November 9, 2005

The Agenda Gap is My Bitch

I think I might actually post this as a comment over on their page, too, just to show them how I'm the shit.

Now, this is sort of a problem, because Mike Herman used to go out with a friend of mine, and he's actually a pretty nice guy. So this all falls under the heading of "Mike, I like you, but." It's not like he's Glabe or somebody, where I feel completely comfortable throwing around words like "dogfucker."

That being said.

I'm not going to do that blog shit where you basically post a chatlog, cause I hate that, but there is some back-and-forth you should be aware of.

Anyway Seal gets on their page and is like "Yo d00d that guy was totally like giving an objective opinion and is right."

And Mike Herman goes No way bro like "to assert, without argument, that the Bush administration's actions were 'criminal' is clearly politicizing what was supposed to be a frank policy discussion on intelligence."

But before that he says "I am more than willing to agree with the statement that the Bush administration's statements in the run up to the invasion of Iraq were misleading, even false."

There's a law against that, homeskillet. US Code It says:

Section 371. Conspiracy to commit offense or to defraud United States

If two or more persons conspire either to commit any offense
against the United States, or to defraud the United States, or any
agency thereof in any manner or for any purpose, and one or more of
such persons do any act to effect the object of the conspiracy,
each shall be fined under this title or imprisoned not more than
five years, or both.
If, however, the offense, the commission of which is the object
of the conspiracy, is a misdemeanor only, the punishment for such
conspiracy shall not exceed the maximum punishment provided for
such misdemeanor.

Even if you don't treat the war deaths as a crime, they lied to appropriate US funds, and that shit can defitely be reasonably interpreted as criminal from an OBJECTIVE standpoint. Hence the discourse becomes a LEGAL discourse.

Let's say I rob a bank to get money for MoveOn or some shit. I did it for political ends, but if you are talking about whether I should go to jail or not, you're not talking about whether I was right to support MoveOn. You're talking about whether I could legally rob the bank. This is the legal discourse as opposed to the political.

Was Bush right in making war on Iraq? Some say yes, some say no- political. Did he break the law in doing it- legal.

Ergo, when homeboy said Bush was a criminal, he did that because he could back it up. Unlike some of us, Whatshisface is both educated and interested in the truth. Fuck it, I can say Truth.

As for Laurence Silberman, co-chairman of the Silberman-Robb Commission on the Intelligence Capabilities of the United States Regarding Weapons of Mass Destruction, "I can remember" a time when Laurence Silberman (co-chairman of the Silberman-Robb Commission on the Intelligence Capabilities of the United States Regarding Weapons of Mass Destruction) wasn't a sycophantic horsefucker who is unfit to breathe the same air as my perceptive ass. Wait, no I can't! Get the fuck out, Laurence Silberman!


  1. I like you too Connor, but you've confused my position. The Bush administration possibly manipulated intelligence so as to bolster their case for invading Iraq. Dispicable? Yes. Criminal? Probably not. Your bank robbery story is disanalogous as Congress appropriated the money, not the president. If presidents were to be guilty of criminal conspiracy everytime they do not tell the full truth to the public, almost every president would be in jail. Bill Clinton obviously lied to the public about the Lewinsky affair. Was that criminal? I don't believe so. Ronald Reagan lied and manipulated intelligence about Iran Contra. Should he have gone to jail?

    The point of my argument was to note that Professor Lebow used what was supposed to be a discussion on intelligence work into an opportunity to make an unnecessary political statement. To assert, without argument, that the Bush administration's actions were criminal is a political statement, not a legal supposition. You, on the other hand, have attempted to make a legal supposition, though as I've noted, you'll have to do a lot of legal wrangling to call what the administration did a criminal conspiracy.

  2. Bank robbery story's not disanalogous, as the President lied with intent to defraud. The intentionality is the bitch part to prove, which is why he's not in jail already. The fact that Congress appropriated the money doesn't really matter in this case.

    "If presidents were to be guilty of criminal conspiracy everytime they do not tell the full truth to the public, almost every president would be in jail.">> If a President lies with the intent to defraud the public, he should go to jail. Bill's lies were less about defrauding the public and more about getting his bitch wife off his back. From a legal standpoint, the public was not affected by Bill's action, whereas it was affected by George's.

  3. Michael, has it occurred to you that Bush may have violated international law in waging a war on false premises? That would, er... make him a criminal.

    I refuse to believe that something so vile as sending 2000+ young Americans to die under false pretenses broke no law in the world--that would be a depressing statement about the quality of justice, indeed.

