THE NEW NUREMBURG DEFENSE

Posted in Rants on January 20th, 2009 by Ed

Sometimes having a sibling does not work out well for people in the public eye. Jimmy Carter had Billy. Bill Clinton, Roger. Jessica Simpson, Ashlee. Jose Canseco, Ozzie. Alec Baldwin, Daniel (and Stephen). And pill-popping pundit extraordinare Rush Limbaugh has David. As the "talented" member of the Limbaugh family is intolerable under the best of circumstances it will horrify you to learn that Rush is a modern day Daniel Webster compared to his kid brother. David is the author of instant remainder pile books like Bankrupt: The Intellectual and Moral Bankruptcy of Today's Democratic Party and Persecution: How Liberals Are Waging War Against Christianity. But he is best known on his own as a columnist for, who else, the Washington Times, i.e. the last rung on the conservative pundit ladder, just ahead of Little Green Footballs, the John Birch Society newsletter, and Swank magazine.

While Rush's afterbirth is too unoriginal and repetitive to make a full-scale FJMing tolerable or fun, his latest Times missive ("Bloodlust of the Avenging Left") is an example of right-wing logic not to be missed. To wit (emphasis mine):

This returns us to the Ackerman op-ed urging impeachment of (Jay) Bybee for "his legal distortions" concerning those "torture memos." In the liberal spirit of declaring their opinions the only reasonable opinions — as with global warming — Ackerman apparently believes that any lawyer who opines that tough interrogation techniques, such as waterboarding, do not constitute torture is guilty of legal distortion and is "a systematic enabler of the war crimes that have disgraced America." Ackerman allows that Bybee "may have acted in good faith," but his opinion "fails minimum tests of legal competence." There you have it. If you disagree with this liberal professor about an issue on which reasonable people clearly disagree, you are incompetent, and unless you can demonstrate your good faith, you should be punished.

There are two major flaws with this "logic." First, this mischaracterizes the question as some sort of innocuous difference of opinion, as if Jay Bybee opposes tax cuts and his political opponents support them. Perhaps the author should familiarize himself with the Nuremburg Judges' Trial, after which a lot of people ended up on the gallows for concocting sham legal rationalizations for committing crimes against humanity. Is authorizing torture the same thing as the Holocaust? Of course not. But the fact remains that torture is indeed a war crime and ludicrous, selective, and deterministic interpretations of the law to excuse it carry the burden of culpability.

Second, the circular nature of Limbaugh's false dichotomy is obvious. Neocon extremists argue that torture is OK (or that what they do isn't torture) therefore they have committed no crime because this is an issue about which people disagree – for instance, neocon extremists argue that torture is OK. The existence of conflicting opinion does not make an issue contentious. As usual, right-wingers live in a fantasy world in which every opinion has validity, and as long as someone holds said opinion then it is an equal partner in public discourse. Reasonable people (like John Yoo and Doug Feith!) say that torture is permissible. Reasonable people (like, we asked EVERYONE in Cheney's office!) believed the pre-Iraq War intelligence. Reasonable people (like David Irving!) argue that the Holocaust never happened. See? This is the goal – establish a discourse in which facts are irrelevant and all that matters is saying what you think loudly enough.

Perhaps the most disturbing aspect of the outgoing administration's behavior and the fact that Obama is clearly a gigantic pussy who isn't going to authorize his DoJ to investigate war crimes is this new iteration of the Nuremburg Defense. Instead of "I was just following orders" we now have "(I/he/etc) acted in good faith." What the fuck does that even mean? It's not just a poor justification; it's no justification at all. It's an empty platitude which vaguely suggests that the people who approved, ordered, and executed torture didn't really think it was torture so therefore they committed no crime. To suggest that acting in good faith is any sort of legal defense negates the entire purpose of a criminal justice system. Obama's statements send a clear message: pervert the law however you want. There are no consequences.

Combining two different opinions does not automatically create debate. Some people argue (in good faith, no doubt) that the world is 6,000 years old. Choosing to believe something idiotic and only defensible outside of the rules of logic doesn't oblige the rest of us to take your opinion seriously. Everyone's entitled to his or her opinion, a maxim that in no way implies that said opinions are presumed valid simply by virtue of being uttered.