Friday, September 09, 2005

Re: The So-Called Blame Game

----- Original Message -----

From: Richard Boswell
To: Dean Lawrence R. Velvel
Sent: Friday, September 09, 2005 11:21 AM
Subject: Re: The so-called blame game

I agree with your assessment but I would add some additional thoughts.

Notice also how the Bush Administration never responds to the funding cut-backs of the Army Corps of Engineers. Instead all they talk about is how there was a failure in responding adequately at a "local, state and national level." They know that it will be better politically to have to share the blame for the response, because after all, the rest could not have been predicted. As the price tag mounts -- Senator Landrieu believes that it will reach 200 billion -- the Administration will keep the discussion away from the failure of the government to do what government is supposed to do, protect the people.

I think that you let them off too easy by putting it only at Bush's doorstep. This is part of the political philosophy of many conservatives. They believe that government should be minimalist, and all of the concern about racism and poverty is just nonsense. So there are layers of issues that have to be talked about -- I don't care what the order is but they must all be combined into one package.

Thanks for your blogs.

On Sep 8, 2005, at 10:29 AM, Dean Lawrence R. Velvel wrote:

September 8, 2005

Re: The So-called Blame Game.

From: Dean Lawrence R. Velvel

Dear Colleagues:

The current Bushian ploy for seeking to escape responsibility for awful conduct is to say that this is no time to focus on what went wrong in New Orleans. We should, rather, focus on rebuilding lives, rebuilding a city. One has but to turn on the tube to hear this said by the Bushers, including their Congressional henchmen like Denny Hastert.

Well, of course we should focus on rebuilding lives and cities. But we should also focus on determining responsibility and on holding accountable those whose incompetence -- whose even conceivable malignity against the less fortunate of the earth -- contributed to the disaster in the Gulf states. (Both sets of Gulf states incidentally, i.e., both at home and in the Middle East.) For the failure to determine, point fingers at and punish the guilty, the incompetent, the immoral, the stupid is one of the reasons our public life has undergone the systemic failure discussed in yesterday’s posting. It is one of the reasons that incompetence and dishonesty rule. What is to stop them from ruling if we do not assign responsibility and in appropriate ways -- politically, legally, or both -- punish those who are guilty of them?

As said before on this blog, one of the reasons we keep getting into and staying in debilitating, avoidable wars is that nobody in power gets punished in courts of law for unlawful evilness or blockheadedness in doing this. Not Johnson, not Bush, not McNamara, not Nixon, not Kissinger, not Bush II, not Wolfowitz, not anybody. One of the reasons we tortured people is that the Administration’s lawyers invented bushwa reasons why those who ordered, allowed, or committed torture would supposedly not be punishable under the Anti-Torture Statute. What the Bushers and their Hastertian henchmen are doing today is that they are trying to continue, in the political sphere, the lack of accountability and lack of punishment for incompetent and/or wilfully negligent acts that has protected Bush and company in both the political and legal spheres.

You know, what the Bushers are doing is just another example of the double standard usually applied in America. The Bushers, and lots of the rest of us too -- let’s admit it -- look at the pictures of looting in New Orleans and say those people are doing terrible things. Some of us have the decency to exclude from this judgment those who are taking necessities of life such as food, medicine and baby needs, rather than TV sets or fancy blue jeans. Some of the Bushers, I unhappily suspect, would not even exclude those who are doing only what is necessary to stay alive. But be all this as it may, the fact is that, as a general matter, this society is quick to hold accountable and punish the poor, the black. We also have been known to seek, encourage, or ourselves impose punishment or retribution upon foreign leaders whose policies displeased us: Mossadeq, Lumumba, the Diems, the Sandinistas, Noriega, Saddam. But hold accountable and appropriately punish, politically or legally, domestic politicians who wilfully commit evil at home or abroad, or who incompetently allow or contribute to terrible things? Not a chance.

Nor for that matter did this society, until the recent debacle on Wall Street, hold accountable and punish, during the 1990s and early 2000s, the crooks, liars and immoralites in business who were stripping people of their money by one crooked scheme and another. (And now that some -- not even all -- of these crooks are going off to the slammer, Wall Street is doing everything it can do loosen the reins of Sarbanes-Oxley.)

Nor have Bushian henchpeople been held accountable in Congress (or elsewhere) for the evil they have done. Rather, Congress gives a free pass to, and promotes to federal judgeships and cabinet positions, participants in the torture business like Alberto Gonzalez, Michael Chertoff and Jay Bybee.

