The "Ingenues" Of The Beltway

I do not know if they are ingenues or are merely playing ingenue, but Glenn Greenwald's piece ridiculing the basic and blatant illogic of Ruth Marcus' embarrassing (for her) column arguing against holding the Bush Administration accountable for its crimes tell us all that is wrong with the Beltway - they are either fools or knaves. Ms. Marcus would have us either believe she was an idiot or malevolently dishonest.

Read Glenn's piece for the main retort - which, I feel Glenn would admit, is so blatantly obvious that it is humiliating to Ms. Marcus that it need be done. One point Glenn does not make is that the Reagan pardon of two lawbreakers came AFTER they were prosecuted and convicted. To wit, her argument is for clemency from a pardoning power - not for not prosecuting the lawbreakers.

More . . .

As I wrote, Glenn makes the obvious point about deterrence as the principal policy rationale behind criminal punishment. But there are other questions for Ms. Marcus.

For example, she claims her ambivalence stems from "How much can and should government infringe on personal privacy and individual liberties in the name of guarding against risks to public safety? What should be the role of criminal law when government officials overstep permissible bounds in the name of national security?"

The answers to these questions are so obvious that it strikes me again that Ms. Marcus is providing us the question 'is she an idiot or a malevolent dissembler?' Those questions are answered by the laws we make. This is called democracy Ms. Marcus. The permitted level of government infringement on liberty is that which our laws and Constitution allow. No more. If we wish to give away our freedoms, we do it by lawful means. To grant the Executive Branch the power to determine which laws to follow is precisely what the Founders fought against.

What action should be subject to criminal law? Those that ARE subject to the criminal law. This is not a gray area. The actions under discussion regarding the Bush Administration are clearly subject to the criminal law.

Perhaps what Ms. Marcus intends is to argue for prosecutorial discretion. If so, she does a poor job of it for prosecutorial discretion means what it says - discretion on a case by case basis. Since the list of lawbreakers is long, Ms. Marcus would no doubt have found it impossible to address each and every case but I think she is incapable of making the argument for she does not understand the concept. More importantly, the high profile case is the one prosecutors are more prone to prosecute precisely due to its high deterrent effect.

Perhaps she is arguing for President Bush to issue a blanket pardon. A sort of "basket pardon" similar to the "basket warrants" that the Democratic Congress capitulated to in 2006. In which case, she should just say so.

I would say this - the very concept is the opposite of what the idea of a pardon - where each case is evaluated individually. If Ms. Marcus is intent on a pardon for Vice President Cheney, then she should say so. This game playing is tiresome.

At heart, it seems to me, Ms. Marcus does not really believe something she wrote:

what's most crucial here is ensuring that these mistakes are not repeated.

To the contrary, she wants these acts repeated if "those who acted wrongly in pursuit of what they thought was right" are the ones doing it. She wants torture legalized. She wants warrantless wiretapping legalized. Except of course, if the persons who did it thought it was wrong.

In the end, more so even than the Cheneys of the world, it is the Ruth Marcuses of the world who truly sicken me. At least Cheney plays no games with us. He is a torturer and happy to have done it for he thought he was right. Ms. Marcus will feign upset but ultimately endorse it. I have no patience for an ingenue or a liar.

Speaking for me only

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    I find this (5.00 / 1) (#1)
    by lilburro on Sat Dec 20, 2008 at 09:30:55 AM EST
    "but they thought they were right!" argument to be most pernicious.  Scott Horton quotes Prof. McConnell on his blog:

    As I told one former CIA lawyer who asked me about the "good faith" defense in these cases, the quality of the memos is so poor, the process of producing them so at odds with government standards, and the general knowledge is so high that torture and cruelty are prohibited, that it difficult to see how good faith could possibly provide a defense.

    We have a lot of ingenues in the WH as well (and at the Wall Street Journal).  And if you believe the torture memos are worth the paper they're written on, there is still a six month period when the CIA didn't even have a legal memo - it had been withdrawn (by Goldsmith two days before he resigned)!  So what are you going to do about that?

    I would think (5.00 / 1) (#2)
    by andgarden on Sat Dec 20, 2008 at 09:38:49 AM EST
    that maybe they could get some kind of mistake of law defense, and that was probably the purpose of all those iffy memos. But I don't really buy that any of them thought it was legal, beyond the Nixonian sense of "legal."

    hmm (none / 0) (#4)
    by lilburro on Sat Dec 20, 2008 at 09:47:59 AM EST
    I'd have to imagine that would be pretty weak...you could definitely find admin. people who opposed those memos and gave/wanted to give contrary legal advice.

