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.
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.
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.
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.