Balkinization  

Saturday, January 26, 2008

Michael Mukasey, Robert Jackson and George Orwell

Marty Lederman

The Attorney General has hung two portraits in his office -- of two of the very finest wartime English-language writers of the modern era:

The first is of Justice, and Attorney General, Robert Jackson, author of the famous Youngstown concurrence (mention of which was so conspicuously absent from DOJ memos earlier in the Bush Administration concerning presidential and legislative war powers).

A promising omen, perhaps? Jackson, of course, went from the Attorney General's office to the bench. One of the more important passages from his Steel Seizure opinion -- less famous than the tripartite scheme for assessing executive power, but in the view of some (cue Sandy), equally noteworthy -- is the opening paragraph, where Jackson explains that the view from the bench can be quite different from the perspective of a presidential advisor in wartime:
That comprehensive and undefined presidential powers hold both practical advantages and grave dangers for the country will impress anyone who has served as legal adviser to a President in time of transition and public anxiety. While an interval of detached reflection may temper teachings of that experience, they probably are a more realistic influence on my views than the conventional materials of judicial decision which seem unduly to accentuate doctrine and legal fiction. But, as we approach the question of presidential power, we half overcome mental hazards by recognizing them. The opinions of judges, no less than executives and publicists, often suffer the infirmity of confusing the issue of a power's validity with the cause it is invoked to promote, of confounding the permanent executive office with its temporary occupant. The tendency is strong to emphasize transient results upon policies -- such as wages or stabilization -- and lose sight of enduring consequences upon the balanced power structure of our Republic.
In retrospect, we now know that this passage was written largely because Justice Jackson recognized that AG Jackson had engaged or acquiesced in some conduct that was very difficult, if not impossible, to defend -- most significantly, FDR's and Hoover's unlawful wiretapping; possibly also Jackson's own defense of the sale of destroyers to England (although personally I've come to think that was a closer legal question than many have assumed), and of the seizure of various domestic enterprises.

Michael Mukasey, of course, has moved in the opposite direction: from the bench to the Attorney General's office. What effect might his former judicial perspective have on the executive actor's ability to recognize and overcome "mental hazards," such as the natural tendency in times of crisis and anxiety to emphasize "transient results" over "enduring consequences"? Only time will tell.

The second portrait on Judge Mukasey's wall is of George Orwell. It seems that Judge Mukasey is a big fan of Orwell, especially of his renowned 1946 essay, "Politics and the English Language." Justice Department spokesman Peter Carr explained that when Mukasey was a judge, he assigned that essay to his incoming law clerks, and "[i]t's one of the first things our speechwriter received as well," said Carr.

In that essay, Orwell famously wrote of how, "[i]n our time, political speech and writing are largely the defence of the indefensible."

This coming Wednesday, during the DOJ oversight hearing, if the Attorney General is asked whether waterboarding is "torture" or "cruel treatment"; if he is asked whether stress positions and severe sleep and sensory deprivation are intended to result in "severe physical or mental pain or suffering"; and if he responds that those are difficult questions that can only be analyzed by careful parsing of (secret) OLC memos -- if he uses the euphemism "enhanced interrogation techniques," which comes from the German "verschärfte Vernehmung," a phrase coined by the Gestapo and the Sicherheitsdienst in 1937 -- it might be well to keep in mind what Orwell had to say about the degradation of speech as it is put to the task of defending the indefensible:
Things like the continuance of British rule in India, the Russian purges and deportations, the dropping of the atom bombs on Japan, can indeed be defended, but only by arguments which are too brutal for most people to face, and which do not square with the professed aims of the political parties. Thus political language has to consist largely of euphemism, question-begging and sheer cloudy vagueness. Defenceless villages are bombarded from the air, the inhabitants driven out into the countryside, the cattle machine-gunned, the huts set on fire with incendiary bullets: this is called pacification. Millions of peasants are robbed of their farms and sent trudging along the roads with no more than they can carry: this is called transfer of population or rectification of frontiers. People are imprisoned for years without trial, or shot in the back of the neck or sent to die of scurvy in Arctic lumber camps: this is called elimination of unreliable elements. Such phraseology is needed if one wants to name things without calling up mental pictures of them.
[UPDATE: Much, much more on these topics from emptywheel and from Scott Horton.]

Comments:

That tremor you feel is Orwell spinning in his grave at being co-opted thus.

