hilzoy

Not The Night Of The Long Knives

by
by hilzoy

The NYT asked Charles Fried, Jack Balkin, and Dahlia Lithwick "how the incoming administration should deal with the legal legacy of the war on terrorism", or, more briefly, whether people who authorized torture, rendition, illegal surveillance, and so forth should be put on trial. As I've said before, I think they should. As Dahlia Lithwick says:

"The Bush administration made its worst errors in judgment when it determined that the laws simply don’t apply to certain people. If we declare presumptively that there can be no justice for high-level government officials who acted illegally then we exhibit the same contempt for the rule of law."

This means, of course, that I disagree with Charles Fried*, who writes::

"There are those who will press for criminal prosecutions, but this should be resisted.

It is a hallmark of a sane and moderate society that when it changes leaders and regimes, those left behind should be abandoned to the judgment of history. It is in savage societies that the defeat of a ruling faction entails its humiliation, exile and murder.

In contrast, by turning away from show trials and from the persecution of even the worst of their past regimes’ miscreants, new democracies like Spain and South Africa showed that they had moved decisively beyond a politics of hate and revenge. To South Africa and its Truth and Reconciliation Commission compare the barbarism and desolation of Robert Mugabe’s Zimbabwe.

Think too of the succession of Roman emperors, of the Soviet Union of Lenin and Stalin, or of the night of the long knives when Hitler eliminated his closest associates and rivals. It is only an exaggeration to see the urge to criminalize our soon-to-be-former leaders, to make into courtroom drama the tragedy of the last eight years, as an extension of this same practice."

Question: does Charles Fried think that all criminal trials are like the Night of the Long Knives or the Stalinist purges? Did he think this while he was Solicitor General? Does he think that in our effort to move beyond the barbarism of Mugabe's Zimbabwe, we should stop trying thieves and rapists, and punish murderers without giving way to the 'hate and revenge' of the criminal justice system? Or is it only politicians whose trials cannot be distinguished from the 'humiliation, exile and murder' of the vanquished?

Fried goes on to concede that "ours would not be Stalin-type show trials, but they would have a kind of absurdity distinctive to our own over-lawyered culture." They would have all sorts of procedural intricacies, which he details at some length. Personally, I think that all these things — subpoenas, depositions, discovery, motions for this and that — are among the things that distinguish a decent system of justice from the purges and barbarism Fried mentions. If they are too annoying for politicians to put up with, or too ludicrous to be useful, then we should change them across the board. If not — if they serve some useful purpose — then simply listing them in a way that makes them sound pettifogging and ridiculous is wrong.

Fried also tries to distinguish Cheney et al from ordinary criminals:

"But should the high and mighty get off when ordinary people committing the same crimes would go to prison? The answer is that they are not the same crimes. Administration officials were not thieves lining their own pockets. Theirs were political crimes committed by persons whose jobs were to exercise the powers of government on our behalf. And the same is even truer of the lower-level officers who followed their orders. (…)

If you cannot see the difference between Hitler and Dick Cheney, between Stalin and Donald Rumsfeld, between Mao and Alberto Gonzales, there may be no point in our talking. It is not just a difference of scale, but our leaders were defending their country and people — albeit with an insufficient sense of moral restraint — against a terrifying threat by ruthless attackers with no sense of moral restraint at all."

I can see the difference between Hitler and Dick Cheney. I can also see the difference between Hitler and a shoplifter. That does not mean that I do not think that the shoplifter should be punished for his crime. 

More to the point, it is possible to com
mit crimes for comprehensible purposes. Women sometimes kill husbands who beat them, seeing no other way out. People steal to buy their children food or medicine. The fact that in so doing they show an "insufficient sense of moral restraint" is not relevant to the question whether they committed murder or theft.

If Bush and Cheney's motives are in fact an excuse under criminal statutes, then they should get off (and, I would add, the statutes should be changed.) If not, I do not see why invoking their motives is relevant here. This is especially true since I would think that any government official who decided to violate the laws against torture would do so not to line her own pockets — torture is not normally lucrative — but because she thought there was a good reason to do so. If we want to make torture by government officials legal, we should just go ahead and change the law. We should not pretend that it is illegal while excusing any torture performed for motives that any government officials who licenses torture will probably share.