    Mistake of law is no defense (none / 0) (#7)
    by Molly Bloom on Sat Dec 20, 2008 at 10:15:56 AM EST
    I haven't practiced criminal law in years (and should never be mistaken for an expert in the area) but as I recall mistake of law is no defense to criminal prosecution.

    In criminal cases, a mistake of applicable law is not a recognized defense, though such a mistake may in very rare instances fall under the legal category of "exculpation". In criminal cases a mistake of fact is normally called simply, "mistake".

    This is just corporate executive thinking at its worst.  All those iffy memos were an idiotic attempt at abuse of the business judgment rule - specifically the reliance on the advise of experts in their field (which is not discussed in the wiki article linked to)... "my lawyer told me it was Ok so you shouldn't second guess me" defense. Except that isn't a defense in criminal law either. But it sounds good (snark).  


    I think it is a defense in some places (none / 0) (#9)
    by andgarden on Sat Dec 20, 2008 at 10:24:48 AM EST
    under some circumstances. For example, if you had a written interpretation of a statute from an official source (like the Attorney General).

    Maybe but I would like to see a case on it (none / 0) (#10)
    by Molly Bloom on Sat Dec 20, 2008 at 10:39:30 AM EST
    To me "relying on the Attorney General" is relying on an expert in his field.

    The attorney general hands you a memo interpreting the statue proscribing murder. Gonzo says it doesn't apply when people who vote Democratic in elections where George W. Bush is running are murdered by right thinking conservatives provided they  are carrying the latest Bill Kristol column in their right (never left) pocket.

    Ignorantia juris non excusat


    I think the AG is outside (5.00 / 1) (#24)
    by NMvoiceofreason on Sat Dec 20, 2008 at 01:24:24 PM EST
    the reasoning in GONZALES, ATTORNEY GENERAL, et al. v. OREGON et al. Absent a specific statutory authority, and with reasoning contrary to existing precedent and law, the memo's do not change the law nor have the effect the AG would suggest they do.

    Since it is a SCOTRP decision, people could not relied on such memorandum's after 2006, and given the strong precedent cited in the opinion, even before that.

    There is no good faith argument when you know the law you are twisting is baseless and is no defense.


    Well, like I said, (none / 0) (#11)
    by andgarden on Sat Dec 20, 2008 at 10:50:35 AM EST
    I don't think anyone's going to believe that they thought this was legal, buuut, here's the model penal code:

    MPC §2.04(3) A belief that conduct does not legally constitute an offense is a defense . . . when:

    the statute or other enactment defining the offense is not known to the actor and has not been published or otherwise reasonably made available prior to the conduct alleged; or

    he acts in reasonable reliance upon an official statement of the law, afterward determined to be invalid or erroneous, contained in (i) a statute or other enactment; (ii) a judicial decision, opinion or judgment; (iii) an administrative order or grant of permission; or (iv) an official interpretation of the public officer or body charged by law with responsibility for the interpretation, administration, or enforcement of the law defining the offense.

    But I don't know how they might be charged, so. . .


    Thanks for the MPC reference. (none / 0) (#12)
    by Molly Bloom on Sat Dec 20, 2008 at 11:03:27 AM EST
    Most of that I am familiar with in one form or another.  I have to say (iv) is shocking to me. However, it does require  reasonable reliance.

    Thinking out loud, can it be reasonable when you tell the public officer to write a memo to justify what was done, after it was done?

    And if the memo was written after the initial acts, can the subsequent ones be said to have been done on reasonable reliance?


    Let the defense be raised (none / 0) (#13)
    by Big Tent Democrat on Sat Dec 20, 2008 at 11:07:29 AM EST
    in a court of law, the proper venue for criminal matters.

    I think if the memo were written after (none / 0) (#14)
    by andgarden on Sat Dec 20, 2008 at 11:14:39 AM EST
    there was simply no reliance at all, and thus no defense.

    Section iv is where the MPC departs from the traditional approach.


    I believe the memo was after (none / 0) (#18)
    by Molly Bloom on Sat Dec 20, 2008 at 11:55:23 AM EST
    but could be wrong.

