About This Blog

Judging Crimes is a blog about criminal law, violent crime and the judiciary, dedicated to making the liberal case for greater democratic control of the criminal justice system.  It's a "view from the trenches" because it's written by a practitioner, not an academic or journalist.  It examines the changing role of the judiciary in American society by looking at what judges actually do, rather than what they say.  I know what they do because I deal with the consequences every day. 

Opinions issued by judges, from Supreme Court justices on down, are justifications for the exercise of governmental power.  But it is the exercise of power itself that should command our attention, not the justifications.  Judging Crimes is concerned with the reality of judicial power rather than the verbal formulas used to defend it. 

American law professors have long liked to say they teach their students "to think like a lawyer."  Learning to think that way is a matter of internalizing certain assumptions.  The practice of judging is likewise based on a foundation of shared assumptions, among them that the United States Constitution -- a document of 8,335 words, the length of a book chapter -- provides an answer to every question.  Rather like a Ouija board.

These assumptions are so ingrained -- and their internalization is so necessary to the successful practice of law -- that most people who subscribe to them aren't even aware of having done so.  Judging Crimes will try to engage not just with the expressions of judicial power, but with the assumptions on which those expressions  rest.  

Judging Crimes won't be filled with daily entries commenting on the day's events or provide a best-of-the-web welter of links.  Many other blogs already do that, far better than I could hope to do.  (Check out these.)  Instead, Judging Crimes will contain pieces of a length that might seem long for a blog but would be short in a serious magazine.  I hope to post new pieces several times a week.

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Thursday
07Sep

163. Wagging the 9/11 dog

A Reuters piece says Democrats are up in arms about a TV movie about the years before the 9/11 attacks.  The movie supposedly "suggests the Clinton administration was too distracted by the Monica Lewinsky sex scandal to deal properly with the gathering threat posed by Islamic militants."

That's a change from what folks were saying in 1998, when President Clinton ordered a military attack on the Afghanistan training camps run by Osama bin Laden.  Back then, the accusation was that Clinton was "wagging the dog" - indulging in a showy attempt to distract the nation from the far more serious issue of whether fellatio counts as having sex.  (The phrase came from the name of a movie based on the tired Hollywood conceit that Hollywood's hollowness, venality and deceit is nothing out of the ordinary in American life.)

Jim Gibbons, currently running for governor of Nevada, voiced his opposition to military strikes against bin Laden, saying: "I think this has all the elements of that movie.  Our reaction to the embassy bombings should be based on sound credible evidence, not a knee-jerk reaction to try to direct public attention away from his personal problems."  Here's a lot more in that vein.

The foreign press was, if anything, even more brutal.  The Sydney Morning Herald (which bills itself as "Australia’s most prestigious daily newspaper, reaching discerning and involved readers who trust its independence, authority and integrity" - Crikey!  Subtlety isn't the Aussies' strong suit, is it?) ran a long piece on August 29, 1998, reporting that the Americans' source for believing bin Laden was involved in terrorism may have been a Mossad plant, and adding: "Business people, diplomats and aid workers of other countries, including Australia, have become unwilling front-line soldiers in a war declared by a US president who, according to his critics, took up the cudgels merely to distract a domestic audience from his much-publicized sexual indiscretions." 

(Note the reporter's description of one of bin Laden's murderers: "'We knew we were under attack and we wanted to hit back, but we could do nothing,' said Maaz Ali, 19, of Bahawalpur, in Pakistani Punjab, tears of frozen rage brimming in his eyes, as he recalled the night the sky lit up over Khost."  Must have been pretty cold that August.  And it was pretty observant of the reporter to notice, wasn't it?  I mean, I can't begin to count the number of times I've talked to people without even registering whether their rage was frozen or not.)

So back in 1998, Clinton's attempts to take out bin Laden were denigrated as attempts to distract the nation from the scandal of his sex (or, perhaps, non-sex) life.  Now, in 2006, Clinton's failure to take out bin Laden is viewed as evidence that he himself was distracted by that scandal, or perhaps by the philosophical question it raised.

My own long-held suspicion is that the "wag the dog" meme made it politically very difficult for Clinton to take more forceful action against bin Laden.  Which is another way of saying that it contributed to 9/11. 

Justice Stevens was guilty of perhaps the most fatuous statement ever made by any judge in American history when he said that Paula Jones' suit against Clinton "appears to us highly unlikely to occupy any substantial amount of [the President]'s time."  The lawsuit authorized by the Supremes set in motion the investigation into Clinton's relationship with Lewinsky, the White House intern.

When the Court decided that anything a federal court does is, by definition, a higher priority than anything a President does - and that, I'm afraid, is the essence of Stevens' opinion - it created a whole host of cascading problems for Clinton.  At the very least, the Court's decision complicated Clinton's response to bin Laden's murderous attacks against the American embassies.

And doesn't that lead to the conclusion that the Court bears some responsibility for bin Laden's follow-up to those attacks?

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