Mukasey's Comments

[pecunium]

In the midst of Micheal Mukasey falling down while speaking to the Federalist society, the actual speech seems to have been lost, so I went to their website and took a look.

It’s a subtle, and nasty, piece of work, rife some talking points, and a very pernicious piece of rhetoric, the meat of which is attached to all the talking points.

He argues, “Casual requests for criminal investigations, as well as the even more prolific conflation of legal disagreements with policy disagreements, reflect a broader trend whose institutional effects may outlast the current Administration and could well endanger our future national security.” It happens I agree completely with the sentiment, but not the actual argument he’s presenting.

What he’s alleging is that investigations of possible criminal behavior on the part of this administration, or its appointees, would be unreasonable, because the real issues here aren’t matters of actual law, but merely disagreements about policy.

If we can forget (which is a hard thing) the blatant use of criminal charges to affect issues of policy We don’t need to co back to Clinton, we can look more closely at the voter fraud charges which were at the heart of the US Attorney firings. Those are the sorts of, “casual requests for criminal investigations” which conflate policy disagreements with criminal behavior (the actual firings of the attorneys is a different sort of question, and there are issues of influence, and what might be illegal activity in the way they were fired, though the firings themselves were, almost certainly, legal. Choosing to prosecute individuals, while not not going after people like Nathan Sproul who run companies which seem to have destroyed registrations they were legally required to turn in, which might cause someone to believe they were registered, only to discover on election day they weren't. That's a question of policy, e.g. how to best spend limited resources and ensure the best result for the body politic).

Worse, is the “defense” he offers throughout the speech, he says those who made the decisions (in this case to torture people) did so, “in good faith,” and to protect the country during a time of war, or with the belief that what they were doing was in any way contrary to the law.”

There you have it, the belief that one is doing a thing for the common good, combined with ignorance is an absolute defense. Put those two things together, and what you have isn’t a violation of US laws and treaties (the Geneva Conventions, UN Treaty Against Torture, and the War Crimes Act of 1998: USC 18 §2441), nope, those stop being crimes when one “believes” one is acting, “in good faith,” and become mere “policy disputes,” nothing to see here, move along.

Even if they weren't wrong, this is some sort of “moral relativism, no because, It is important for those who are so quick to condemn the attorneys who were working nearly around the clock, for months on end, in the wake of September 11th, to keep that in mind.. See, they were scared, and people were clamoring for action, so they acted in good faith when they broke the law, and recommended that other people do the same, so investigating to see if they broke laws would be a bad thing.

Which is nonsense, there are some crimes (such as fraud) where intent is a large part of the actual crime. There are some in which intent changes the nature of the crime committed (manslaughter, versus murder), but in none of them can one say, “I was doing it because a good thing was going to happen; and I was acting in good faith to achieve that end.”

If I embezzle money from my employer, and donate it all to charity, in the “good faith” belief that my boss could afford it, and there were people in desperate need; and that helping them would be good for my employer, it’s just that my employer didn’t realise that was what he needed to do... I’m not going to be able to plead to the court that it wasn’t something meriting a criminal charge; that the two of us were just engaged in a “policy dispute” about how to best manage the company’s assets.

How much less can we afford to sweep under the rugs such things as tossing the 4th amendment into the dustbin of history (warranteless wiretaps), or torturing people; some of them to death?

The other problem with his argument is that it boils down to, “we did what we did for the good of the state,” and demands no actual scrutiny take place. In short he wants to grant an imperial presidency to Bush; and delegate that imperium to Bush’s lackeys, while he exhorts his audience to be robust in opposing the incoming administration.

The loyal opposition, of course, remains as important a part of democracy as the majority in power. In that regard, I take comfort in the fact that whether in office or not, many members of this Society will remain a part of the public debate and will help ensure that the next Administration acts responsibly and effectively to protect our country and to protect the ideals on which it is based. For that, and for your support based on the principles that support this Society, I am grateful, and I can say with certainty that the Nation is grateful.

To which I can only say, I am, most emphatically, not grateful to the Federalist Society, which has been, IMO, a most disloyal opposition, and is opposed to the things I see as good, and useful and worthy of praise in the nation; while supporting, fostering and spending money to further the more base and wretched aspects of the nation. What Mukasey was praising is that reactionary streak which was so strong in the past eight years. Those qualities which have cost us what moral stature we had gained.