  4. Andrew,

    Multiple presidents sent 58,226 Americans to their death under false pretences in the Vietnam war. By your logic we should have been calling for the indictments of Presidents Eisenhower, Kennedy, Johnson, and Nixon (well, maybe for him it would be ok). How about the dropping of the Atomic Bomb or the firebomings of Dresden and other places that killed thousands of civilians? International war crimes are tough because usually (actually exclusively) the party that prevailed in the war is saved from prosecution while the party that lost the war ends up being sent over to the international criminal tribunal.

    I couldn't agree with you more about the idiocy, incompetency, and hypocrisy of the Bush administration. I'm just not comfortable calling them criminals just yet (except maybe Lewis Libby).

  5. Michael,
    You're arguing against yourself here. You have basically surrendered the position that Lebow's statement was exclusively about politics and not about law. We're debating now whether Lebow was correct in his understanding of the legal accountability of the Bush administration, about the legal content of Lebow's statement. The debate about whether there was a legal content is now assumed.

    I am perfectly willing to allow that Bush will never get charged and therefore his criminality will never be confirmed or disconfirmed, but an expert can make a hypothetical judgment of a person's criminality without it being exclusively political, regardless of the real-world legal outcome. For example, Eugene Volokh can say that Kelo was wrongly decided without that being a political speech.

    In addition, bringing in Libby shows that there likely were criminal actions connected to the selling of the war--how much and how far is a matter of conjecture at this point, but those conjectures can be apolitical. I thought this was essentially the point of your blog.

    If all your point is is that Lebow should have given his grounds for calling the Bush administration criminals, I am willing to agree. But the fact that he didn't does not mean he was making an exclusively political proclamation.

  6. Yay! I heart Connor. Excellent post, good point.

  7. Connor and all,

    Without first addressing the question of crimes under international law, I should just say that your reliance on Section 371 ("Conspiracy to Commit Offense or to Defraud United States") is misplaced.

    In that statute, as in other sections of the United States Code, the term "United States" refers to the United States Government, not to some abstract concept of the "public."

    Thus in the section that you quote in your original post, the offense relates to conspiracy to defraud the United States "or any agency thereof"; that is, any agency of the United States Government.

    Under this definition, making false statements to the public is not a crime. If it were a crime, as Michael points out, it is probable that every president would be under indictment. Indeed, national security often requires the executive branch to mislead the public.

    Instead, most of those who argue that President Bush committed criminal acts by waging war against Iraq contend, as Andrew Seal does, that the President violated international law, not domestic law, perhaps by waging war without the consent of the U.N. Security Counsel, or by waging unprovoked aggressive war in violation of the Kelogg-Briand Pact of 1928 or some other treaty.

    I think that the argument that the President's (albeit foolish) acts were criminal under international law is a hard one to win, but I admit that I am not an expert in international law and base my opinion only on a general legal education. I doubt any of the others on this conversation are experts either, however, and an abstract sense that some acts are morally wrong does not, contrary to Andrew's wishes (or perhaps mine), make those acts illegal. We also have to deal with the issue of the competency of international courts to override the foreign policy interests of a sovereign nation, which is a complicated question.

    None of this, however, reflects or addresses the point of Michael's original post, which was that Professor Lebow undermined his credibility by calling the President's actions criminal in the context of a panel on U.S. Intelligence and National Security. In the context of a panel on those topics, not on war crimes or on the morality of the Iraq war, Lebow's statements were political in nature and unconnected to the topic he was asked to speak about.

    Opponents of the Iraq war (which I think includes everybody in this discussion) should be careful not to undermine the strength of their arguments by invoking the word "criminal," when they do not have any basis beyond their personal convictions for concluding that the war was, in fact, a criminal act. It is enough to say that the war was "foolish," "misguided," "poor foreign policy," "unjustified," or "based on false pretenses." These are statements that we can say with greater honesty and confidence, while leaving questions of what is criminal to those who know what they're talking about.

  8. David, perhaps it is best to go back to the article.
    "Lebow blamed the Bush administration for further politicizing the CIA and only being interested in intelligence supporting certain predetermined policy objectives.

    "What they have committed is not an intelligence failure but a fundamentally criminal act," Lebow said."

    Lebow's statement was directly tied to the future of intelligence--i.e. it was entirely germane to the stated topics of the discussion.

    In light of this, Lebow could have been calling Bush's coercion of intelligence agencies to provide specific results criminal. Admittedly, this would be impossible to prove, but that does not mean Lebow was simply throwing the term around as you suggest.

    That Lebow did not more fully state his reasons for using the term (as far as we know) is a problem, granted. But is this truly inappropriate for this kind of forum? Aren't panel discussions intended to lead to informed conjecture? If it truly is a discussion, the speakers should push each other a bit. It is not a series of recitations of carefully itemized facts supported by three pieces of independently confirmed evidence each. I don't know what kind of panel discussions you've been hanging out at, but it's not like a bunch of people getting up and reading mini-dissertations complete with footnotes and bibliography. I simply don't see any loss of credibility here. And as I pointed out, Lebow's statements were far more factually based than the scare tactics of that McLaughlin guy. Strangely enough, Michael didn't complain about him undermining his credibility.

