

Back now to my conversation with Joe Margulies on that which can be memoed into legality but is divorced from morality. Reading your work on this and listening to you talk today, I'm really struck by the relationship between language and the law and language and morality. Right. Because and I was really struck Thursday morning when Tomorrow Homan was giving his little presser and he was asked can.

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[Joseph Margulies]

ICE and how many border patrol agents are currently operating in the state.

[Dahlia Lithwick]

And his response was, I think we're near 3,000.

[Joseph Margulies]

There's been some rotations. Another thing I witnessed when I came here, I'll share this with you. I met with a lot of people. A lot of the agents, they've been in theater. Some of these people have been in theater for eight months. So there's going to be rotations of personnel, hopefully less now that we have some agreements, maybe we can make it more efficient and safe. But they've been in theater a long time.

[Dahlia Lithwick]

In theater, right?

[Joseph Margulies]

In theater it's a war zone.

[Dahlia Lithwick]

It's a war zone. It's the language of World War II. It's also, it's such an amazing right, given the metaphor you're throwing around, that it's is theater as well as, you know, theater is really important. But I do think that what you're cautioning us to do is be very, very careful about this slippage around language because of course language is not just what builds law, language also builds our moral sense of the world. And if you are comfortable hearing in theater, if you are comfortable hearing domestic terrorists, if you are comfortable hearing enemy of the people, then you are really quietly sanctioning a one way ratchet into this othering.

[Joseph Margulies]

Yeah. So I think language is extremely important as A writer. And you're a writer too, right? We both trade in language. So of course it is extremely important. And I will give you an example of that that I think really matters. One of the cases that I've had in the supreme court in the post 911 world was in 2022, one of my clients is Abu Zubaydah. Abu Zubaydah was the first person thrown into a CIA black site. Right. He's the only person subjected to all the so called enhanced interrogation techniques as well as some that were not authorized. The infamous torture memo was written in order to. Because he was the first to justify his interrogation. Right. So they said, well, assuming what you have told us about abu Zubaydah is true, you may do these things. Right? So he is the poster child and ground zero for the torture debate. And he's now in prison at Guantanamo and has never been charged. Of course he's not part of the military commissions because they're just mistaken that he's not. Was never part of al Qaeda, et cetera. And the issue in the Supreme Court in 2022 in United States vs. Abu Zubaydah was whether the narrow legal issues, again was very different from the moral issue was whether the fact that he was in a black site in Poland could be made public. Right. Because that's where he was held. First he was held at a black site in Thailand and then when that became publicly known, he was moved to a black site that we now know is in Poland. And the US refused to acknowledge that for the purpose of a Polish investigation into, you know, responsibility. They're just not going to cooperate. Break. And in the course of the decision. So of course how abu Zubaydah was treated in these places was in the background throughout the case. And in the course of the decision, I think seven of the nine justices, and I will let you guess who didn't say this, acknowledged that what happened to abu Zubaydah was torture. They used the word torture. They didn't need to. They just described as a term to represent that which was done to him. They didn't say, oh, this is really upsetting. This is really worrisome behavior. This is harsh. No, no, stop it, stop it. In that moment, and this was the first time the justices of the supreme court and the only case that has ever looked at the enhanced interrogation program said, no, no, let us, you know, just put a stake in the ground and mark this day, what the United States did was torture. I think that's exceedingly important. So we will go back in some future time and point to this case and point to other similar kind of declarations, but nothing by the Supreme Court and say, look, we're not going to fight over, well, you know, the language of the law, it's, oh, it's so complex, you know, intent, who knows? Ah, you know, no, no, no, no, no. This was torture. And so you have to be very, very clear about the language you are relying on. And we lost the case. All right? I was not successful in that litigation. They ended up holding that. No, the fact that it was in Poland was a state secret, even though the Polish president has acknowledged it. Okay, fine. You want to say something goofy like that, that's fine. Everybody knows it's goofy. But what we established is that what you did to my clients was a moral obscenity. You tortured my client. And that matters. And it matters to him. It matters to him as a human being and we should never forget that.

[Dahlia Lithwick]

Joe, maybe let's land on this huge question, which is probably a huge unfair question in light of what we're witnessing on the ground in Minnesota this week. You know, we've talked to Kim Lane Shepley, we've talked to Aziz Huq, we're talking to you. And the caution is always the same. You know, authoritarianism and fascism are not going to come in the 21st century in jackboots and tanks. They come with a legal brief and a lot of footnotes. And I want to just hold that up against the other story that, you know, has, has all but broken us this week, and that is five year old Liam Ramos and his dad. And DHS tells us they are scooping up the worst of the worst criminal aliens and this five year old child is being held in Tex and apparently getting sicker. And I wanna look at that reality through your lens of moral stupefaction to go back to the BR title. And I felt, correct me if I'm wrong, that there is a moral weariness, maybe that is in tandem with the stupefaction. Joe and I think we reacted proportionately to the Muslim ban. In the first Trump era. I thought we reacted, and I mean we in some much larger sense than. But I think we reacted appropriately to family separation. In the first Trump era, there was an ability to say, this is appalling and I will go out on the streets and fight this. And now I think that the yardstick for what is immoral is so profoundly warped or that we are perhaps so profoundly weary, or that these outrages come in clusters of a thousand and there's no way to Focus. And so I would love to hear whether we are. Are stupefied or just worn out or numb, how we can use your lens of morality in this moment where we are just annihilated by a fire hose of immoral events. And I am really asking you, and maybe this is too hard a question, where do we seek that moral, not necessarily only legal voice? Where do we find this compassion, this. Because we're so uncomfortable talking in terms of what is right and wrong.