Those lawyers he praises, as he asks for the absolution of ignoring their actions, gave cover to the policies which cost us that place. They made it possible for people to argue that tortures weren’t tortures, and habeas corpus was antiquated. It’s possible they didn’t break laws, but the only way to know for sure is to do the thing he hopes will not be done, we must haul the things they did into the light and look at them, that we might know if real crimes were committed, or merely piss-poor policies perpetrated.

Comments

[wolodymyr.livejournal.com]

Have you considered work in this area? You seem good at it, and good for it.

Thanks for this.

[pecunium.livejournal.com]

Work in what area? Venting about poltics? Sure, if you can find a place which is looking for a columnist, let me know.

[wolodymyr.livejournal.com]

Hmm. I'll think about that. :> But I meant law.

[pecunium.livejournal.com]

Ah...


From my lawyer friends who know me, I'd love law school and hate practice; which makes it something on the order of an expensive hobby.

Being one who reads law (and laws), I can do the hobby part on my own, for a lot less than three years of socratic method lectures.

[wolodymyr.livejournal.com]

As a lawyer myself (trained, if not long in practicing), I could see why they'd say that. For the wee hill of beans it's worth, I clerked at the FTC doing anti-fraud stuff, and the people there had a very good time with the law - they were fighting a good fight and enjoying it, and since it wasn't private practice they weren't made to put in the kind of hours that kills all joy.

When I read you writing about the reasoning/value/applicability of a thing, I come to wish you were closer to being able to implement your thinking. But that's me daydreaming about the expenditure of your time, which is a lot like daydreaming about spending other people's money.

[pecunium.livejournal.com]

Well, color me flattered. If, somehow, I could convince a person in politics that I'd make a good advisor (and it's sort of implicit that someone who sees my reasoning and is so convinced is likely to be someone I wouldn't have a philosophical problem working for) I'd probably be willing to take the job.

Maia's sister's ex has a job in the DoL, for much the same reason you say people are at the FTC, it pleases him, and he can do good work in a field which matters deeply to him.

We shall see what comes of my return to school, thus to finish my Bacheleor's

[sethg]

Over the past seven years or so I've been very impressed that while civilian pundits were wetting their pants saying that of course we must pull out every swarthy person's fingernail if Our Commander-In-Chief says that's needed to save us from TEH TERRARISTZ, career lawyers at the JAG's office were saying over and over to anyone who would listen, no, you dumbshits, we are a nation of laws and some of those laws proscribe war crimes and that's exactly what you are advocating.

[pecunium.livejournal.com]

I meant to say, "for a lot less than three years of socratic method lectures would cost".

Of course the civilians were saying that, they had Jack Bauer and every other sort of nonsense to corroborate their ideas that torture works, and the "utilitarian" excuse to justify it, and a huge dose of american exceptionalism to rationalise and it the cover of people like Dershowitz arguing for making a legal structure to normalise it, and they got raging hard-ons from being able to play hard-boiled realists.

David Brooks, and his ilk, can depend that if they're drowning the only hlep I'll give them is to not in the pool to raise the water level.

[sinboy.livejournal.com]

You vent about politics with a sense of history, in a precise manner, and in a way that's easy to read and understand. You provide good arguments, not just angry rhetoric (which I'm often of presenting). I think you do just as good a job as Phill Carter did with Intel Dump, and he eventually made a career out of it.

So actually, I do think you'd do a good job of pro-blogging. If you were in NYC, I'd suggest Talking Points Memo. They're usually hiring. If not them, then another progressive site could probably use someone with your chops, if only on a freelance basis.

[sinboy.livejournal.com]

How much less can we afford to sweep under the rugs such things as tossing the 4th amendment into the dustbin of history (warranteless wiretaps), or torturing people; some of them to death?

The same way we gave up on accountability for Iran Contra or Watergate. Because we don't want "partisan concerns" dividing the country. Unless it's Clinton.

[antonia-tiger.livejournal.com]

I'm of the opinion that a lot of what we're seeing is, in part, a consequence of the long mishandling of Second Amendment issues.

There's certainly room for argument on what it means. But, rather than amend the Constitution, the courts and legislators seem to have preferred to reinterpret it into meaninglessness.

I'm British. American attitudes on the issue of gun control seem differently insane to ours. But is it any wonder that so many seem to think that the US Constitution is an irrelevance?

[pecunium.livejournal.com]

I'm not sure quite what you mean. If blame attaches to that issue I don't think it's properly the fault of the legislators, but the jurists. The Supreme has heard all of one second amendment case in my lifetime (the one prior to that was Miller v Texas, which has been interpreted in exactly the reverse of the actual holding).

