Monday, October 12, 2009

Bad Apples

By Mike Dorf

With President Obama having been awarded a Nobel Prize mostly for not being President Bush, this is an awkward time for me to promote a new paper of mine that argues, among other things, that President Obama is, in an important respect, similar to President Bush.  The paper, Iqbal and Bad Apples (which will be published in a symposium issue of the Lewis & Clark Law Review), expands upon a point I made in passing in an earlier FindLaw column:  that, in addition to its difficulties as a civil procedure case, the Supreme Court's decision in Ashcroft v. Iqbal lends the Supreme Court's imprimatur to what I call the "few-bad-apples narrative" of mistreatment of prisoners by the Bush Administration.

The paper makes two further points that I would highlight here.  First, I discuss the Obama Administration's decision to investigate and potentially prosecute low-ranking interrogators who committed unauthorized abuses but not the high-ranking officials who created and implemented a policy of equally bad or worse abuses.  I say that this approach ends up confirming the few-bad-apples narrative.

Second, I ask how the few-bad-apples narrative can possibly succeed given the fact that the public record is full of evidence that detainee abuse was ordered from above and that leading Bush Administration officials--especially former VP Cheney--have been publicly touting just that.  My provocative answer is that the few-bad-apples narrative is actually a normative view disguised as a factual view.  In that regard (though certainly not in others), I compare it to Holocaust denial.  (I have a footnote making clear that I'm not comparing Bush, Obama or the Supreme Court to Nazis; I'm just using the best analogy I know to a false factual assertion that functions as a normative claim.)