    If they really thought (5.00 / 2) (#3)
    by Fabian on Sat Dec 20, 2008 at 09:44:34 AM EST
    they were in the right, if they really thought that they were doing things in good faith and that would be enough to exonerate them, then it stands to reason that they would document all of these reasons and rationales extensively in order to defend themselves, if need be.

    When secrecy, not disclosure is the order of the day, it's easier to believe in guilty consciences than clear ones.


    What is left to say analytically speaking (5.00 / 4) (#6)
    by Militarytracy on Sat Dec 20, 2008 at 09:54:45 AM EST
    after reading Greenwald?  I have a lot of "feelings" though. The lack of boundaries possessed by the shameless dictatorship this administration pursued as part of the "prize" that came with White House causes me fits of rage.  The shameless lies that were told that brought us the Iraq War and directly affected my family right off the bat, and then later the entire nation, often makes me want to scream on some days.  When I realized that nothing could be done in the immediate future to address this dictatorship's lawlessness I had to push down everything that had happened and continued to happen due to all the lies, abuse of people and their families, and I have to blog and write it out so that I don't end up with the situation survived getting the best of me and destroying my faith in people and my country.  Now that the media and the nation are beginning to talk about our options as this dictatorship takes its leave, that pushed down bile rises in me.  I do my best to only allow it to come forth in a way that can be useful and coherent but sometimes you can't imagine the effort I have to use there.  Having been drastically affected by this dictatorship this go around I hope everyone understands that unless you want your family to feel it next, this can't happen again. Anything that leads our political leaders to believe that breaking laws willfully can be free of all oversight and actual consequences is so blessed dangerous we just can't even imagine but we need to.

    TL and Armando are in Greenwald's (5.00 / 1) (#16)
    by oldpro on Sat Dec 20, 2008 at 11:49:40 AM EST
    second update.

    You either (5.00 / 1) (#23)
    by NMvoiceofreason on Sat Dec 20, 2008 at 01:12:32 PM EST
    have the Rule of Law or you don't.

    Upholding Values (none / 0) (#5)
    by pluege on Sat Dec 20, 2008 at 09:50:43 AM EST
    deterrence as the principal policy rationale behind criminal punishment.

    while deterrence is important, the following IMHO are of greater important:

    • stopping additional crime, i.e., bush, cheney, and the rest of the bush regime criminals should have been investigated and stopped as soon as reasonable suspicion of their crimes was known in order to end their ability to commit additional crimes (it also would have lessened their ability to destroy evidence).

    • upholding rule of law as a value. Consistency of a value or lack there of impacts an entire value system. If a value can be violated without accountability, it brings into question the seriousness of the entire value system.

    • equality under the law. Exceptions for certain types of individuals according to social, financial, or job status undermines the whole concept of law and justice.

    Is this just the tail end of Bush-philia? (none / 0) (#8)
    by ThatOneVoter on Sat Dec 20, 2008 at 10:20:34 AM EST
    I've never seen a President so deeply loved, and for so little reason, as Bush.
    People really fell head over heels for him. Maybe protecting the loved one is what's behind Marcus's silly article.

    What?!? Deeply loved? (none / 0) (#15)
    by oldpro on Sat Dec 20, 2008 at 11:48:03 AM EST
    I think you have confused Bush with Reagan.

    Bush is not 'deeply loved,' he is defended and explained and rationalized ad nauseam...but loved?  Don't think there is any evidence of that.  Look at his approval/disapproval ratings.


    I'm not confused. I'm not talking so (none / 0) (#17)
    by ThatOneVoter on Sat Dec 20, 2008 at 11:51:19 AM EST
    much about the general public as his most fervent admirers, which includes most of the the chattering class in DC. There are also a few historians who have met him and praise him to the skies.
    These people are deeply, emotionally attached to Bush in a way that didn't happen with Clinton, or even with Reagan, IMO.
    Reagan was an icon, but W. is the personality who draws these people in---there is no ideology or rationality involved.

    Wow. Just shows to go ya... (none / 0) (#20)
    by oldpro on Sat Dec 20, 2008 at 12:24:23 PM EST
    ...two people looking at the same set of facts and drawing opposite conclusions!



    Chris Matthews getting all worked (none / 0) (#27)
    by ThatOneVoter on Sat Dec 20, 2008 at 03:33:23 PM EST
    up over the codpiece.. that sort of thing.
    That wasn't an isolated occurrence.
    It was creepy as well as unprecedented, in my memory.

