Andrew Sullivan has the best argument I have read for why people might be plausibly angry about the Louis Libby commutation.
Bush's Record on Mercy
"There is none. Part of what makes the commutation of Scooter Libby's sentence for perjury so transparently corrupt is Bush's long and remarkable record as Texas governor of denying clemency to almost anyone, and the contempt he expressed for even the process of reviewing appeals for mercy from death row. These were not white-collar criminals threatened by 30 months of jailtime. These were often individuals with very few resources facing the direst sentence imaginable: the death penalty. The massive discrepancy between the brusqueness with which Bush dismissed their pleas for mercy and the hours of careful study he cites in relieving Libby of inconvenience is proof positive to my mind of this president's reflexive sense of privilege, and profound moral and ethical corruption. Here's a devastating article from the Atlantic archives detailing Bush's clemency "decisions" while Texas governor. To give you a flavor:
On the morning of May 6, 1997, Governor George W. Bush signed his name to a confidential three-page memorandum from his legal counsel, Alberto R. Gonzales, and placed a bold black check mark next to a single word: DENY. It was the twenty-ninth time a death-row inmate's plea for clemency had been denied in the twenty-eight months since Bush had been sworn in. In this case Bush's signature led, shortly after 6:00 P.M. on the very same day, to the execution of Terry Washington, a mentally retarded thirty-three-year-old man with the communication skills of a seven-year-old.
Gonzales's summaries were Bush's primary source of information in deciding whether someone would live or die. Each is only three to seven pages long and generally consists of little more than a brief description of the crime, a paragraph or two on the defendant's personal background, and a condensed legal history. Although the summaries rarely make a recommendation for or against execution, many have a clear prosecutorial bias, and all seem to assume that if an appeals court rejected one or another of a defendant's claims, there is no conceivable rationale for the governor to revisit that claim. This assumption ignores one of the most basic reasons for clemency: the fact that the justice system makes mistakes...
The record as a whole is one of a human being utterly indifferent to the fate of others, especially those without money, connections or political value. The number of people George W. Bush sent to their deaths without a second's thought is higher than any living governor in the United States. And yet it took a perjury conviction of a white, wealthy, connected apparatchik to awaken the president's sensitivity to injustice:
A close examination of the Gonzales memoranda suggests that Governor Bush frequently approved executions based on only the most cursory briefings on the issues in dispute. In fact, in these documents Gonzales repeatedly failed to apprise the governor of crucial issues in the cases at hand: ineffective counsel, conflict of interest, mitigating evidence, even actual evidence of innocence.
Gonzales declined to be interviewed for this story, but during the 2000 presidential campaign I asked him if Bush ever read the clemency petitions of death-row inmates, and he equivocated. "I wouldn't say that was done in every case," he told me."
While the President may not have a glimmering record of mercy, I, on the other hand, have a long history of favoring mercy as a rule and prison for people who are dangerous, not just for revenge. And the hypocrisy on the Hill of who people favor prison time for and who they favor mercy for means that Americans should start facing up to their vindictive tendencies in matters of justice and law and get honest about the need to go deeper and find a more genuinely consistent and constructive approach to such matters. Everyone keeps flinging around "rule of law" like they actually take it seriously, which they do, until they find a freedom or someone's freedom, and particuarly their own freedom, which they favor and which they think the law should leave alone.
Is the freedom to engage in heterosexual or homosexual sodomy or oral sex really in the 14th Amendment's guarantee of due process as Anthony Kennedy asserted in Lawrence v. Texas? Of course not. We just get so full of our bullshit that we start to believe that our less that fully honest assertions of law and politics are more than they really are. Was Lawrence v. Texas good law. Of course it was, if you care in the least about human dignity and peoples' freedom to live their lives as they see fit without everyone deferring to enforcement of even the most foolish and intrusive laws. Lawrence v. Texas and Griswold v. Connecticut and so much of our best juris prudence (I know all the arguments for why Griswold v. Connecticut is not narrowly construed enough as a legal verdict; but Bill Douglas was right in a big way on the larger matter of whether the Constitution should protect a right to privacy, even if he probably should have referred to the 14th or 9th Amendement or any other more narrowly construed means of ruling in favor of a right to privacy) is predicated on argument more than law.
