Perhaps it is now possible to begin to see the light at the end of the tunnel. Maybe we will be out of Iraq in a year or two. (The usually gutless Congress has now begun to revolt, with a decorated combat veteran of two wars, John Murtha, leading the charge. He is, accordingly, taking guff from what might expansively, if loosely, be called the five deferment crowd – – the people who have never fought themselves, and have no kids doing the fighting, but who are willing to fight to the last Appalachian kid who signed up because he or she had no opportunities in life.)
As well as revolting on Iraq, the normally supine Congress is revolting on torture of prisoners of war, led here by a former long-time prisoner of war, John McCain. (He, accordingly, is opposed by the chief of the five deferment crowd, Vice President I-had-more-important-things-to-do-than-go-to-Vietnam Cheney, and the chief,s chief henchmen, such as David Addington. They oppose McCain though he has also favored the disastrous idea that we should put more troops in Iraq — and this guy thinks he is smart enough to be President? Does Charles Keating think so too?)
The country itself seems to finally be revolting in regard to Iraq, at least if you believe The Washington Post. Its inquiries in Ohio show this, although the Post says they also show, quite distressingly if true, that the public cares not a tinker,s damn about who goes on the Supreme Court or the lies of Lewis Libby, lies doubtlessly designed to save Cheney,s unintelligent, utterly worthless hide and, very likely, to save the 2004 election for Bush by successfully delaying some conceivable criminal prosecution whose fall-out would have included loss of the election.
(Speaking of Cheney not being very intelligent — something that has long been said here about Bush but only recently is coming to be publicly accepted — puts me in mind of something that this writer has been wondering about for awhile now. Although one has not thought that academic performance is necessarily a measure of mental ability or quality, and one has recognized — indeed proclaimed — that many people who do poorly in school are very bright and do very well in later life, is it possible that these ideas are at least to some extent wrong? Is it possible that too many of our leaders in all walks of life, including politics, are in fact dummies or semi dummies whose deficient acumen was shown by mostly poor, or at best mediocre, academic performance in college or graduate school? In his recent, nearly 700 page book on the admissions process at Harvard, Yale and Princeton from 1900 to 2005, Jerome Karabel points out that George W. Bush, that scion of privilege, got into Yale because of his family even though (after an Andover education, no less) he was only in the bottom ten percent of Yale students verbally on the SATs and only in the 20th percentile (from the bottom) in math. And George Bush plainly is a simpleminded dummy (and not surprisingly, therefore, a serial failure in business), whose distaste for reading, moreover, has contributed to the Iraq disaster because he himself acted so ignorantly. As for Cheney, Karabel points out that he got admitted to Yale “with a rare full scholarship”as part of the so-called “diversifying” system that Yale engaged in so that it would not have to take intellectually minded Jews. (Cheney was a western, Protestant, high school football player, and flunked out when that fate befell less than two percent of the Yale class. So maybe Cheney,s not so smart either (which is what this blogger has long thought). Even Bill Clinton, who is assumed by all on the left to be a genius, didn,t set the world on fire at the Yale Law School as far as I know, and one is tempted to ask, “If he is so smart, how come he effed up so much as president? It wouldn,t have taken much intelligence to avoid some of the contretemps he got involved in. Maybe he,s not, in fact, all that smart. Maybe he,s just a big mouthed lawyer — big mouthed lawyers often pull the wool over people,s eyes with regard to competence or lack thereof. Anyway, all of this has unhappily crowded in on the long-held view that poor academic performance is not a measure of brains: is it possible that poor academic performance is an apt measure of mental ability, at least in the case of people who wish to be national leaders? Previously, one would not seriously have thunk it.)
And not only are the Congress and the people finally revolting about Iraq, but even our putative friends there are revolting. Remember when the five deferment crowd claimed we would be greeted in the streets of Iraq with roses? Well, now even our supposed friends there are calling for a timetable for us to leave their country.
* * * * *
By delaying a potential case that would have given the election to the Democrats by further exposing administration lies and ineptitude, Lew Libby,s lies about the Plame affair protected and covered up the administration,s lies and ineptitude about Iraq. This fact pours fuel on the fire which has long burned on this blog, the fire which proclaims that dishonesty is the single most serious problem of America. For dishonesty leads to incompetent decisions – – people who are fooled about what the truth is usually make bad decisions. (Which is the reason one tries to conceal the truth from, tries to fool, one,s enemy about the truth in war, as when we fooled the Germans into believing Patton commanded a large but in reality nonexistent army that was going to invade Calais, and thereby fooled them into making serious mistakes in the disposition of their panzers. Moreover, secrecy fuels dishonesty; secrecy makes dishonesty possible — is sometimes even a sine qua non for dishonesty — because secrecy prevents one from learning the truth (as secrecy prevented the Germans from learning the truth about Patton,s nonexistent army).