Read more

Peculiar Dreams

by

by hilzoy Brad DeLong had a strange dream: "I just dreamed that it was the 1930s and I was briefing the Cravsth lawyers for today's scotus oral argument in Schechter Poultry…" I sometimes have odd dreams related to my profession. There are the standard anxiety nightmares — I have a recurring one in which I … Read more

Purple Hearts And PTSD

by

by hilzoy Via Michael Cohen at Democracy Arsenal, the NYT: “The Pentagon has decided that it will not award the Purple Heart, the hallowed medal given to those wounded or killed by enemy action, to war veterans who suffer from post-traumatic stress disorder because it is not a physical wound. The decision, made public on … Read more

Better Late Than Never

by

by hilzoy From the Chicago Tribune’s ‘Clout Street’ blog: “In a historic vote, the Illinois House has impeached Gov. Rod Blagojevich, directing the Senate to put the state’s 40th chief executive on trial with the goal of removing him from office. The vote by the House was 114-1 and marks the first time in the … Read more

No, Blacks Did Not Destroy Gay Marriage

by

by hilzoy Finally, we have a good analysis (pdf) of the levels of African-American support for Proposition 8. Guess what? It probably wasn’t nearly as high as the exit polls suggested: “Surveys conducted just before and just after Election Day found much smaller differences in support for Proposition 8 between African Americans and voters as … Read more

Countervailing Powers

by

by hilzoy From the Washington Post: “Senate leaders won the support of Citigroup, one of the nation’s largest banks, for legislation allowing bankruptcy judges to modify the terms of troubled mortgages. (…) Senators Dick Durbin (D-Ill.), Chris Dodd (D-Conn.) and Charles Schumer (D-N.Y.) called this a breakthrough on the bankruptcy issue and said they will … Read more

“No Torture. No Exceptions.”

by

by hilzoy From the NYT: “President-elect Barack Obama has selected Leon E. Panetta, the former congressman and White House chief of staff, to take over the Central Intelligence Agency, an organization that Mr. Obama criticized during the campaign for using interrogation methods he decried as torture, Democratic officials said Monday.” So, you might be wondering, … Read more

Dawn Johnsen At OLC

by

by hilzoy The Obama transition team has announced several new appointments at the Department of Justice: David Ogden as Deputy Attorney General; Elena Kagan as Solicitor General; Tom Perrelli as Associate Attorney General; and Dawn Johnsen, Assistant Attorney General for the Office of Legal Counsel. I want to focus on the last of these. Like … Read more

Random Snippets

by

by hilzoy Just a couple of things I had to highlight. First, my quote of the day: “After helping to foster the explosive growth of consumer debt in recent years, credit card companies are realizing that some hard-pressed Americans will not be able to pay their bills as the economy deteriorates.” Really? All those credit … Read more

Nooooo! No More Tax Cuts!

by

by hilzoy From the NYT: “President-elect Barack Obama plans to include about $300 billion in tax cuts for workers and businesses in his economic recovery program, advisers said Sunday, as his team seeks to win over Congressional skeptics worried that he was too focused on government spending. The legislation Mr. Obama is developing with Congressional … Read more

Value At Risk

by

by hilzoy One of the things I love about blogs is that they allow people who really know what they’re talking about to respond, publicly, to what they read, and to do so almost instantaneously, so that the rest of us can benefit. There’s a wonderful example today. It starts with a long NYT article … Read more

Taking Our Medicine

by

by hilzoy The NYT has a long piece on the financial meltdown in two parts: 1, 2. It’s very much worth reading. One point in particular jumped out at me: “THERE are other things the Treasury might do when a major financial firm assumed to be “too big to fail” comes knocking, asking for free … Read more

Anniversary

by

by hilzoy A year ago today: 12:40:41 AM Andy: I’ve got to go. 12:40:43 AM Andy: *sighs* 12:40:45 AM Hilary: kk 12:40:54 AM Hilary: Bye. Have a great day. 12:41:01 AM Andy: Thanks. Sleep well. It was, of course, morning in Iraq, and Andy Olmsted was heading out on a mission. Some hours later, he … Read more