The Constitution said nothing about the equality of the races, explicitly, except that slaves, who were generally African American, should be counted as 3/4 of a man for purposes of a census and that Federal voting rights could not be denied on the basis of skin color. It implies that African Americans should be regarded as equal when the 14th Amendment proscribes that neither the Federal nor state government can "deny to any person within its jurisdiction the equal protection of the laws." But then the Supreme Court interprets under Plessy v. Ferguson (with the power to do so under Marbury v. Madison) that such protection does not necessarily mean equal treatment as we understand it today.
The Warren Court, in Brown v. Board of Education, Topeka, rightly, argued that principles of equality in the Constitution should apply to African Americans. The Constitution had not explicitly regarded African Americans as equal except as it concerned voting rights in the 15th Amendment and as a part of broader equality that was guaranteed under the 13th, 14th, and 15th Amendments and the 14th Amendment, in particular, but which has been interpreted under Plessy as regarding African Americans as equal with limitations we would never accept, today. What the Warren Court affirmed is what the law should embody, not what it explicitly did embody. And a more honest reflection on the law must reflect that this is the rule of legal interpretation, especially around issues that matter to us most, and should be. And, regardless of what should or should not be, most certainly is more often than not.
I don't give a shit what Dred Scott said. There is no way on God's green earth that you could have with my own free consent gotten me to return a fugitive slave or turn in Harriet Tubman, whose entirely legacy was built on violating fugitive slave laws. As as brilliant legal debate I just watched in C-SPAN exemplified, I don't give a shit what the law says. I will look for reasons as narrowly within the law as possible to invalidate the re-enslavement of Dred Scott and the fugitive slave laws that made them possible, but I will not sit and pretend like a narrow reading of those laws is somehow the right thing to do because I want to cover my hind end and keep my cooshy little prosecutorial or judicial employment. Because I know and believe that the highest political and moral principles put doing right by people above narrow interpretations of the law. And people who think otherwise have no serious interest in doing right by people, as far as I'm concerned, and thus have no claim on my conscience and should have no claim on the consciences of anyone.
There are a lot of people in Washington and America who want to see Libby and anyone they can get their hands on to go down for this war in Iraq, for allegations that the Administration was going after Joseph Wilson and Valerie Plame (a claim I am still not convinced of, though reading widely arguments and theories and reports to the effect). There are others who take the law too seriously and want to use Libby as some sanctamonious stand on how purely and stridently the law must be taken seriously even when it supports our less noble insticts and conflicts with our most noble instincts. Most of those same people wanted to help Bill Clinton escape a similar fate for a virtually identical crime, namely a crime about lying when no underlying crime had taken place. And most others are so full of themselves, the law, and all their bullshit around the sacred nature of the Holy Trinity of the law, their prefered political party, and their backsides that they can't even make the distinction anymore between the law and doing the right thing because doing the right thing doesn't always keep you prepped for your next government appointment. I'm sure many people really believe that strict enforcement of the law is what keeps people in line. I am open and familiar with arguments for why they believe this to be the case. I have not heard one yet that convinces me that this is case, however.
My record on mercy as a rule and prison as a place for people who are dangerous until we can be confident that they are not dangerous anymore and not a place for revenge, especially on your political enemies, is almost completely consistent (I say "almost completely" because it is possible that I have had a vengeful bone in my body at some point, but I couldn't name it for you now).
I'm tired of cynicism, hypocrisy, bloodthirst, political venom, and pious ideological and self-serving sanctimony ruling the day in Washington, especially when a man's freedom is at stake.
