criminalizing policy

I don’t know how many people agree with the following letter in yesterday’s New York Times, but it expresses just the view that worries me most right now:

This investigation [of the Plame case] is not simply about the disclosure of the identity of an undercover C.I.A. operative or politics as usual. It involves the lies and deceit of an administration in taking this country into a war of incredibly stupid proportions in which the mainstream media, including your newspaper, played an important role.

The writer wants to make the criminal investigation of Karl Rove and Scooter Libby (and perhaps others) into a literal prosecution of the Bush Administration for its conduct in the Iraq war. Of course, I realize that the invasion was an enormously consequential decision: consider the 2,000 American dead and the more than 25,000 dead Iraqi civilians. At least in retrospect, it looks like a terrible choice. I also realize that the administration was dishonest in the prewar argument. However, politics is generally a serious business. Whether we provide military aid to Colombia, whether we permit or ban abortion, whether we prohibit or legalize cocaine, even where we set Medicaid reimbursement levels–these are decisions with life-and-death consequences. Moreover, participants in these debates quite routinely lie. It is crucial that we handle even the most consequential (and even the worst) of these decisions democratically, by arguing for one side and trying to mobilize popular opinion. Bringing criminal charges is a way of evading the democratic process.

Furthermore, I reject the diagnosis that we had a poorly informed national deliberation about whether to invade Iraq because some administration officials resorted to malicious leaks and general dishonesty. That’s true, but it’s far from the whole story. Even given the advantages that an incumbent administration holds in debates about foreign policy, the Bush team could have been challenged by the Pentagon, Congress, the Democratic Party, Bill Clinton and alumni of his administration, the Blair Government, academic experts, the press, and average citizens. The failure of almost all these groups to mount a challenge is evidence that we have a deep and widespread problem. Prosecuting people in the Plame case will do nothing to fix it.

I am not arguing that Patrick Fitzgerald should refrain from indicting anyone. He may conclude that laws were broken, and then the rule of law requires accountability. What I object to is the interpretation that the Plame investigation has put the Bush administration on trial for the whole Iraq war. That would be a dangerously undemocratic development–not to mention an excellent way for everyone else to dodge responsibility.

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3 Responses to criminalizing policy

  1. PW says:

    But there is a law prohibiting the government from hiding information from or deliberately deceiving the people. Somewhere in my blog archives is the exact text, but whatever it was, the Bush administration, by trumping up casus belli, deliberately deceived the people. That, apparently, is what Fitzgerald has stumbled on, as it were, during his investigation, and that is why, apparently, the investigation has “widened” to (for example) Italy, SISMI, and the “yellow cake” deception.

    I agree with you in principle. The immediate problem lies in, well, lies. You can’t have a political issue rightly decided in a democracy if those in control on information use it to deliberately deceive. God knows we have a dangerous and widespread problem. But dismissing the intervention of a The Fuzz doesn’t solve the problem either. It shouldn’t replace the vigilence of the voter. Doing what you’re doing — looking for ways to get people into the habit of taking responsibility for their government — is the way to go, the bottom line.

    I nonetheless reward you (!) with a quotation from the latest Common Cause calender, which just hit my desk: “Democracy is not something you believe in or a place to hang your hat, but it’s something you do. You participate. If you stop doing it, democracy crumbles.”

  2. Peter Levine says:

    From Tom Hilde, via email:

    I’m still not quite clear on how a process of broadening the Plame investigation into a broader indictment of the Iraq War is undemocratic unless it’s on purely rhetorical grounds. Yes, I agree, there are many people who were tacitly complicit in the justification of the war. And I recall pre-war that there was pretty good evidence that many of the charges or justifications for the war were trumped up, evasive, misleading, outright lies, etc., which makes the silence all the more devastating. There was, however, also a highly organized campaign to slander any criticism as unpatriotic and even treasonous. My wife is French (and no fan of Chirac) — I’ll tell you some time about the harrassment she went through here in the US for the simple fact of being French. This was the pre-war climate created by the administration and its media spokespersons. You’re right — those who willingly ignored shaky evidence are not off the hook. This includes John Kerry, Bill Clinton, and other supposed opposition figures. Out of self-interest, they did not wish to risk being labeled as treasonous and allowed what I consider (and considered) an utter disaster to take place. Many in the State Department and elsewhere in government were critical of the supposed evidence, but they were also quickly silenced through a series of demotions and firings, and then relegated to low-readership marginal news sources as places to express their views. The list is long.