Tennessee Environmental Disaster Update

by

by hilzoy From the NYT, a few days ago: “In a single year, a coal-fired electric plant deposited more than 2.2 million pounds of toxic materials in a holding pond that failed last week, flooding 300 acres in East Tennessee, according to a 2007 inventory filed with the Environmental Protection Agency. The inventory, disclosed by … Read more

I Love The Internets

by

by hilzoy Via Balloon Juice, the Ukulele Orchestra of Great Britainplays the theme from Shaft: (At about a minute in, you might find yourself wondering: is it all instrumental? The answer is: no.) Thesis: Insofar as one can generalize, the British sense of humor depends to a greater degree than most on exploiting utter incongruity … Read more

Supporting Our Troops: Once More, With Feeling

by

by hilzoy The NYT has an article on the Army’s efforts to deal with violence by soldiers returning from Iraq — apparently, there have been nine murders by soldiers back from Iraq in Fort Carson alone, and rape and domestic violence are also up. Three bits from the story are particularly awful. First: “The latest … Read more

Alberto Gonzales, Victim

by

by hilzoy I’m a bit late getting to Alberto Gonzales’ interview in the WSJ: “”What is it that I did that is so fundamentally wrong, that deserves this kind of response to my service?” he said during an interview Tuesday, offering his most extensive comments since leaving government.” Ah, Gonzales’ memory problems again. ThinkProgress kindly … Read more

Dear Web Advertising People …

by

by hilzoy Dear web advertising people, You know those animated thingos you’ve recently started putting on pages I visit? The dancing Wii remote that absolutely nothing can turn off, and that consistently blocks content at any number of otherwise wonderful web sites (cough, TPM, cough cough)? The bunch of rockets that just shot themselves across … Read more

An Eye For An Eye Makes The Whole World Blind

by

by hilzoy From the NYT: “Israeli aircraft pounded Gaza for a second day on Sunday, increasing the death toll to nearly 300, as Israeli troops and tanks massed along the border and the government said it had called up reserves for a possible ground operation. The continued strikes, which Israel said were in retaliation for … Read more

WaMu

by

by hilzoy A story about WaMu from the NYT: “WaMu pressed sales agents to pump out loans while disregarding borrowers’ incomes and assets, according to former employees. The bank set up what insiders described as a system of dubious legality that enabled real estate agents to collect fees of more than $10,000 for bringing in … Read more

Factcheck: Mexican Laws Against Incest

by

by hilzoy Yesterday, the Washington Post had an op-ed on rape which contains the following claim: “In Mexico, for example, the rape of a teenage girl by her father is defined as voluntary until it is proved otherwise. Under most state criminal codes in Mexico, incest is considered a crime against the family, not against … Read more

The Disaster In Tennessee

by

by hilzoy I’m late to this story, but: what’s happening in Tennessee sounds horrific: “A coal ash spill in eastern Tennessee that experts were already calling the largest environmental disaster of its kind in the United States is more than three times as large as initially estimated, according to an updated survey by the Tennessee … Read more

Listening To The Voice Of Creation

by

by hilzoy I see that while I was away celebrating Christmas, Pope Benedict decided, as Time put it, to take “a subtle swipe at those who might undergo sex-change operations or otherwise attempt to alter their God-given gender.” Here’s what he said: “What is necessary is a kind of ecology of man, understood in the … Read more

Idiocy Comes Home To Roost

by

by hilzoy Bloomberg (h/t Paul Krugman): “Just $5 million of work is needed to complete a new California Court of Appeals building in Santa Ana. The state may not have the money, and come July judges may be writing opinions in their living rooms. “I’ve been on the bench for 23 years, and I’ve never … Read more

No More Double Standards

by

by hilzoy I’ve been wondering why such different standards are applied to financial executives and Detroit’s auto workers. Consider: * The financial executives helped cause the present meltdown. Auto workers did not. * The financial executives run their firms, and are responsible for their troubles. Auto workers and their union, by contrast, just got themselves … Read more

