Revenge? What About Justice?

Alan M. Dershowitz has written Indictments Are Not The Best Revenge. It appears in the Wall Street Journal. Reading it most definitely caused my blood pressure to rise considerably.

Let’s start with the title Dershowitz chose. Right away he exhibits his bias. Right away he begins to misrepresent reality. Many people want investigations and many people want impeachment (a form of investigation). And yes, some want indictments. This is called justice. You would think that Mr. Dershowitz, a lawyer and a professor of law at Harvard, would know these things. His title implies that indictments are a bad thing, and by inference that justice is a bad thing. Indictments are simply a part of the judicial process. They help us find out if a person committed a crime. A lawyer such as Mr. Dershowitz should know that they have nothing to do with revenge. At least not in the way that they are supposed to be used. Do you use indictments for revenge, Mr. Dershowitz? Is that why you think of them in that way? Indictments Are Not The Best Revenge. This implies that revenge has some sort of way of being classified on a scale from bad to good. Revenge is always bad. It is never good. It is never best.

Shall I move beyond the title to what he actually wrote?

But during a recent campaign rally Mr. Biden gave a wrong-headed, if well-intentioned, answer when asked whether he would "pursue the violations that have been made against our Constitution by the present administration?" This is how he responded: "We will not be stopped from pursuing any criminal offense that's occurred."

After praising Democratically controlled congressional committees for investigating these matters -- "collecting data, subpoenaing records . . . building a file" -- Mr. Biden continued: "If there has been a basis upon which you can pursue someone for a criminal violation, they will be pursued -- not out of vengeance, not out of retribution, [but] out of the need to preserve the notion that no one, no attorney general, no president -- no one is above the law."

Dershowitz calls Biden’s answer “wrong-headed.” How can Biden’s answer possibly be called wrong-headed? It sounds perfectly right-headed to me. As in, this is the right thing to be doing. Not to Mr. Dershowitz, however. If you can believe it, here is the Dershowitz reason for why we should not pursue justice:

But there is a countervailing principle at play here that is equally important -- namely that the results of an election should not determine who is to be prosecuted. These principles inevitably clash when the winners of a presidential election investigate and prosecute the losers, even if the winners honestly believe that the losers committed "genuine crimes" rather than having pursued merely "bad policies."

Does that sound totally idiotic to you? It does to me. He says that elections “should not determine who is to be prosecuted.” Yes, that’s true, and it is something that I agree with. That’s the job of the judicial system. Dershowitz then makes a strange jump in logic that makes my head spin. Because an election should not determine who is to be prosecuted, no one should determine who is to be prosecuted. The reason Dershowitz gives for this is basically that it makes Obama and the Democrats look bad. It appears to be “bad form” (as the British would say) or something.

It is hard to tell from what he writes, but it seems to me that Dershowitz is implying that Obama is going to win, or that if McCain should win, that a McCain administration would not pursue any prosecutions. This doesn’t seem like logical thinking by Dershowitz to me. He seems to be making some strange assumptions. If Obama wins, it’s wrong to prosecute. If McCain wins, no one will prosecute. My conclusion from all of this: Bush wins, yet again, and the American people lose, yet again.

So, in spite of Dershowitz saying that elections should not determine who is to be prosecuted, he actually seems to be saying that elections should determine who is to be prosecuted. And who is to be prosecuted according to Dershowitz? No one. Like I said, he makes my head spin. How can I possibly conclude that Dershowitz means the opposite of what he says? Because Dershowitz is basically lying. What he really means is that elections should determine that no one is ever prosecuted.

Let’s make our government smaller. Let’s throw out the Attorney General, let’s throw out the Department of Justice and the Supreme Court. Like Shakespeare said: “Kill all the lawyers.” We don’t need any of it. Elections determine justice! How wrong we have been all these years.

He then goes on and babbles about the function of the attorney general, and what he says seems totally wrong to me. He writes about a conflict of interest because the attorney general “plays two roles simultaneously -- that of political adviser to the president, and that of chief law enforcement officer of the United States.” Maybe bad lawyers like Dershowitz and Alberto Gonzales see it this way. Others think that the attorney general should be above partisanship and place his law enforcement duties above all else. Is Dershowitz even aware of the reason why Gonzales is no longer attorney general? I shudder to think what Dershowitz is teaching his students at Harvard!

Even if Dershowitz is right about the attorney general, it is a separate problem. One that, if Dershowitz is right, should be corrected. However, once again, I believe that Dershowitz is wrong. I don’t think that the attorney general functions as a political adviser to the president, but as an advisor in things pertaining to the law. At least, that’s the way it should be, by definition. In practice, we sometimes get an Alberto Gonzales coupled with an immoral president, and all hell breaks loose. However, none of this has anything to do with the argument that Dershowitz is making. Look at it this way. According to Dershowitz whatever the attorney general does or says doesn’t matter to the argument that Dershowitz is trying to make. The attorney general doesn’t matter, only the election does. In other words, Dershowitz is just blowing smoke.