These ideas are of immediate pertinence to two matters. One is that the CIA has asked the Department of Justice to investigate, and consider bringing criminal charges because of, the fact that somebody spilled the beans to a reporter about the CIA,s secret prisons in eastern Europe and elsewhere (prisons so secret that George Bush said early on that he didn,t want to know where they were). These prisons, apparently, sometimes violate the laws of the very countries in which they are located, but have been set up with the connivance of at least some governmental elements in those countries. Now some of those nations are making unhappy noises, and even threatening legal actions. All of this is giving the CIA heartburn, and it apparently wants to throw the book at whomever spilled the beans to one or more reporters.
No doubt the government,s position will be that any reporters whom it wants to question before a grand jury will have to testify there because there is no reporter,s privilege to refuse to disclose the names of and what was said by confidential informants, as Judith Miller found out in the Plame/Libby matter. But there is a major difference between the Plame/Libby matter and the secret prison matter, as only Joan Venocchi of The Boston Globe seems to have realized among all the writers this blogger has read. The secret prison business seems a rather typical whistleblower kind of case of the kind that often occurs with respect to governmental or corporate misconduct. That is, it is a situation in which, apparently, someone in government is trying to blow the whistle on, is trying to reveal through the press, something very bad and in various respects deeply illegal that the government has done. This is the common whistleblower type situation. The Plame/Wilson matter is a very different animal. Here the government was trying to use the press to hide the truth about bad things the government has done — to hide the truth here by discrediting the individual (Joe Wilson) who spoke the truth. Given the purposes of the first amendment — a main one being that a free press should exist for the precise purpose of disclosing bad governmental conduct — it seems to me completely logical that there could (and should) be a reporter,s privilege of confidentiality when a confidential source is trying to bring government (or corporate) misconduct to light by revealing secret information to the press, but not when government (or a corporation) is trying to use the press to hide misconduct or error, as Libby was doing here.
No doubt there can be cases — as lawyers are always quick to point out in order to argue against a salutary idea in which it is not easy to know on which side of the fence a situation falls. But here the situation falls pretty clearly on one side rather than the other, if you ask me. Libby pretty clearly was using the press to try to discredit the claims made by Joe Wilson, because Wilson had learned and revealed the truth about Bush/Cheney lies — or, to be more tactful, serious Bush/Cheney mistakes — about why we should fight a war. Libby was trying, that is, to discredit true revelations of serious government error. So here there should not be a reporter,s privilege, or else we will encourage lies and deceptions and discourage revelations of truth. In the secret prison case there should be a reporter,s privilege because someone was trying to reveal serious government misconduct, and we do not want to do anything that could discourage that lest we thereby encourage government to undertake and continue bad conduct in the knowledge that anyone who reveals its misconduct is subject to outing and jail.
In both cases, it is clear, the same underlying value is involved: the very important value of using the first amendment to discourage governmental misconduct and lying. In the one case — the Plame/Libby matter — a grant of reporter,s privilege thwarts this crucial first amendment value. In the other case — the secret prison one — the grant of a reporter,s privilege protects it.
To me it seems only common sense to treat each of the two situations in accordance with first amendment values. Many, perhaps most, lawyers deny this, however, and instead say that, to treat people equally, there must be a reporter,s privilege either in both cases or in neither. I don,t see it that way. I haven,t agreed with that kind of logic since I first wrote about it in 1965. For it ignores the fact that blindly treating the two situations the same way thwarts a fundamental value — indeed a fundamental necessity — of our system, the need to encourage uncovering of governmental misconduct and dishonesty, and to discourage the hiding of it.
* * * * *
The other matter as to which at least dishonesty is relevant is the nomination of Sam Alito. Here is why.
When nominated to the bench in 1990, Alito was asked in a questionnaire to “Identify the . . . financial arrangements that are likely to present potential conflicts-of-interest during your initial service in the position . . . .” Alito replied that “I do not believe that conflicts of interest relating to my financial interests are likely to arise. I would, however, disqualify myself from any cases involving the Vanguard companies . . . .”
Long afterwards, in 2002, Alito sat on cases involving Vanguard. Democrat Senators have asked him about this, and he responded by saying that the questionnaire asked him what he would do during his “initial service.,” He later realized, he said, that he had been “unduly restrictive” because there was no legal or ethical obligation to disqualify himself under the applicable rules. He also made some other points to show he acted properly, including that, after the loser complained about his participation, he requested that a new group of judges rehear the case, as then occurred.