The law says President Bush has the right to commute or pardon any case that his judgment thinks warrants such commutation or pardon. Libby's attackers argue from a more narrow interpretation of the law, nevertheless what is the right thing to do, because it suits their venom for Libby and the President, not because it affirms the law. And others favor the verdict because of their pious indignation about the law as not an expression of the will of political interests but as the expression of everything that is right and true in their aspirations for power and access. Andrew, in particular, argues, rightly, for laws such as those against gay marriage, homosexual and heterosexual sodomy, marijuana use and a whole host of laws not be taken seriously, with full knowledge that people do and have regularly violated those laws and with no serious desire to see them enforced. And he's right to do so. Because they are foolish, bad laws.
And this prosecution was a foolish, bad prosecution for a crime around an investigation into a crime that the prosecutor knew full well, at the time, was not a crime that Libby had committed.
This prosecution is not about the narrow politics of Democrats taking down Republicans. This prosecution is about the narrow politics of angry Bush Administration detractors taking down someone, anyone, for what they see as abuses of power rather than disagreements with the judgments of the President and his Administration over the course of this war and power-obsessed observers who take the whole business of power and law far more seriously than it warrants. I've shared many of those disagreements people have with the Bush Administration. But I've done so without the venom or the vitriol that seems to have perpetually blinded the Administration's critics to how to correct or improve the sitaution in Iraq rather than how to take down the President or his loyalists, all in the name of the nobility of disinterested political virtue. It's all enough to make you cry, isn't it? The heroism of the Administration's detractors and the demonic nature of George Bush, Lewis Libby, Dick Cheney, and the rest of the Administration. It's a morality play of good critics versus an evil Administration. And my favorite part is how many Iraqis' and American soldiers' lives are saved by all of this nonsense and how much the American democratic discussion is uplifted, enlightened, and otherwise improved by this disinterested, noble witchhunt for the hide of Lewis Libby.
Lewis thought he was lying to make sure his friends didn't get in trouble for something that he didn't know would get them in legal trouble or not, even though there is no conclusive evidence that I have seen that they meant to do harm to Joseph Wilson or Valerie Plame, all assertions otherwise to the contrary. Lewis Libby's not a rapist or a murderer or someone dangerous who needs to be behind bars. He's a high level political official who is being used by a lot of people feeling hateful for the Administration and trying to prove how tough they are, in general, to use him as part of a morality tale about the uses and abuses of power. Except I've seen no evidence that he was actually trying to abuse power, yet. There's no reason he should do another day of jail in the name of this vitriol.
Lewis Libby's commutation and hopefully pardon offer some glimmer of hope, for me, that, perhaps, in the midst of all this cynical, high stakes hypocrisy and bullshit that, just perhaps, we might move in the direction of some simple decency while we sort out of what self-centered dicks we all are, even those who claim to only have the interests of the country at stake.
President Bush should think long and hard about all of those folks he executed in Texas and whether they, too, should have gotten the same consideration that he is giving his friend, right now. But that is the way forward. Considering more mercy for all people, not treating everyone equally shitty and with little regard for the destruction we wrought on peoples' lives in the name of our cynicism and bullshitting ourselves and one another about our truer motives and truer selves.
The truth is that we are all going to need an awful lot of mercy after this whole period is through. Because no matter how much we bullshit otherwise, like so many other regressive periods and policies in the past - Japanese internment, segregation, intidimation of political dissidents, and a million other examples - our get tough attitudes have had as much to do with us making excuses for what shitheads we are as it is had anything to do with decency or justice. We interpret law and politics thought arguments and ideas, whether we want to face that or not. Some of those arguments and ideas are better and some of worse. But the worst arguments and ideas are those which seek retribution on people for its own sake rather than saving prison for people who are really dangerous. We're just all so full of our own bullshit and propaganda and long-internalized, decent and higher purposed arguments for law to serve higher purposes and not just narrow legalisms that we forget that the Constitution and the law has not actually said half the shit we've asserted that it's said. We just say it does because we want to do what's right. And know, deep down in our shriveled little hearts, that this is the right way to treat one another and not enforcement of narrow legalisms that we know do wrong by people.
And that is what makes America and democracy great, much more than any narrow reading on getting tough or the rule of law.
Love,
Ben