  9. Andrew,

    I appreciate your thoughtful and intelligent response. I apologize for the long post, but I want to try to address all of your points.

    Just to get this point out of the way: I am not sure what you mean when you say that "Michael didn't complain about him undermining his credibility." I was referring to Michael's original post at The Agenda Gap (, which spurred the conversation that was later brought over to this blog.

    In that post, Michael wrote: "While it is certainly important to criticize the administration's colossal intelligence failures, calling them criminals only serves to remove all of Lebow's credibility."

    Do you actually disagree with that statement? I don't. I worked day and night trying to get Bush out of office, but when I hear someone call him a criminal my gut reaction is "oh no, another angry, bitter, liberal intellectual using his professorship to advance his own political agenda." Perhaps I should not feel that way, but I do. I can't help it. Others in the audience undoubtedly feel the same way.

    In that way, I do think that Lebow undermined his credibility by asserting the President's criminality, especially, as you point out, without providing serious evidence or argumentation to back up that claim. Again, what crime has the president committed? What section of the United States Code has he violated?

    You were right in your last post to point out that the most common argument for the President's criminality is that waging the war violated international law. Perhaps you could make a good faith argument that it is criminal to wage war without the approval of the U.N. Security Council.

    But that is not the argument that Lebow was making.

    There is no treaty or other provision of international law regulating how an executive of a sovereign government uses that government's own intelligence reports. If "coercion of intelligence agencies to provide specific results" is criminal, it must therefore be a violation of domestic, not international, law. But I can't for the life of me think of a law of this country that those acts violate. Certainly not Section 371 (cited above), which, as I mentioned in my last post, refers to conspiracies to defraud the United States Government. There is no generalized crime for misleading the public.

    As a technical matter, I am not sure that I disagree with you about the relevance of Lebow's "criminal" remark. When he calls the President's actions criminal he is surely referring to actions taken by the president that involve "U.S. Intelligence and National Security," the topic of the panel discussion. In that sense, the remarks were certainly appropriate for the discussion in the sense that they fall within the bounds of his academic freedom. But the inquiry as to whether the remarks were relevant to the topic of the panel does not end there.

    Take a look at the language that you quoted to me in your post:

    "Lebow blamed the Bush administration for further politicizing the CIA and only being interested in intelligence supporting certain predetermined policy objectives.

    'What they have committed is not an intelligence failure but a fundamentally criminal act,' Lebow said."

    The point that Lebow is trying to make (according to the article, at least) is that the Bush Administration made political (rather than strategic) use of intelligence, which had the effect of (1) misleading the public, and (2) by implication, leading the country to adopt or support an unwise policy decision.

    How does calling those actions "criminal" support that argument?

    I would argue that quite the opposite takes place. Rather than being more convinced by Lebow's point, the listener is turned off by Lebow's injection of what is obvoiusly his political bias into an otherwise policy-driven discussion. Argumentation is almost always stronger when the speaker adopts a more detatched style and refrains from injecting himself into the argument. As an illustration, ask yourself which of the following statements would have been stronger:

    (1) "What they have committed is not an intelligence failure but a fundamentally criminal act."

    (2) "What took place was not only an intelligence failure, but a deliberate attempt to mislead the public, which had the effect of leading the country into a protracted war that was both unjustified and unwise."

    In my opinion, the second statement is a stronger way to make the same point. The crux of Michael's original argument is exactly that: if Professor Lebow had left his political views (and his anger) at the door and focused on the argument to be made, he would have made it more strongly.

  10. I'll just reiterate what I actually said because I don't think you read it correctly.

    1) McLaughlin's remark was the one I said Michael failed to criticize. Not Lebow's. McLaughlin's remark was more egregiously political and opinionated.

    2) Lebow's remark may not have been optimal, but it was not inappropriate. These discussion things are not meant to be confined to extremely narrowly worded factual recitations. Lebow has a slim leg to stand on in calling Bush a criminal, I agree, but he was not doing so purely for rhetorical effect, I believe. I'm arguing about his intention and you're arguing about its effect. I have already conceded its effect was not optimal. I am arguing about his intention. His intention was not to make a radically unfounded and biased political statement, but one that he believes are true for substantial--and substantiated--reasons. It is a stretch, but it has actual legal content.

    I don't lose credibility in The Agenda Gap when I think a post is a little too nice about an issue I feel differently about; I don't see why Lebow lost credibility here.