It is likely that Alito,s sitting on the Vanguard case was not a violation of ethics. Yet, even though he said in 1990 that he had no conflicting financial interests, which also was probably correct, he did say he would not sit on a case involving Vanguard, presumably because he thought this the undeniably ethical, safest course. And since nothing is publicly known to have changed in his relevant financial situation, it is really not meet for him to have said in 2002 that his 1990 pledge was inoperative because it was for his “initial service” only. Ethics are ethics; they do not change because your service is initial or subsequent. For him to have simply gone ahead and violated his 1990 pledge without telling anyone that he was doing this strikes me as sort of dishonest regardless of whether he did in fact later come to the conclusion that his view had been too stringent in 1990. Too stringent or not, the point is that he made a pledge and then went back on it — later claiming it was for initial service only — even though the reasons for the pledge seem not to have changed.
There is another point about his honesty (or, God forbid, lack of it) that bothers me, a point true with regard to John Roberts too. Alito says that his statements about going into law because of disagreement with liberal Warren court rulings, and about being especially proud of his contribution to briefs that took positions that were highly conservative or reactionary, were only made for advancement in a conservative political administration. Roberts similarly claimed his right wing memos were attributable merely to the fact of who his bosses were. Neither of these guys is believable on this matter. Both had histories of believing ardently in the things they were saying and doing, and it is plain that now they used these dishonest dodges to try to escape the things they themselves said — and believed, and perhaps, maybe even probably, still believe but knew they dare not say if they were to be confirmed.
Beyond this, if Alito were now telling the truth, it would mean that he was not telling the truth when he said what he said in 1985 in order to gain advancement.
You know, there are some people, though maybe not many anymore, who think that it is not right to lie in order to gain advancement. Sure, this philosophy is old fashioned, and lots of people think it out of date in an America where prevarication and falsehood have become de rigeur. But it is a philosophy to which a few of us social dinosaurs still cling, and it is really dismaying to see it cast aside by people who later are nominated to the Supreme Court. Of course, I imagine that people who do not cast aside the need for honesty do not get nominated to the Supreme Court these days. Lying is just part of the game everywhere these days, isn,t it?
Call me a prisoner of the past, but I have been on the receiving end of various forms of judicial dishonesty in the federal courts, and have learned to loathe it. In my younger days, I brought many cases challenging the constitutionality of the presidential war in Viet Nam, the war that cemented the Cold War-Korean War increase in executive power, to the detriment of Congressional power. That increase in executive power is with us still, is an objective of the Bush administration, which wants to increase it still more, is contrary to the founders, George III-inspired desire for a legislative government, not an Executive one, lest there be tyranny, and is a matter that will, in the next ten years, be before the Supreme Court, to which Alito seeks confirmation. The effort of myself and others to have the Viet Nam War rightly declared by federal courts to be a violation of the declaration of war clause — in cases brought by citizens, congressmen and congresswomen, or soldiers — was doomed from the beginning, it ultimately turned out. For the fix was in, sometimes intellectually and sometimes beyond “merely” intellectually, as I,ve written about at length in Misfits In America (the first volume of the quartet entitled Thine Alabaster Cities Gleam). For instance, one early case I brought was dismissed without our ever having a chance to argue, when the U.S. Attorney for Washington, D.C., a fellow who later was an (unsuccessful) Watergate prosecutor, simply took a notice of dismissal to the judge without telling us or giving us a chance to reply — a plain and morally dishonest violation of rules — and the judge, equally morally dishonest, signed it on the spot. Then there was the case in which another judge, who was on Nixon,s short list for the Supreme Court (which I did not know at the time), wrote a lengthy, in-major-part irrelevant opinion against us that was designed to gain him the nomination to the Court (but didn,t gain this for him). Then there were Justices of the Supreme Court who for morally dishonest reasons or worse refused to hear cases on the legality of the war, e.g., Hugo Black, because he did not want to jeopardize his long personal friendship with Lyndon Johnson, and Abe Fortas, who corruptly acted as one of Johnson,s leading hawk advisors on the war — some think as the leading Johnson advisor on the war — while voting not to hear cases challenging it.
