Meet the real victims of Bush-era lawlessness: his lawyers.

Meet the real victims of Bush-era lawlessness: his lawyers.

Meet the real victims of Bush-era lawlessness: his lawyers.

The law, lawyers, and the court.
July 28 2010 6:18 PM

More Nuttism From Alberto Gonzales

The former attorney general misinterprets a handslap as exoneration.

Alberto Gonzales. Click image to expand.
Former Attorney General Alberto Gonzales 

I can't say I was surprised to hear Alberto Gonzales telling CNN's John King last week that he and his family are the victims of a smear campaign. When the Justice Department finally issued the results of a two-year probe into the U.S. attorney firing scandal last week, finding there was no basis from which to bring criminal charges, the Wall Street Journal editorial page declared moral victory: "After their dismissal in 2006, Democrats pounced on the Bush administration for politicizing justice, and Mr. Gonzales became their favorite pinata. Democrats alleged that Karl Rove, then the deputy White House chief of staff, meddled in those decisions. He was also exonerated this week." His supporters now contend that Gonzales did nothing wrong and deserves an apology. Gonzales' lawyer agrees. And as Gonzales put it to John King last Friday, "I feel angry that I had to go through this, that my family had to suffer through this. And what for? It was for nothing."

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate and hosts the podcast Amicus.

As Judge H. Lee Sarokin notes, and John King attempted to point out, the report, which confined itself solely to the firing of one U.S. attorney, David Iglesias, hardly "exonerated" Gonzales. A Justice Department's inspector general and Office of Professional Responsibility report filed in September 2008 determined that at least three of the nine U.S. attorney firings had been politically motivated. While special prosecutor Nora Dannehy determined last week that the firing of Iglesias violated Justice Department principles, she concluded that it was not a crime. But she found that the process for removing nine U.S. attorneys for political reasons was "fundamentally flawed," "unsystematic and arbitrary," and statements made to Congress were "inconsistent, misleading and inaccurate in many respects." Moreover, notes Judge Sarokin, the investigation itself was badly hampered by the refusal of virtually every key player to cooperate, from Karl Rove to Harriet Miers to Monica Goodling. It's difficult to amass any evidence of wrongdoing when you've been stonewalled at every turn.

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Still, Gonzales and the Wall Street Journal objected to the portion of Dannehy's report that found the firings to be "inappropriately political." Accepting as true the parts of the report that "vindicate" him, Gonzales repudiated Dannehy's "judgment as to the political correctness of a decision by the attorney general" as "quite frankly … inappropriate and unwarranted in this particular case." Claims that Gonzales had improperly and politicized the Justice Department by firing any U.S. attorneys who failed to use their position to advance partisan political ends were dismissed as merely "political." And the legal charges against him were evidently political as well.

If Gonzales' claim that he and his family have been victims of an ideological witch-hunt sounds familiar, it's because our ears are still echoing with the same complaint offered up a few weeks ago by Judge Jay Bybee. As my colleague Andrew Cohen noted, the most stunning aspect of now-Judge Bybee's recently disclosed testimony to the House Judiciary Committee regarding the Bush-era torture policies that were developed under his name, was self-pity. The man whose name appeared on the memo that authorized the most egregious prisoner abuses after 9/11 stood by the contents of the memos, while telling the committee last May that his only regret in connection with his conduct is "because of the notoriety that this has brought me. It has imposed enormous pressures on me professionally and personally. It has had an impact on my family. And I regret that, as a result of my government service, that that kind of attention has been visited on me and on my family."

In other words, Bybee's only regret is the same as Gonzales'—that he and his family were victims. Glenn Greenwald quite rightly characterized this as "sociopathic self-absorption" when held up against the real victimization of the "countless detainees  … subjected to systematized, medieval torture techniques designed to permanently break their mind and spirit." If Bybee is a victim, what was Maher Arar—who had no choice about the brutal and pointless abuse to which he was subjected? If Alberto Gonzales was a victim, what was David Iglesias—who had no choice when he was unceremoniously dumped from his position as U.S. attorney because he declined to bring unfounded political prosecutions? If Gonzales and Bybee and John Yoo and Dick Cheney are the real victims of Bush-era policies after 9/11, who, precisely, were their victimizers? The Americans horrified at the secret policies they adopted? The Americans who believed that accountability mattered? Or the innocent people who were actually victimized by their policies?

Those who distorted and upended the legal rules during the Bush era have hermetically sealed themselves inside a legal tautology that provides that lawyers cannot be held accountable for merely offering legal advice, and nonlawyers cannot be held accountable because they believed that what they did was legal. But now we are poised to drown in an even more dangerous tautology—first offered up by former Attorney General Michael Mukasey—which holds that the Bush administration lawyers made mistakes because they were the victims of the "difficulty and novelty" of the legal questions before them, and then victimized again by "relentless," "hostile," and "unforgiving" critics who would hold them responsible for their decisions. Under this view there can be no legitimate criticism of the Bush lawyers—no matter how well-intentioned or how well-reasoned, such criticism is partisan and political and vengeful. There is no law. There is only your team versus mine.

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I am always reluctant to invoke Nazis unless speaking of Nazis, but perhaps it's not unfair to cite Hannah Arendt quoting Himmler, who understood that casting oneself as the victim of one's own misconduct is the best way to deflect moral responsibility. It's worth remembering that this particular tactic is hardly an invention of our current era, either. According to Arendt:

The problem was how to overcome not so much their conscience as the animal pity to which all normal men are affected in the presence of physical suffering. The trick used by Himmler … consisted in turning these instincts around, as it were, in directing them toward the self. So that instead of saying: 'What horrible things I did to people!,' the murderers would be able to say: What horrible things I had to watch in the pursuance of my duties, how heavily the task weighed upon my shoulders!'

It doesn't take a moral philosopher to understand that we slipped yet another rung down the ethical ladder the day we went from whitewashing Bush-era misconduct to allowing the perpetrators to paint themselves as beleaguered innocents. If we are willing to take the position that Gonzales, Bybee, Yoo, and Bush were the real and lasting victims of Bush's legal policies, American narcissism is truly bottomless. And the Obama administration, with its infinite willingness to elide and sidestep these questions of legal responsibility, has now done more than just enable torture and lawlessness: Each time it excuses or downplays Bush wrongdoing, it turns the bullies into victims and the rest of us into bullies. It creates a topsy-turvy ethical world in which the people who always had moral and legal choices have no moral or legal responsibility, while the people who never had any choices at all are to blame.

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