Sunday, January 01, 2006


In reading a book by Alan M. Dershowitz, entitled: The Best Defense, I came across something that seemed germane. This quote comes from an appellate court decision:

Of course, we all suffer when, in Cardozo's classic phrase, the criminal goes free because the constable has blundered. There are those who argue that on occasion illegal methods must be employed to preserve the rule of law. Justice Brandeis responded eloquently to that argument:

"Our government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself."

Dershowitz goes on to write:

the decision was made -- a calculated and deliberate decision at the highest level -- to violate the laws, to engage in "civil disobedience" in the interest of a higher cause."


But in the last analysis, it was right that the government should have lost its case. It is one thing for the agents of the government, acting under enormous pressure, to take expedient actions deemed necessary to protect important values. It is quite another for the courts, reflectively reviewing such actions in the context of a criminal prosecution, to accord them an air of constitutional legitimacy. As Associate Justice Robert H. Jackson observed in his dissenting opinion in the World war II Japanese relocation cases: when a government official violates the Constitution, "it is an incident". But if the courts then approve his actions, "that passing incident becomes the doctrine of the Constitution. There it has a generative power of its own, and all that it creates will be in its own image."

So it would seem to me that, even in the case where the offending agents are acting in aid of a "higher purpose", the greater good would not be well served by condoning the illegal behaviour no matter how well-intentioned. It would be hard for me to believe that Bush and his cronies were engaged in anything that reasonable people would characterize as a "higher purpose". More likely, it was a matter of getting their enemies.

One of the things that separates "us" and "them" is the notion of being a nation of laws. "We" think that the idea is that we are all equally constrained and protected by laws and these laws are enforced blindly i.e. it doesn't matter to whom the laws are being applied. "They" think of laws as tools to be used selectively to benefit themselves and to get others (those they consider their enemies).

For fundamentalists like BushCo, playing by one set of rules (rather than one set for us and another for them) is absurd. They are quite comfortable criticizing people for doing something that they themselves do -- IOKIARDI*. For us, it's the behaviour that is evaluated (not the behaver) i.e. if it's wrong, then it's wrong whether you or I do it. I hate their hypocrisy.

It is so telling that a commenter at HufPo asks: "Could any of you point to specific incident in your life that worsened under the Bush administration caused by a Bush Policy?" The implication seems to be that if it didn't hurt you, then it's not bad. They obviously don't understand the sentiment behind Donne's "any man's death diminishes me". So... because I was not killed in Iraq, because I was not arrested and held without charge or legal counsel, because I was not abandoned to the fates in New Orleans, because I was not denied my legal rights because I was gay, somehow that's OK? What kind of person thinks this? Obviously someone who hasn't heard of Martin Niemoller.

Never mind that it's easy to answer this preposterous question with many examples: we live in a less safe world with more enemies and fewer friends, we live in a more damaged/polluted world, many more Americans have lower real wages and no health care and all Americans are saddled with the burden of a larger national debt. No one knows how many have had their rights violated but surely all have been negatively affected by the culture of crony corruption epitomized by the Bush administration.

For them, rather than being good for goodness sake, it's simply a matter of: what's in it for me? That's why I'm so fond of Fitz, Comey and Margolis, though it's a shame that, instead of being able to expect that appointees would be competent and principled, we delight in the rare occasions when they are.

*It's OK If A Republican Does It
(or IOKIYAR, It's OK If You're A Republican)


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