To my amazement, in his recent memoir entitled Inside, Joe Califano, long a leading presidential advisor and Democratic politician in Washington, disclosed other cases in which the fix was in. In a case brought by the Democrats over the Watergate break in, the judge, a morally corrupt, morally dishonest Nixon appointee named Charles Richey, got in touch with the White House to ask them what to do and to keep them apprised of what he intended to do, sealed depositions, apparently doing so lest they harm Nixon,s reelection campaign, suspended all proceedings for a considerable period for the same apparent purpose of not jeopardizing Nixon,s reelection, and (of course secretly) called Carl Bernstein to try to justify his sealing of depositions. Califano also tells how Judge David Bazelon, then Chief Judge of the U.S. Court of Appeals for the District of Columbia and long a liberal icon, secretly attempted in a private meeting to bring an end to credentials battles among delegates to the 1972 Democratic Convention in order to help McGovern win the nomination. This was bad enough. But then, making the situation even more dishonestly corrupt and unethical, Bazelon sat on an emergency appeal in which, by 2 to 1, the appellate court ruled in a way that gave all of California,s delegates to McGovern. (That decision was “stayed” by the Supreme Court.)
Years after Viet Nam, Watergate and the 1972 election, I had another searing experience with federal judicial dishonesty and moral corruption, in the 1990s. In order to carry out our school,s goal of providing rigorous but affordable legal education to people from the working class, our law school uses educational techniques that depart from the enormously expensive — and pedagogically unsound or irrelevant — techniques selfishly insisted on for their own personal benefit and their own professional self aggrandizement by the legal academics who control the accreditation arm of the American Bar Association. The ABA accreditors were (and are) violating the antitrust laws, and the Department of Justice brought an antitrust suit (based on the same theories we were using) which the parent ABA promptly insisted on settling rather than face trial. But our law school,s private suit was thwarted by repeated moral crookedness and dishonesty in the federal judiciary, with which the ABA maintains very close relations and which is unalterably biased in the ABA,s favor. The moral crookedness and dishonesty ranged from refusing to grant us the same, case-making discovery that was obtained by the Department of Justice, to secret proceedings, with only the ABA present, that we were not told about and only later discovered fortuitously, to refusing to credit anything we said and all the proof we presented while crediting everything the ABA said and presented, to viciously attacking our lawyers, one of whom was a former U.S. Attorney in Philadelphia where the suit was heard and now is a federal judge there and another of whom was a leading antitrust lawyer in a major Wall Street firm, to ignoring and glossing over, both in the trial court itself and in the Third Circuit Court of Appeals, a grossly dishonest conflict on the part of the trial judge (Alito comes from and at the time already was a judge of the Third Circuit, but he was not involved), and much, much more. I,ve written of this in a lengthy article, in the Summer 1997 issue of our school,s intellectual (generally non-legal) journal, called The Long Term View; it is also written about very extensively in the not-yet-published fourth volume of Thine Alabaster Cities Gleam; and it has been detailed in a book about our school by a Boston area journalist named Debbie Hagan. (The book is called Against The Tide.)
Thus, suffice to add here only one point. After the deeply souring combination of my own experiences with morally crooked, ethically dishonest federal judges in cases involving the constitutionality of the Viet Nam War and then in matters involving ABA accreditation, I have never wanted to appear in federal courts again, never have done so (except for amicus briefs in the University of Michigan affirmative action litigation), and doubtlessly never shall. Thurman Arnold, the great lawyer of New Deal days, who is the Arnold of the famous Washington, D.C. firm of Arnold & Porter (which was originally Arnold, Fortas and Porter until Fortas joined the Supreme Court), was once asked why he left a judgeship on the U.S. Court of Appeals for the District of Columbia in order to go back into private practice and start the firm of Arnold, Fortas and Porter. His reply as to why he preferred being a lawyer to being a judge was that he would rather talk to a bunch of damn fools than be talked at by a bunch of damn fools. Well, I don,t wish to do either, and still less do I wish in my mid 60s to be in the position of trying fruitlessly to persuade morally and ethically corrupt and dishonest people whose minds are closed to decent positions and whose style is to browbeat those who appear before them.
So, to me, the nomination of Alito implicates the question of honesty, given what he has said with regard to the Vanguard matter and with regard to his 1985 statements seeking advancement in the Department of Justice, statements it is simply impossible to believe. That questions of honesty are involved surely does not make it less important, but only more important, that the Senate Judiciary Committee closely and specifically question Alito on a host of topics — including the growth in executive power which threatens the country — in ways suggested here in a posting of November 4th and in ways illustrated by the letter from Senator Specter to Alito,s predecessor nominee, Harriett Miers, that was appended to the November 4th posting.
This posting represents the personal views of LAWRENCE R. VELVEL.
LAWRENCE R. VELVEL is the Dean of Massachusetts School of Law. He can be reached at firstname.lastname@example.org.