When the fat cats who brought us the economic debacle draw a huge bonus check for their efforts, we don't prosecute them. Many of us find social injustice in it, and for some it downright “shocks the conscience.” But, technically, it's not illegal. It would require a bill of attainder or an ex post facto law or something like that in order to make it legal. And we can't do those kinds of things because we must have Rule of Law. So we swallow hard to get this painful medicine down, telling ourselves it's simply necessary.

We treasure the fact that we are a Nation of Laws—even more than we hate the fact of how these individuals have taken advantage of us. It is a testimony to how much we love our system that we quietly bear this indignity rather than rising up with sticks and storming someone's gates, as might happen in other parts of the world when injustices like this come to light.

But then we turn to Obama's lack of desire to see a proper legal investigation of the torture. I've written about it. Everyone has. Posts on why prosecution is right are breeding like bunnies at Open Salon. Nothing more needs be said on that specific issue.

Handwaving, Distracting from the Truth

There's a card trick I was once taught. It involves you picking a card and me doing something that quickly tells me what your card is, but then not telling you that I know. Once I know your card, I can do all manner of elaborate stuff to hide that I know. The flair of the trick comes in obfuscating the fact that I know where I'm going to lead you, but I make it look like you're choosing the card, not me. I begin by laying cards out in 5 “clusters”.

Your card is plainly visible to me in one of them. You know it's yours. I know it's yours. But I'm not letting on that I know. I point to the cards I've laid out and say to you, “Pick three clusters.” You point to three that don't contain your card. I remove those. Had you pointed to three that contained your card, I'd have removed the ones you didn't point to. Either way, your card is still visible.

“Pick four cards,” I say. You point to four that are not your card, so I remove those—or maybe you point to four that have your card among them, so I remove the ones that don't.

You can perhaps see how this goes. Pick two cards. Then one. Wow, you picked your card. Or I did it “with your help.” Who would imagine you had no involvement in the outcome, that it was all just theatre.

The Leadership Shuffle

You'd think politicians would hate voters telling them what to do, but the irony of it all is that they adore having lots of constraints on what they're doing. One person cries out for a little bit of Rule of Law, and so the leader leans in that direction. Someone else cries out for some good old fashioned justice, and the savvy leader leans back in the other.

In a democracy, you'd like to believe that the politicians were responsible to the people, but the more a politician is tugged this way and that, the more the system becomes overconstrained—the more it's clear that you can't satisfy everyone. And then the politician is in the catbird's seat because he can do whatever he wants and always have complete deniability. Are we leading him or is he leading us? Who can really tell? It's like that card trick I mentioned earlier.

And are those rationales we're offered, or just rationalizations? When you have a complicated system like this that is affected by many things, such as the weather or the stock market, the techniques for analysis tend to turn away from trying to make isolated claims of isolatable cause and effect and more toward taking statistics and searching for correlations among recurring effects. It may be impossible to predict that any particular event will send the stock market up or down, for example, but people try to find evidence that will enhance their guesses above the level of mere chance. No one wants the world to be about mere chance, and so we've evolved brains to help us beat the odds.

Raising the Stakes

One place where statistical analysis of the patterns leads us is to note the pattern behavior between the prosecution of blue-collar crimes and white-collar crimes. No one wants to say that theft is something to be encouraged, but when a poor person robs someone, it may be motivated by need; when a well-off person embezzles money, it's probably out of boredom. And yet we, as a society, seem to feel free to punish poor people much more harshly than we punish the affluent.

It is clear that if an ordinary person tortured another, even to a lesser degree than what is being discussed, prosecution would ensue. (Frankly, if an ordinary person treated an animal this way, prosecution would ensue, and animals don't even have the rights of humans.) But prosecution is taking its time just now. Why? Even allowing speculation on this matter is injurious to our national situation.

We are undergoing some Very Bad Times. And at times like this, people need to believe that they can look to government as a source of strength to get them through these hard times. But if ordinary citizens, when they look to government, don't see a strong sense that the rules that bind us as a nation really matter, they're not going to stand for being told they must follow the rules while their leaders don't. They're going to see instead yet another addition to the repertoire of of white-collar crimes: high crimes. Or perhaps they'll see it as the creation of a whole new category of “high collar crimes.” They're going to see that they must accept being fleeced by companies that don't care about them while government officials can commit crimes with impunity.

It can't be the case that goverment can abuse the law freely and that this is okay because “the end justifies the means,” but at the same time we can't go after people who caused the economic debacle because we are a nation of laws and we must not indulge Machiavellian desire to go after people simply because we can. That kind of sleight of hand—playing fast and loose with the rules—will be recognized by the populace as a clear signal that the rules are just there for show.

My perception is that a growing number of unhappy citizens are increasingly eyeing their brickbats, rifles, and whatnot as possible tools in fixing problems that government doesn't seem to be fixing, and right wing talk radio seems to be egging them on. In a nation where so many citizens are feeling uncommonly stressed, we need the comfort of knowing that the system is working even if many of our individual lives are not. It may be tedious to endure a prosecution of war criminals when we have better things to do, but it will be fair and just. It will reassure individual citizens that when they are asked to play by the rules, it's not just because such rhetoric sounds good in the moment, but in fact because fair play is what's required of everyone.

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Related articles I've recently written:
Rule of Law
Where Conscience is Borne