Historical Truth, Nazis and the Corruption of the Federal Judiciary

There was a time when it was permissible to think that the chief purpose of the judicial branch of government was to protect our constitutional rights as a check on runaway legislative majorities or executive overreach. To fulfill that duty, a judge is insulated from partisan maneuvering by a grant of lifetime tenure and a constitutionally guaranteed salary. In return, the federal judge must show discretion, decorum and above all, an unwillingness to be drawn into partisan quarrels. This behavior is known as having a judicial temperament.

The tradition of apolitical judges has come under strain recently, given the habit of even Supreme Court justices to pop off like opinionated customers in a saloon (I’m thinking of you, Tony Scalia). But new ground has been broken in partisan mudslinging by Justice Laurence H. Silberman, an appellate judge appointed by Ronald Reagan. He has taken to the pages of Rupert Murdoch’s Wall Street Journal to attack as dangerously irresponsible the millions of Americans who believe George W. Bush lied about the presence of weapons of mass destruction as a pretext for invading Iraq.

How does Silberman know this? He writes on the authority of having been cochairman of The Commission on the Intelligence Capabilities of the United States Regarding Weapons of Mass Destruction. This commission, appointed by Bush, found no intent by the president to mislead Congress or the public about the presence of WMD; after all, the 2002 National Intelligence Estimate made the claim about Iraqi WMD, not Bush.

That conclusion is hardly surprising, because the commission’s scope was so narrowly defined as to preclude examining whether the president and his advisers put pressure on the intelligence community to produce the worst NIE (national intelligence estimate) in history. The failings of the commission and Silberman’s misrepresentation of its findings have been covered more than adequately elsewhere. It is worth mentioning though, that the commission was stacked with partisan Republicans (can one imagine Senator John McCain, who was on the panel, performing a dispassionate analysis of anything?). Among the token Democratic panel members was the cochairman, former Sen. Charles Robb, a walking vacuum.

Whatever his other cognitive weaknesses, Bush certainly knew what he was doing when he appointed Silberman to run the commission. In 1980, Silberman was a cochair of presidential candidate Reagan’s foreign policy team. Later, when on the federal bench, he overturned Colonel Oliver North’s conviction on three felony counts in the Iran-Contra case. He upheld key portions of the Patriot Act, an unconstitutional statute that had been stampeded through a panicked and fearful Congress. As a judge who served on the Foreign Intelligence Surveillance Court of Review, he is a member in good standing of the Deep State. No wonder Bush awarded Silberman the Medal of Freedom; that little spangle was the customary gold watch for George Tenet, L. Paul Bremer and all the other hired help who cleaned up after the president’s messes.

Distasteful as it may be for someone to flaunt his judicial credentials while claiming to adjudicate the historical truth of a subject on which he has a partisan conflict of interest, that is hardly the limit of his transgression. What is truly insulting is for Silberman to compare critics of the war who believed Bush lied to Nazis. He writes: “I am reminded of a similarly baseless accusation that helped the Nazis come to power in Germany: that the German army had not really lost World War I, that the soldiers instead had been ‘stabbed in the back’ by politicians.”

One hardly knows where to begin with this historical falsification. The “stab-in-the-back” myth, the “Dolchstosslegende,” was concocted by far-right Germans, including Nazis, in an attempt to justify rather than discredit the war. They claimed the German army could have continued fighting, but was stabbed in the back by pacifist politicians. Critics of the Iraq war, by contrast, always believed the war should never have been fought in the first place. German critics of their country’s participation in World War I, like Karl Liebknecht or Rosa Luxemburg, ended up being murdered for their views. One shudders to think that a federal judge has so much difficulty sorting out facts and evidence.

The stab-in-the-back myth has been a standard right-wing refrain throughout my lifetime. The slippery politician Harry S. Truman stabbed General MacArthur in the back over Korea by refusing to let him win. Dirty hippies and the media stabbed our boys in the back as they fought in Vietnam. And now, of course, ISIS is Obama’s fault because he withdrew troops from Iraq. Never mind that Obama withdrew them precisely according to Bush’s already-negotiated timetable and that ISIS was the bastard child of our invasion. Yet Silberman smears critics of war, rather than chickenhawk proponents of war, because it fits so neatly into his worldview.

Judicial corruption does not require a cash nexus. The justices of the federal judiciary, who have lifetime tenure and fixed salaries, receive no bribes to rule the way they do. What Laurence Silberman has shown us is the fact that intellectual corruption can be as corrosive to the integrity of the bench as a cash bribe.