    This is not simply a hindsight perspective either. I recall having long debates with friends and acquaintances about the war perhaps a year before the invasion — smart and generally informed people who accepted entirely the premises for the war laid out by the Bush administration. Any qualifications made in the face of vague or dramatized or demonstrably false evidence generally fell back on an ingrained Cold War logic of democratic domino effects in the Middle East as a justification for invasion and occupation of another country. Deliberation was based in constantly shifting goalposts and carefully managed rhetorical excesses.

    We did not have a poorly informed national deliberation so much as an entirely manufactured one in which it took real diligence, analysis, and often courage to see anything beyond than the manufactured debate and to speak about it. That in itself functioned in an exclusionary way, eliminating much of the public from genuine deliberation through either misinformation or chastisement. It is to say that there was no genuine deliberation if the basis of democratic deliberation involves accurate information, inclusion, transparency, and accountability.

    To make the simple claim that the Plame Affair is an overall indictment of the war is indeed simplistic. But La Republica’s recent dossier on the yellow-cake documents and other evidence shows a concerted effort to create an overall argument for the war. The Plame Affair is directly linked to Joseph Wilson’s editorial that the evidence claimed by the administration was false. Rumors have it — and DC is full of rumors — that Fitzgerald is expanding his investigation into the forged documents and that this may implicate Silvio Berlusconi, Dick Cheney, and John Bolton. We also knew pre-war that the office at DOD for post-war planning was occupied by two guys with masking tape on their door. Colin Powell knew that the aluminum tubes claim was false or supposedly in his own words, “bullshit.” State has since been transformed after Powell’s resignation into a top-down organization taking orders from the White House (this from people who work at State), rather than the bottom-up filtering process of information management under Rice. So much for that institution of checks and balances in foreign policy.

    But… there is a sense in which the Plame Affair may actually be a real indictment of the entire Iraq War. There’s no reason why anyone who supported it — especially those in positions to know better, including generally likeable officials such as Colin Powell — should necessarily be held unaccountable. This war shows very deep problems in the American system and to acknowledge that sooner rather than later may be painful, but necessary.

    If what you mean by “dangerously undemocratic development” is that we may be looking at a scapegoating that helps other to “dodge responsibility,” then doesn’t that apply equally or more so to the entire policy from pre-war to post-war of the Bush administration? And then shouldn’t accountability start somewhere. I worry more about the damage already done to American democracy and international legitimacy and the further damage that could be done by allowing those who manufactured a devastating foreign policy to be relieved of any accountability. The difference is that I think very good evidence shows that this runs deeper than the Plame Affair.

  3. Peter Levine says:

    Not as a response to Tom Hilde, but simply because it’s relevant and well stated, here is an excerpt from Patrick Fitzgerald’s news conference:

    QUESTION: A lot of Americans, people who are opposed to the war, critics of the administration, have looked to your investigation with hope in some ways and might see this indictment as a vindication of their argument that the administration took the country to war on false premises.

    Does this indictment do that?

    FITZGERALD: This indictment is not about the war. This indictment’s not about the propriety of the war. And people who believe fervently in the war effort, people who oppose it, people who have mixed feelings about it should not look to this indictment for any resolution of how they feel or any vindication of how they feel.

    This is simply an indictment that says, in a national security investigation about the compromise of a CIA officer’s identity that may have taken place in the context of a very heated debate over the war, whether some person — a person, Mr. Libby — lied or not.

    The indictment will not seek to prove that the war was justified or unjustified. This is stripped of that debate, and this is focused on a narrow transaction.

    And I think anyone’s who’s concerned about the war and has feelings for or against shouldn’t look to this criminal process for any answers or resolution of that.

    They will be frustrated and, frankly, it would just — it wouldn’t be good for the process and the fairness of a trial.

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