Oblivious

by

by hilzoy From the AP: “Banks that are getting taxpayer bailouts awarded their top executives nearly $1.6 billion in salaries, bonuses, and other benefits last year, an Associated Press analysis reveals. The rewards came even at banks where poor results last year foretold the economic crisis that sent them to Washington for a government rescue. … Read more

The Beam In Our Eye

by

by hilzoy Ever since I heard that opponents supporters (silly me, posting late at night) of Proposition 8 had filed suit to invalidate all the gay marriages that have taken place in California, I’ve been trying to wrap my mind around the fact that someone, somewhere had to actually initiate this process. That means that … Read more

Saturday Poetry Blogging

by

by hilzoy

Over at Ta-Nehisi’s blog, I found a wonderful poem by Elizabeth Alexander, who has been invited to write a poem for Obama’s inauguration. It’s ‘Hottentot Venus’, about a woman from what is now South Africa who was taken to Europe and exhibited throughout Europe. When I was 12 or 13, I saw her skeleton, and I think some sort of cast, in Paris, where it was on exhibit in a museum (apparently, it has since been put away, thank God, along with her preserved brain and genitalia, which I do not recall. France returned her remains to South Africa in 2002.) I’ve put the poem below the fold; it’s really, really good. Ta-Nehisi:

“I don’t know how, but in my early readings of this piece, I missed perhaps the most important emotion–a kind of slow-burning rage. There are many ways to read those two quotes. But I’m black and Ta-Nehisi and what I see is the irony of science, how disciplines founded to better understand the world so often obscure the world.”

I think that’s right: right about the rage, right about the science. But it’s also striking to me how she manages to combine a kind of generosity to Cuvier with that rage. The first part starts with such beauty, though as it goes on, you can see the inhumanity peering out from behind it. But a less generous poet would have left it out entirely.

But politics obscures the world as well. Googling around to find out more about the woman who wrote this poem, I found some other responses, from people who didn’t seem to want to bother giving her a try. This from Newsmax is typical (it’s worth reading the poem it excerpts in its entirety. You can make snippets from any poet sound dumb. Think of TS Eliot:

“Twit twit twit

Jug jug jug jug jug jug”

What a dope!)

In any case, enjoy!

Read more

Change Is Gonna Come

by

by hilzoy Every so often, something reminds me all over again that things really are going to change dramatically on January 20. Today, it was Barack Obama’s weekly address: “Right now, in labs, classrooms and companies across America, our leading minds are hard at work chasing the next big idea, on the cusp of breakthroughs … Read more

Step Away From That Shredder …

by

by hilzoy The AP, via FDL: “Dick Cheney’s lawyers are asserting that the vice president alone has the authority to determine which records, if any, from his tenure will be handed over to the National Archives when he leaves office in January. (…) “The vice president alone may determine what constitutes vice presidential records or … Read more

“There Is A Better Way”

by

by hilzoy Scott Horton has a really good interview with Matthew Alexander, the military interrogator whose interrogations helped the US locate and kill Zarqawi. Alexander’s answers should put paid to the Ticking Time Bomb argument once and for all: “In Iraq, we lived the “ticking time bomb” scenario every day. Numerous Al Qaeda members that … Read more

Random Cabinetry

by

by hilzoy I love this quote from Ezra: “Word is that Congresswoman Hilda Solis is to be named Labor Secretary. I’d write a long post on this, and maybe I will later, but I think most of what I’d say is better expressed by the fact that Harold Meyerson just ran into my office doing … Read more

A Bad Rule

by

by hilzoy From the Washington Post: “The Bush administration yesterday granted sweeping new protections to health workers who refuse to provide care that violates their personal beliefs, setting off an intense battle over opponents’ plans to try to repeal the controversial measure. (…) The far-reaching regulation cuts off federal funding for any state or local … Read more

Ends And Means

by

by hilzoy Jill at Jack and Jill Politics has a post about what it’s like to be a black student at Sidwell, the school Malia and Sasha Obama will be attending come January. It’s a great post: very interesting and thoughtful, and well worth reading. But I found one part of it troubling. The background: … Read more