Wednesday, May 31, 2006

A Fein Idea

Say we've Had it. Ha! Send them Du Jail!

Two things are infinite -- the universe and human stupidity; and I'm not sure about the universe. --Albert Einstein

Time moves at a less frenetic pace on C-SPAN than elsewhere on television. Yesterday they were showing four law professors appearing before the House Judiciary Committee testifying about the FBI raid on Capitol Hill. Bruce Fein, Deputy Attorney General under Ronald Reagan was, as usual, brilliant. Putting his finger on a central weakness of our style of discourse, cause of many a derailed public discussion after 9-11, he pointed out the perils of forgetting the essential in pursuit of the incidental. Fein emphasized that the principle was key. If you let a (bad) principle stand and challenge only the incident, it is like ignoring a loaded weapon which can be brought out and used later.

Fein was talking about the principle of separation of powers, admonishing the committee to be firm in addressing the violation of this 'principle', instead of getting caught up in whether, in this instance, Congressman William Jefferson (D-LA) hid money in his refrigerator, etc.

His advice is more widely applicable. A few months ago, I had pointed out in an article, "Gonzales Channels Mark Twain how, in answer to a question by Chuck Schumer whether the Executive had the authority to tap the phones of its political opponents, Alberto Gonzales gave this answer, "We're not going to do that". Schumer and the other members simply moved on, apparently satisfied. Gonzales did not reject such a course on principle, only on the specifics as they existed at that point.

Everyone is now talking about Haditha. It is the Abu Ghraib of 2006. We've progressed from reports of systematic torture to stories of systematic murder. A perennial stock-in-trade here is 'innocent civilians' (see also Civilians and Combatants), which leads one to ask, if these were innocent civilians, what crime did the other 100000 Iraqis, who have been killed, maimed and displaced by Bush and Blair's war, commit? Or the half-million children estimated to have died during the sanctions preceding the invasion?

Here too Fein's point is valid: if we were not in Iraq, there would be no Hadithas and no Abu Ghraibs. It is the principle of the thing. In all the millions of words expended on Iraq War by Senators and Congressmen, commentators and journalists, a basic question seldom finds a place: How was it correct to invade a country that had not attacked us? If only we had persisted with this simple point of principle...It never featured in the Senate or any other debate.

Similar is the answer to charges of warrantless wiretapping: If you have nothing to hide, you have nothing to worry about. That this does not trouble most Senators is bad enough; that this point is actually advanced by some of them is astonishing. It is unnecessary to stress that if this is acceptable, so is the prospect of the local cops breaking into your home or car and searching it. Once you give up the principle of due process the road downhill beckons.

The administration is not averse to principle when convenient, pointing to Saddam Hussein's trial as upholding the principle of "no one is above the Law". Saddam Hussein and his colleagues are being prosecuted for deaths of people in Dujail. No one alleges that Saddam Hussein personally executed anyone. One more principle is then invoked, executive accountability. If these principles are applicable and celebrated by America and Britain, when will Bush and Blair be put in the dock for Haditha?

Niranjan Ramakrishnan can be reached at at His blog is at

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