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.)


Patrick S. O'Donnell said...


I'm curious as to what you think about Gary Wills' recent piece for the New York Review of Books in which he argues, essentially, that Obama is incapable of rising above the structural imperatives defined by the National Security State. This would help account for the fact that the President is, in SEVERAL IMPORTANT RESPECTS, similar to President Bush (of course I would in no way want to thereby trivialize or dismiss the ways in which he is decidely different). The gist of his argument, which would account for why the Obama administration can so readily take up the "few-bad-apples narratives," is as follows:

"But the momentum of accumulating powers in the executive is not easily reversed, checked, or even slowed. It was not created by the Bush administration. The whole history of America since World War II caused an inertial transfer of power toward the executive branch. The monopoly on use of nuclear weaponry, the cult of the commander in chief, the worldwide network of military bases to maintain nuclear alert and supremacy, the secret intelligence agencies, the entire national security state, the classification and clearance systems, the expansion of state secrets, the withholding of evidence and information, the permanent emergency that has melded World War II with the cold war and the cold war with the "war on terror"—all these make a vast and intricate structure that may not yield to effort at dismantling it. Sixty-eight straight years of war emergency powers (1941–2009) have made the abnormal normal, and constitutional diminishment the settled order. [....]

Perhaps it should come as no surprise that turning around the huge secret empire built by the National Security State is a hard, perhaps impossible, task. After most of the wars in US history there was a return to the constitutional condition of the pre-war world. But after those wars there was no lasting institutional security apparatus of the sort that was laboriously assembled in the 1940s and 1950s. After World War I, for instance, there was no CIA, no NSA, no mountain of secret documents to be guarded from unauthorized readers, no atomic bomb to guard, develop, deploy, and maintain in readiness on land, in the air, and on (or in) the sea. [....]

A president is greatly pressured to keep all the empire's secrets. He feels he must avoid embarrassing the hordes of agents, military personnel, and diplomatic instruments whose loyalty he must command. Keeping up morale in this vast, shady enterprise is something impressed on him by all manner of commitments. He becomes the prisoner of his own power. As President Truman could not not use the bomb, a modern president cannot not use the huge powers at his disposal. It has all been given him as the legacy of Bomb Power, the thing that makes him not only Commander in Chief but Leader of the Free World. He is a self-entangling giant."

The full article is here:

And for what it's worth, I think you're probably right that "the few-bad-apples narrative is actually a normative view disguised as a factual view." However, the Holocaust denial analogy seems a bit too grand if only because the false factual assertion in THAT case is pure denial, while the "few-bad-apples" case contains at least a core of truth insofar as it recognizes torture, abuse, degrading treatment and the like DID IN FACT OCCUR. This latter form of "offical denial" falls neatly under the heading of "Partial Acknowledgement" in Stanley Cohen's helpful treatment, States of Denial: Knowing About Atrocities and Suffering (2001): 113-116. Perhaps you're familiar with Cohen's book, but I think you'll find one or two analogies there that are not quite as extravagant as the Holocaust one and thus a bit more persuasive or useful to your overall argument.

Patrick S. O'Donnell said...

Oops! The name is of course Garry Wills.

Michael C. Dorf said...

Hi Patrick,

Thanks for the very insightful comment, including the Cohen book, which I'll check out.

W/r/t the Wills argument, I think the general thrust of the argument is right but that it understates the degree to which Bush pushed the edge of the envelope (albeit with an acquiescent Congress and, for the most part, an indifferent American people). I therefore also think that Obama could have rolled back more of the Bush poliies than he (thus far) has. Now I take it the core point is that even if Bush had not pushed executive power as far as he did, or that even if Obama had rolled it back to the pre-Bush status quo, that would still be an enormous concentration of power in the executive. That sounds right.

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