    Yes. Creepy/wacky. (none / 0) (#28)
    by oldpro on Sat Dec 20, 2008 at 04:07:58 PM EST
    But that's Matthews...he winds himself up and then can't stop performing in a desperate attempt to be both original and relevant.  He's one of those 'blurters' who doesn't know what he's going to say until he hears himself say it.  No self discipline at all.  None.

    Has nothing to do with Bush as president or as a person.  It has everything to do with Tweety's embarrasing persona, too cute by half.

    I hope he runs for the Senate...get him off the television, win or lose.


    It wasn't just Matthews. Sorry, but (none / 0) (#30)
    by ThatOneVoter on Sat Dec 20, 2008 at 06:21:58 PM EST
    I can't believe you don't know what I"m talking about.
    The adulation Bush got until just recently was astounding.

    I dunno, kid...I just deon't see it! (none / 0) (#31)
    by oldpro on Sat Dec 20, 2008 at 06:25:54 PM EST
    Maybe it's me.

    Sunstein says no prosecution: (none / 0) (#19)
    by oculus on Sat Dec 20, 2008 at 12:12:18 PM EST
    While trying to have it both ways. (5.00 / 2) (#21)
    by oldpro on Sat Dec 20, 2008 at 12:32:36 PM EST
    I guess his 'establishment insider' application has now been accepted.

    Take him down, Glenn...BTD.  Oh, right...you did that.


    I seem to recall reading Obama, (none / 0) (#22)
    by oculus on Sat Dec 20, 2008 at 12:34:35 PM EST
    post-election, stating U.S. government would not prosecute; implying, perhaps, other prosecutorial bodies, such as that in the Hague, may do so.  Can't find a link, however.

    Perhaps. (none / 0) (#25)
    by oldpro on Sat Dec 20, 2008 at 01:45:37 PM EST
    The wicked web of deceits (none / 0) (#26)
    by wurman on Sat Dec 20, 2008 at 01:46:27 PM EST
    Ford pardoned Nixon.

    Reagan was found to be so far out to lunch that the House committee(s) & investigators didn't have the guts to charge him in selling arms for hostages & to finance the Contras.  Additonally, his actual henchthugs "walked" away, read here:

    After Independent Counsel Lawrence E. Walsh's appointment in December 1986, 14 persons were charged with criminal offenses. Eleven persons were convicted, but two convictions were overturned on appeal. Two persons were pardoned before trial and one case was dismissed when the Bush Administration declined to declassify information necessary for trial. On December 24, 1992, President Bush pardoned Caspar W. Weinberger, Duane R. Clarridge, Clair E. George, Elliott Abrams, Alan D. Fiers, Jr., and Robert C. McFarlane.

    Clinton was subject to a botched impeachment (doomed to fail) for a sexual peccadillo that had nothing to do with laws or governance, which destroyed the potential to avoid the appearances of a "get even" (& DOOMED to fail) effort by the Demcratic majorities against Bush + Cheney.

    Where's the American Shakespeare who will write up the history plays that chronicle this crap--or is Oliver Stone in the correct neighborhood???

    No, Stone is not "in the right (5.00 / 1) (#29)
    by oldpro on Sat Dec 20, 2008 at 04:55:18 PM EST
    neighborhood."  Not in "JFK" anyway.  Good film but fiction through and through.

    That doesn't mean I think I know what actually happened at Dealy Plaza...I don't.

    Perhaps 'our Shakespeare' will appear in the next hundred years or so...a 'new' Norman Mailer or Truman Capote to take on our checkered history.

    I thought Nixon would/should have gone to jail but for Ford's pardon.  Not sure what the country thought about that but they were done with the Nixon years by sending Ford home to Michigan.


    Agreed on Stone & fiction. (5.00 / 1) (#32)
    by wurman on Sun Dec 21, 2008 at 07:45:51 PM EST
    Shakespeare's history plays are also substantially fiction.  However, the works  contributed to a long, steady slide into a rejection of monarchy as the effective means of government in England.

    Perhaps Stone is in THAT neighborhood, especially re: our "imperial presidency."

    I'm not much of a fan, so the meanings of such things are a mystery to me. Movies are the US genre, but I have no sense of their impact on the general public.