the rule of law…

Posted on Tuesday 27 May 2008

For the hearty among us, there are two takes on the Torture issue to chew over. First comes Attorney General Michael Mukasey’s Commencement Address at the Boston College Law School. He describes a historical cycle of aggressiveness and timidity in the world of our intelligence communities, and he uses Jack Goldsmith‘s book, The Terror Presidency, to bolster his argument.
As Professor Goldsmith explains, political leaders — and he might as well have added opinion leaders outside the government, including academics, to the list as well – in his words, pressure the community to engage in controversial action at the edges of the law, and then fail to protect it from recriminations when things go awry. This leads the community to retrench and become risk averse, which invites complaints by politicians that the community is fecklessly timid.
And so he cautions us to not over-react to the Memos of John Yoo – interpreting them as a sign of the time in which they were written. Comes now emptywheel [Mukasey’s Troubling Historical Argument] who fillets Mukasey’s argument with her usual tight reading of the words and her keen sense of logical argument.
Mukasey has basically turned Goldsmith’s argument–that Iran-Contra made intelligence officials worried about the legal repercussions of their activities–into an event in which investigators conducted irresponsible oversight which, somehow, contributed to 9/11.

Think about the implications of that for a moment.

Mukasey’s insinuation that the investigation into Iran-Contra was irresponsible has two very dangerous implications. First, it suggests it is improper for Congress to conduct an inquiry into the executive branch after the executive branch ignores a very clear law passed by Congress. Of course, a couple of guys made that argument back in 1987, in the Minority Report on Iran-Contra. Dick Cheney and David Addington argued that the Boland Amendment and the investigation into Iran-Contra were just attempts by Congress to improperly usurp the executive branch’s powers to conduct foreign policy. Mukasey’s inclusion of Iran-Contra in his historical description of the causes behind legal timidity must be read as an endorsement of Cheney and Addington’s famous ideological expansion of the unitary executive (because it’s the only way it makes any historical sense). And with it, Mukasey suggests he believes a Congressional investigation into Bush’s clear violation of both FISA and the Convention against Torture might be irresponsible.
To be honest, I have trouble following the details of each of their arguments. For me, however, it brings up what I’ve been thinking ever since this business of torture became public. But, the torture thing is just a piece if a much bigger disgust with the nature of modern logic. Attorney General Mukasy is making a similar argument to the one Yoo makes, or the Bush Administration Luminaries make that concludes that it’s permissible to bend or break our laws because of "circumstances" or "situations." Back in the Iran-Contra days [which Mukasey refers to], Congress said Reagan couldn’t continue to aid the Contras in Nicaragua so his Administration did it under the table by selling arms to Iran and diverting the profits. It was a comic book scheme, that had little to do with the fate of the Contras, Nicaragua, the U.S., or Iran. They broke the law because of circumatances. Shouldn’t have done that, by my reckoning. Viet Nam was a bad war by any parameter. We escalated it from being advisors to taking on the whole thing because of a provocation in the Gulf of Tonkin. Apparently, that "circumstance" didn’t ever even happen. And then there’s Iraq. We’ve been at war there for five years based on a forgery that suggested Iraq was seeking African Uranium. That turned out be a huge hoax.

What do we have to show for all these "circumstances" that have lead us to massively bend the law of the land? Pretty close to nothing except a massive debt. And how about the glut of secret programs explained by 911? Torture, disavowing the Geneva Conventions, invading a country that had done us no harm, domestic spying without warrants, outing a C.I.A. Agent, picking DoJ Attorneys who would push voter fraud [intimidation] – the list boggles the mind. What "circumstances" warranted such behavior? What have any of them brought us?

In the world of psychotherapy, these are called "rationalizations." It’s an aptly named term – to turn something "irrational" into something that sounds "rational." Young adolescents are masterful rationalizers. With puberty comes a cognitive leap and the new teen has the ability for abstract thought and the construction of logical arguments – which they do to explain almost everything they do. The arguments and counterarguments of the 14 year old are something to behold – hilarious if it’s the neighbor’s kid, maddening if it’s your own. Mature adults come to a point where they recognize when they are doing it and the danger. Criminals never learn to know that they’re doing it. Politicians often fall in the latter camp. If you can stomach it, Mukasey’s address is a very high level example. Yoo’s Memos, however, are really pretty transparent – more adolescent than Mukasey. Rationalizations start with a conclusion, and retrofit the logic to arrive at the conclusion one started with. It’s easy to see that in Yoo’s Memos.

The reasons we have Oversight, Checks and Balances, Laws, Courts, Open Government, the Press, is to have constant surveillance for "rationalizations" – people doing what they want to do, not operating within the confines of mutually agreed on laws. The reason these people who have been governing us for eight years have made such an unholy mess of things is that they didn’t want anything to get in the way of their doing what they wanted to do. So they’ve strung together a mass of rationalizations, bolstered by selective readings of history and "circumstances" that surpass even the likes of some of the greats like Nixon and Reagan. Cheney – specifically Cheney and sidekick Addington – have taken the lead in this category for all times.

So as much as I enjoy it when emptywheel takes on the illogical logic of this group of young adolescents passing themselves off as elder statesmen, she’s wasting her talents. If a patient talked like Mukasey in that Commencement Address, the psychotherapist wouldn’t argue with the logic. He/she would probably say something like, "Sounds like you’re having a hard time accepting how badly the DoJ and John Yoo behaved under pressure." There’s no defense for the way David Addington, John Yoo, Harriet Miers, Alberto Gonzales, and a host of others twisted the law for their handlers. So far, the only government lawyers who stood for the law in this story were James Comey and Jack Goldsmith. When and if this nightmare ever abates, we have a lot of soul searching to do about how this happened. If we conclude that it was because of the trauma of 911, then we’ve got a hell of a lot of work to do to prepare for future traumas. It’s when there are "circumstances" and "situations" that our lawsare most vulnerable, and it’s then when we need them the most…
    May 28, 2008 | 5:50 AM

    I hope our next president offers Mr Comey amd Mr Goldsmith a job in his new administration. It would be nice to see a couple of ex gov’t employees being rewarded for being right than wrong as in W’s form of gov’t you get fired for being correct.

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