So it is little wonder that people like Bush, Cheney and their corps of henchpeople feel empowered to do or allow evil. For the likes of them there has never been any legal punishment, and only rarely in recent history has there even been any political punishment. (Johnson felt he had to quit and Nixon felt he had better resign one step ahead of the posse, but that’s pretty much it. And it took really awful, long sustained horrible actions for even these two continuous malefactors to receive this political punishment.) And now, having lived in the historically well founded expectation that they will remain free of punishment, whether legal or political, the Bushers and their henchpeople are screaming like stuck pigs because suddenly their misconduct is catching up with them, and suddenly it appears that, because of New Orleans, they are going to have to pay a heavy price for years of misconduct and downright evil.

So they have rolled out the platitudes in a desperate effort to escape this. They are platitudinously telling us that this supposedly is no time to be assigning culpability, that to assign culpability is to play the blame game, and that George the Incompetent is focusing on overcoming the disaster and, like Mommy with her little child, he will make it all better. One begs to differ. While we are desperately trying to right a desperate situation, we also should be seeking to find out who bears contributing responsibility and to impose the appropriate political punishment upon them. Imposing punishment -- politically when justified, legally when justified, or both -- is the only way that decades of misconduct in public life is ever going to end.

Yesterday or the day before, when one of the Busher henchmen came out of a meeting and said to the TV cameras that people shouldn’t be assigning blame now, a female legislator -- I frankly don’t remember who, or even if she was a Democrat or a Republican -- quickly tried to elide this by saying something like, oh no, we’re not doing that, we’re not trying to assign blame. We’re just trying to find out what went wrong so that this kind of debacle can be avoided in the future. Wrong answer. Really the wrong answer. The right answer is that of course we’re trying to determine and assign blame and to then punish the culpable. I should hope we’re trying to do this. For only by determining and assigning blame -- which inherently requires learning what went wrong -- and then punishing the culpable can we ever hope to put an end to bad conduct or negligent conduct.

Punishing the culpable is said to be required in the case of street criminals. Why doesn’t this apply to pols?

You know, it is true that there are people or groups who sometimes, even often, tend to focus excessively on the past to their own detriment. In the Balkans, apparently, people still see things in the light of the Field of Blackbirds, a battle that occurred 500 years ago. According to Bernard Lewis and others, one of the problems in the Arab world, maybe the problem of that world, is that it can’t forget the Arab glories of 500 to 1,200 years ago, and can’t forgive the west for surpassing the Arabs in the last 500 years. Proclaiming that his Irish ancestry gave him license otherwise lacking to say it, an Irish American assistant to Bill Clinton once joked in a speech at our school that, "I’m Irish. So forget the future. Let’s focus on the past." My own tribe, the Jews, tend to focus extensively on the past.

And conversely, one of the great strengths of America has been that its people often tend, even generally tend, to say forget about the past. Instead let’s look to the future, plan for the future, have high hopes for the future. "Optimism is a force multiplier" says one of the rules Colin Powell kept on his desk, if I remember correctly. This is a (quite true) future oriented statement. So too Longfellow’s classic lines, "Thou, too, sail on, O Ship of State!/ Sail on, O Union, strong and great!/Humanity with all its fears,/With all its hopes of future years,/Is hanging breathless on thy fate!"

But it is all too possible to vastly overdo the ignoring of the past while focusing on the future. This nation has pretty much become, in the last 60 years or so, a country that does not know and ignores history, its mistakes, and its lessons, and which therefore finds itself, as Santayana warned, condemned to repeat the mistakes and having to relearn the lessons. And, as part of our almost exclusively forward looking orientation, we let the malefactors of the past get off scot free, lest we dwell excessively on the past. We tend to think that, if only we forget the past and move forward, then, as the partially hapless Ford said about a month before he pardoned Nixon, our "long national nightmare [will be] over." But it doesn’t work that way (as even Ford’s pardon showed). When you keep on forgetting about the past, and don’t appropriately punish the people who wilfully or negligently or ineptly caused or contributed to terrible disasters, then you just keep on getting more terrible disasters because such people have nothing to fear from causing them or allowing them to happen. That is our theory about punishing street criminals. That was our theory for creating the Nuremberg principles and for hanging the German and Japanese leaders of World War II under those or other rules. Why is the theory inapplicable to the George W. Bushes and Dick Cheneys of this world? If you ask me, it is entirely applicable to them, and, while we simultaneously do everything that can be done to help reconstruct the lives of New Orleanians and rebuild their city, we should also be assessing and assigning blame to all the pols, national, state and local,who contributed to this disaster in the host of ways they did, from cutting funds for levees to doing nothing while people drowned.*

*This posting represents the personal views of Lawrence R. Velvel. If you wish to respond to this email/blog, please email your response to me at Your response may be posted on the blog if you have no objection; please tell me if you do object.

Richard A. Boswell
Professor of Law
U.C. Hastings
200 McAllister St., San Francisco, CA 94102
tel: 415 565-4633
fax 415 565-4865 or

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