The comma is pesky, as is the meaning of, "well regulated," and, "militia." I don't think the Nat. Guard, with the easy ability of the Feds to appropriate them; and the Federal mandates which define the relative sizes of them, per state, their organization, equipment, and the ranks of the members, really count.

But, in Calif., at least, to form an independant militia is a crime.

Those questions haven't been taken to the courts, so we have no idea what the actual lines are.

But all of that seems to be independant of your comment that our present problems stem from a mishandling of the second amendment, can you clarify that bit for me?

[ckd]

Mukasey's being struck down in the middle of that farrago of lies is the sort of thing that makes me reconsider my agnosticism.

[sethg]

Did the news of Ann Coulter getting her jaw wired shut push you over the edge? :-)

[pecunium.livejournal.com]

Only if her ability to type had gone too.

[shunra.livejournal.com]

I was absolutely delighted to read that Mukasey's speech was interrupted by a loud and angry interjection: "Tyrant!" voiced by Justice Sanders of the Washington State Supreme Court.

Now I also understand exactly *why* Justice Sanders said so. I've written him a note of thanks.

[pecunium.livejournal.com]

One wonders what the Justice was doing at a Federalist Society dinner. Power to him.

[starcat-jewel.livejournal.com]

Y'know, if it was you or me he was talking about, the big talking point would be "ignorance of the law is no excuse". I say if we don't get to use that one, his buddies don't either.

[pecunium.livejournal.com]

But see, he isn't saying they were ignorant of the law. He is saying the intent matters. They meant to do good, so any minor little things like breaking the law, well that's not important.

Because they were doing it with the best of intentions, and to help people.

But, as you say, I can't say I was embezzling to help people and expect to get away with it, so they ought not be able to eiher, but never believe they didn't know the laws they were shredding; that's the whole point of the, "good faith" argument. It's a parralell to police who execute an illegal search, "in good faith" thinking it's not illegal.

This is a valid claim for rookies, not for guys who've been doing it awhile. He wants us to give the lawyers at DoJ the same pass we give a cop who has the wrong address on search warrant.

[don-fitch.livejournal.com]

Precisely. The "in good faith" argument can be used (sometimes properly) in a plea for more lenient punishment/sentencing, but that comes well after establishing guilt for breaking the law. (Let's leave aside the concept of "jury nullification", okay?)

The big point I see in the current situation is that Investigation at a high level is necessary to establish a lot of facts and degrees of responsibility, because the Current Administration have operated at such a high level of secrecy. (And, if "intent" be admitted for consideration, I'm tending to think that the intent of this secrecy was largely to prevent them from being discovered to have done things they knew to be illegal and wrong.)

Regrettably, it appears unlikely that such Investigations will transpire, so a worse version of such things will probably happen sometime in the future.

[peri-renna.livejournal.com]

Reading the bits of the speech you quote, I can't help but think: "Politics and the English Language" (http://www.mtholyoke.edu/acad/intrel/orwell46.htm) was published sixty-two years ago. Was anyone listening?

[don-fitch.livejournal.com]

".. into the light, ... that we might know if real crimes ... or merely piss-poor policies...."

Yes. The former need to be punished, and the latter (I think we've had a combination of both) need to be avoided in the future. To do this properly and adequately, we (the American People, as part of an informed electorate) _must_ have a great deal more information available to us than we do now.

At least one Economist has pointed out that we've handled several Economic Recessions in the (fairly) recent past reasonably well, and were so relieved that we'd gotten over them that we didn't bother to investigate their actual causes and take adequate steps to avoid future problems or repetitions, with the results now coming home to roost.

It appears highly-probable that this is what we'll do in the larger matter here under discussion -- we'll slap an "It's All Bush's Fault" band-aid over it, and be surprised when the underlying infection suppurates and gangrene develops (if it hasn't already). *sigh*

[songblaze.livejournal.com]

At the very worst, I would like to see something like a Truth and Reconciliation. If we cannot prosecute people, then at least let us look at and condemn what was done.

Or, fuck, if we're going to say it was a good thing then let's at least get all of the dirty laundry out where it can be seen and call for an accounting of our lawless behavior. If people want to say this was a good thing, then let the truth come out and let them justify every detail.

And then let them say how we are so different from any country we have ever placed sanctions against, or the Iraqi government we toppled.