Your snippet from the "politics and language" essay, paints only half the picture, for as surely as sophists must use gentle language when describing their ugly realities, so too they must bring to bear language that calls up mental pictures favorable to their position no matter how inapt or intellectually dishonest. Such is the nature of the game.

Thanks as always for a great post and a good read.
 

Well gee Marty, I suppose we might also pause here to consider the notion that a fraudulent "legal opinion" issued by an OLC lawyer acting under the supervision of the White House to fabricate pretexts for committing WAR CRIMES against prisoners might amount to a lawful grant of immunity, the practice of law, or the faithful execution of ones sworn duty as an officer of the United States.

The situation here is simple. The administration has been engaged in a criminal conspiracy to commit war crimes since 2001. The evidence of those crimes is beyond doubt on the strength of the administration's own public documents. Mukasey can either do his job and enforce the law, or he can join the conspiracy and obstruct justice. There is no in-between, and there aren't any gray area: facts are facts and Mr. Mukasey needs to face them squarely.
 

@Charles: Since he wouldn't give a straight answer at the confirmation hearings I've assumed we're in a "join the conspiracy" scenario, yeah?
 

That's sure how it looks to me Robert, but I've been reserving judgment pending Mr. Mukasey's next appearance before the Judiciary Committee.

1) Water-boarding would still be a crime p. 18 USC 113 and 18 USC 2441 even if it wasn't also a violation of the torture statute. It follows that destroying the tapes was obstruction etc. regardless of the torture question.

2) The unlawful detentions and interrogations are merely one element of a larger conspiracy to commit war crimes against prisoners under the direct authorization of the 2001.11.13 Bush PMO and the 2001.09.25 OLC memo by Yoo on the President's war powers in the GWOT.
 

Also from Justice Jackson, while serving as Chief US Prosecutor at Nuremberg, from The Common Plan or Conspiracy and Aggressive War:

". . .Count One of the Indictment charges the defendants with conspiring or having a common plan to commit crimes against peace.

Count Two of the Indictment charges the defendants with committing specific crimes against peace by planning, preparing, initiating, and waging wars of aggression against a number of other States. . .

The charges in the Indictment that the defendants planned and waged aggressive wars are charges of the utmost gravity. War is essentially an evil thing. Its consequences are not confined to the belligerent states alone, but affect the whole world.

To initiate a war of aggression, therefore, is not only an international crime; it is the supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole."
[emphasis added]

What, General Mukasey, would Orwell and Jackson make of "Operation Iraqi Liberation, er, Freedom" and the doctrine of "preventive war?"
 

I don't suppose it would do a bit of good to point out how over the top and intellectually dishonest these comparisons of your country to Nazi Germany and the Soviet Union are?

Nah, of course not...

Why bother.
 

Bulletins from the Ministry for Torture, from Balkinization contributor, Scott Horton.
 

Bart writes:
I don't suppose it would do a bit of good to point out how over the top and intellectually dishonest these comparisons of your country to Nazi Germany and the Soviet Union are?

Nah, of course not...

Why bother.


While I don't think its accurate to suggest that the current state of affairs in the US mirrors those of the Soviet Union or Nazi Germany, there may be a value in avoiding the mistakes others have made.
 

Bart DePalma,

Orwell himself, in the first quoted sentence, compares his own nation's behavior as a (relatively benign) imperialist in India to "the Russian purges and deportations, the dropping of the atom bombs on Japan." As a person of Indian descent, I don't give the Brits a lot of credit, but they certainly treated Indians better than the Soviet Union treated its own people or than the U.S. treated the inhabitants of Hiroshima and Nagasaki.

The point is that some behavior is morally questionable, and trying to phrase it nicely doesn't erase the question.
 

Has there ever been a case where the winning nation of a war (especially a superpower) has charged its own leaders with "War Crimes"? Or has the United Nations made such charges?
 

Has there ever been a case where the winning nation of a war (especially a superpower) has charged its own leaders with "War Crimes"?

I don't know the answer, and I don't know whether you have Bush and his cohorts in mind (especially in light of the fact that the U.S. cannot "win" the war in Iraq), but, if you do, I suggest that we do not try them, but send them to the Hague to face war crimes charges. That would have two advantages. First, it would be a sign that we were ready to rejoin the international community, and, second, we lack the credibility to try them ourselves. What if, even with a legitimate prosecution, they got off? (I know that Johnny Cochrane is dead, but there might be another lawyer who could pull an O.J. Simpson.) The rest of the world would, rightly or wrongly, reasonably assume that the verdict had been fixed.
 

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