[Joseph Margulies]

Oh, boy. I'll tell you where you find it. You find it every single day on the streets of Minneapolis. You find it in New York City, where people are protesting to get ICE out. You find it in Chicago. You find it all over the country where people are taking to the streets. That's the voice. You're absolutely right. Everybody knows, you know, this was Steve Bannon's advice, right? Flood the zone. Right? Just make it so unrelentingly horrible for as long as we can, as much as we can, in as many spheres as we can, that people will just get tired. And everybody is tired. Everybody is exhausted. You can't stand to look at the news. I mean, what did they do today? It's unbelievable. And it would help if there were a coherent, focused, morally driven opposition by the Democratic Party, but that doesn't exist. And maybe it'll come about, but it doesn't exist now. So people are left to develop it on their own. And they are even despite the exhaustion. There's a lot of litigation that's going on, and there's a lot of community building, and there's a lot of activism and there's a lot of pushback back. It's not simply in the tens of thousands of people who come out in 20 below weather to protest what ice is doing. You see it in things like the declining approval ratings and registrations of moral outrage. People are starting to use the language that we aspire to. No, this is an obscenity. This is appalling. Right. I am heartened by that. What I think, what I hope hope is happening, is that the pure, brazen wretchedness of what they are doing has driven people out of a stupefaction and they cannot keep up with every day because all of us have limits and all of us have lives. And all right, yes, but collectively, and that's the only way anything changes. Collectively, they. We are roused from our stupefaction, and they have roused us from our stupefaction. When you shoot a person in cold blood, five, seven ICE officers surrounded, lying on the ground. I mean, you will rouse even the most exhausted population out of their stupefaction. And I think that's what's happening. And I am heartened by it.

[Dahlia Lithwick]

I love that as a, an endpoint because I think it really drives home what you said about the utility of the law. The utility of the law remains that it is a benchmark for something that is completely out of bounds. It's why you're a lawyer. It's why this matters. But what you're saying, and I think it's really urgently important today of all days, is that it's just not enough. It is not the end of the conversation. It is the beginning of the conversation. And it's outside of just legal analysts on TV be saying, is it lawful? It is going to be all of us looking at one another and saying it is unacceptable.

[Joseph Margulies]

Yeah. I will tell you, the law is never enough by itself. The law is never enough if you do not have the moral claim behind it. And a population willing to press that moral claim in the most open and plain language, the law will get you nowhere. The law is an empty vow.

[Dahlia Lithwick]

Joseph Margulis is a professor of the practice of government at Cornell University. He's a writer, a civil rights litigator, and a teacher. As a civil rights lawyer, he was counsel of record in Rasool v. Bush and in Munaf v. Gharan, which gave American citizens the right to challenge their detention by the US Government regardless of where they are held in the world. His books include Guantanamo and the Abuse of Presidential Power and what Changed when everything changed, 911 and the making of National Identity. The piece we were discussing today was in the Boston Review and it is called the Moral Stupefaction of the American Public. Joe, I cannot thank you enough for bringing this very crystal clear frame on a week that I really desperately needed. Thank you.

[Joseph Margulies]

Yeah, happy to do it. Take care, everybody.

[Dahlia Lithwick]

That is all for this episode, but I would really commend to you the amicus bonus episode that is available right after this one immigration lawyer and longtime advocate for unaccompanied youth and non citizen children. Kristin Clarence paints a truly devastating picture of what is happening to children and families under Trump's extreme immigration policies and actions. And as she tells me, Liam Ramos is just one child, but there are many, many more Liam Ramoses that we have not seen and we are not seeing. It is an important and heartbreaking conversation. You can subscribe to Slate plus directly from the Amicus show page on Apple Podcasts and on Spot or you can visit slate.com amicusplus to get access wherever you listen. That episode is available for you to listen to right now. We'll see you there. But for now, thank you so much for listening. And thank you so much for your letters and your questions and your comments. Keep them coming. We are reachable by [e-mail] you can find [e-mail] Amicus Podcast. You can also leave a comment if you're listening on Spotify or on YouTube, or rate us and review us on Apple Podcasts. Sarah Burningham is Amicus senior producer. Our producers this week are Patrick Fort and Sophie Somergrat. Hilary Frye is Slate's editor in chief Susan Matthews is executive editor Mia Lobel is executive producer of Slate Podcasts and Ben Richmond is our senior director of operations. We'll be back with another episode of Amicus next week.