On Charles Fried's "Political Crimes and No Punishment"

Charles Fried says that the law is not the law when the crimes are "political crimes" committed by a highly-placed Republican:

The Washington Monthly: 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...

Even though Bush, Cheney, et al. did commit what Fried characterizes as crimes, there should be no trials, no findings of fact, and no punishments: "[when] a sane and moderate society... changes leaders and regimes, those left behind should be abandoned to the judgment of history..."

My first thought is: Hmmm. I don't remember Charles Fried out there defending Clinton when the Republicans sought to impeach him for lying to the grand jury. I wonder how he distinguishes the cases in which the high officials are worth defending from those in which they are not.

Hilzoy ripostes:

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 think that the shoplifter should not be punished for his crime.

More to the point, it is possible to commit 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...

I agree with Hilzoy.

If Bush and Cheney and Rumsfeld and Yoo and Addington and the other prime movers want to plead necessity in front of a jury, let them plead necessity--and let the jury find whether their political crimes were in fact necessary. That's what juries do: find out what happened in fact. To say that any rogue vice president's judgment of necessity is unreviewable--well, even the Old Romans required the passage of the senatus consultum de re publica defendenda before the consuls' judgment of necessity trumped the law.

Comments

[Charles]

I agree.

Any person who loves his/her country and believes the oath of defending it against all enemies would be willing to do what is necessary-- but then, recognizing that the law is our principal defense against those who would do us harm, to suffer any punishment imposed by a jury of peers.

If a CIA officer genuinely believes that there is a ticking time bomb and that the only way to prevent mass death is through torture, then he should commit the crime of torture to prevent the greater crime... but then let him also be willing to face judgment in open court. If he knows that judgment is coming, then he almost certainly will not commit crimes of the kind we have seen throughout the Bush Administration.

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[Aaron]

To be clear: Not "Self-defense"- this is "defense of others" and the model penal code is clear: for a 'necessity' defense, you must be correct.

[MattYoung]

Trial by blog.

[Rusty]

On a slightly lighter note, the Detroit Free Press (www.freep.com) is running a countdown series of ten reasons we are glad George Bush is leaving.

Suppose we prosecute Bush administration officials, how many members of Congress, of both parties, will be prosecuted for aiding and abetting?

[Neal]

The administration sought to "protect" the US.

The "protection" that they provided is a type that destroys what they seek to protect.

And we're still not sure whether that destruction was the original intent.

Trials are in order. But we must move on to "protect" the union.

Eventually nothing will be illegal in the name of "protection".

Precedent has been set. Unprosecuted, it will strengthen. Democrats can be tyrants also.

[Tangurena]

>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.

If you bother to listen to the speeches of the Nazi party during their ascendency, you hear exactly the same rhetoric - that the homeland is under attack by ruthless outsiders (jews and commies in the case of the 3rd Reich; islamofascists and liberals in the case of the bush administration). Fried is depending on the ignorance of his readers to make his argument, which suggests that his editorial is nothing more than dog whistle politics.

[Bo Parker]

"...let the jury find whether their political crimes were in fact necessary. That's what juries do: find out what happened in fact."

Well no, juries are not scientific methodologies leading to the rejection of the null hypothesis (probabilistic "facts"). They are socio-political institutions that are our chosen form of deciding who gets punished. They are not designed to enlighten.

South Africa's truth and reconciliation process is more likely to enlighten.

[Neil B ☺]

I do figure there's a case to be made for extenuating circumstances, but it's so easy to forget: the whole idea of talking of "war crimes" etc. already implies you are in danger from someone else and taken some hits or impositions from them. After all, you aren't supposed to be whacking on them anyway unless you have some such excuse to start with. Hence it is equally silly, per Israel, for the apologists to say "What if Belgium lobbed missiles into France" etc - uh, that's not supposed to be an excuse for doing whatever you want, and BTW France wasn't trying to forcibly resettle and repress parts of Belgium in violation of International Law. BTW also, Belgium is a real nation state and Gaza is not (well, what is Gaza?) Nation states have more rights and territories that aren't' have less but also more protection, sort of like minors in law AFAIK.