The real question is whether investigating one's political opponents poses too great a risk of criminalizing policy differences -- especially when these differences are highly emotional and contentious, as they are with regard to Iraq, terrorism and the like. The fear of being criminally prosecuted by one's political adversaries has a chilling effect on creative policy making and implementation.

Bush knows this, Bush did this, and it is one reason that Bush should be prosecuted. Bush and Cheney function by intimidation. I’d welcome some of that “chilling effect.” Directed at Bush and Cheney for once, and not toward the Democrats as Alberto Gonzales so frequently did. If Bush and Cheney feared being criminally prosecuted by their political adversaries we would not be in Iraq right now.

For some reason Dershowitz sees fit to drag Noam Chomsky into all of this. Probably just so he can call him a name. As in “You lefty commie nogoodnik.” Actually, Dershowitz calls him “a sort of guru to hard-left America bashers.” Right. That tired old saw again. If you criticize a right-wing or conservative politician, or policy, you hate America. Give me a break. By this logic Dershowitz is a sort of guru to hard-right America bashers. What does it say psychologically about Dershowitz as a man that he feels he must resort to name calling? He then gives a rather long list of American interventions in other countries that many consider to be criminal. Contrary to what Bush and the right-wing say, this is the reason why “they” hate us. I suppose that, because Dershowitz seems to consider Chomsky to be some kind of lunatic, we can just dismiss all of the legal and moral concerns that many have about everything Dershowitz lists. This is the best that Dershowitz can come up with? An illogical appeal to the right-wing as an argument? I thought that lawyers dealt with facts. More of Dershowitz just blowing smoke. Is this how he won cases when he practiced/practices law?

Then Dershowitz says:

A politically appointed prosecutor, imbued with partisan zeal, could find technical violations of the criminal law in some of the envelope-pushing policies of virtually every administration.

Exactly right! Go for it! Perhaps there is hope for Dershowitz yet. (“Violations of the criminal law” are still violations whether they are found with partisan zeal or not. Are they not?) But, sadly no.

Prosecution should be reserved for the extremely rare situation where the criminal act and mens rea are so apparent to everyone that no reasonable person would suspect partisanship. The best remedy in other cases is to campaign against and defeat those who supported the bad policies.

Well of course! Why didn’t I see it before. Dershowitz is saying that justice for a politician should be the same as it is for the black man in the Baltimore projects. Isn’t that what he is saying? Don’t prosecute that black man for dealing drugs, campaign against him, and vote for the other guy. Problem solved. What’s that you say? Doesn’t that mean that a guilty man goes free? Why, yes. But apparently this is no concern for Dershowitz. (Why the hell is he at Harvard?)

(A disclaimer here: I do not mean to sound racist here. Quite the opposite, in fact. I do not mean to imply that all black men are drug dealers. I do mean to say that our justice system is full of bias. White presidents get pardoned, black men get put into prison.)

If the Bush Administration has not given Dershowitz evidence of the criminal act and mens rea being “so apparent to everyone that no reasonable person would suspect partisanship” then nothing ever will. Justice may be blind, but Dershowitz is deaf, dumb, blind, and brain dead.

That is among the important reasons why I will vote for the Obama-Biden ticket, and that is also why I will try to persuade them, if they win, not to conduct criminal investigations of their defeated opponents.

Meanwhile, for what it’s worth, I’ll be persuading them to do the exact opposite. Dershowitz is so very wrong about all of this. It is not about partisanship, it is about justice and the survival of the United States as a democracy.

What Dershowitz has written reminds me of the pardon of Richard Nixon by Gerald Ford. The pardon of Nixon and the above mentioned list of American interventions in other countries helped set the stage for the invasion of Iraq and the lack of impeachment of Bush and Cheney. This is not a good place to be, yet Dershowitz just wants more of the same. If we do what Dershowitz suggests, things will only get worse. Imagine that. Worse than the Bush years. What will the death count be for the next illegal war? Makes me shudder in fear.

Allan Dershowitz is one of a dwindling number of Bush apologists. Once there were many. Apologists for Bush got him elected. Apologists for Bush have kept him in power (Yes, I mean you, Nancy Pelosi). Apologists for Bush want to keep him from ever having to face justice.

Biden is right, Dershowitz is wrong. A lawyer should know better. This is not something for one man (Dershowitz) to decide. It is something for our judicial system to decide.

Why, in Allan Dershowitz’s world, does revenge trump justice?

People like Dershowitz make me physically ill.

Update:
At one time Mr. Dershowitz was not brain dead.