[Chris Brown]

"If you cannot see the difference between Hitler and Dick Cheney, between Stalin and Donald Rumsfeld, between Mao and Alberto Gonzales,....."

Wouldn't more apt comparisons be Cheney and Hermann Göring, Rumsfeld and, say, Wilhelm Keitel, and Gonzales and Hans Frank, all of whom were sentenced to death by the Nuremberg Tribunals?

[mistah charley phd]

I have a very hard time seeing any relevant difference between Dick Cheney and Dick Nixon.

I think it's really too bad Dick N. didn't get his fair trial. We owe Dick Cheney a fair trial - that is, we owe him the fairness of it; we owe the trial itself to the American people, and the Constitution.

[Lex]

Precisely, particularly in the case of torture. Let them take their chances in front of a jury.

[Maynard Handley]

I'm saddened, but not surprised, that Brad felt no need to take issue with this particular Fried claim:

" against a terrifying threat by ruthless attackers with no sense of moral restraint at all..."

This is, I guess, just one more brick in what I hope will soon enough be referred to as "The bedwetting of America".
Just look at the adjectives piled into that sentence, all with no need to be justified --- this simply an objective description of reality is it not?

I could throw in something about Hamas' leaders doing what needs to be done "against a terrifying threat by ruthless attackers with no sense of moral restraint at all...", but honestly, why even bother?
Since the dawn of time, THEY, the guys on the other side, are ruthless and lacking moral restraint, whereas our firebombing of Dresden was fully justified by something or other. Fried may believe he is making some deep moral claim her, but that simply shows the extent to which he is an idiot.

What is new is the "terrifying threat" part. Once upon a time people reserved words like that for what really was terrifying --- Nazi's conquering Europe in every direction, thousands of fusion weapons ready to fly at a moment's notice --- and politicians felt that part of leading was to show courage in the face of such terrors. Nowadays, apparently, the manly thing to do, as evidenced by both GOP and Democratic party, is to run shrieking under the bed at the sight of a shadow, encouraged all the while by our politicians, our pundits, and our TSA employees.
The bedwetting of America indeed. The greening of America may have been a dumb period in the history of a nation, but god knows, with its earnest hopes for a better future, it make clear who the real children are when comparing hippies with Cheney and the rest of his Nixon minions.

[frankcross]

The argument is a pragmatic one, and this discussion is all too moralistic.

Any prosecution would distract attention from Obama's agenda. It could backfire and hurt his popularity as well as his ability to gain Republican votes. I doubt an American jury convicts elected officers for war crimes, especially given the difficulty of proof and the defense lawyers' ability to play the threat to America card (and "no attacks since 9-11"!) An acquittal seriously backfires on the Obama administration, making it look vindictive.

The only thing to be gained is a feeling of self righteousness, and there is much policy to be lost.

[the mythical little guy]

"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..."

Sounds like Stalin ca. June, 1942

[the mythical little guy]

"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..."

You're torturing the wrong people.

[Ken]

Even if the US doesn't hold trials, that doesn't mean they won't be held. Many people from this administration will have to be very careful about traveling out of the country, as some governments are rather serious about their obligations under the Geneva Conventions and various international treaties.

[Ed]

Actually, Fried has argued against the Clinton impeachment (though I can find no record that he did so at the time.)

[Don't you mean, "*Now* Fried argues that the Clinton impeachment was misguided"? I see no sign he argued against it in the past.

:-)]

From Boston Globe op-ed, 10/23/07

"I think of the cases that trouble us today as the extreme tails of a normal distribution. There are instances that are within the law's scope, but are so trivial that it passes all reason to extend the law to them. The impeachment, only the second in our history, of President Clinton for his perjury about his relation to Monica Lewinsky was like that. Roosevelt, Lincoln, and probably Bush were operating at the other extreme end of the normal distribution.

"And how are we to tell when we are at those tails? ... It is a matter of prudence and reasonableness. One of the horrors of the Independent Counsel mentality was that discretion, the correction of the legal by the reasonable, has became almost impossible. Every incident becomes a precedent. And what was tragedy in Watergate and Iran-Contra became farce in the Lewinsky affair."