Cogency and consequences

Politicians are deserting President Bush on Iraq. But much of Bush's difficulty in maintaining support on this issue, both among politicians and with the American public, is directly traceable to the short cuts Bush took in arguing for the Iraq invasion in the first place.

In law school, "Trial Practice" is the class where students are taught how to properly try a case in front of a jury. This part of legal practice is literally the tip of the iceberg -- it's the small fraction of legal practice that is visible to the public, but it's not necessarily representative of what most lawyers do, and it's not even representative of how lawyers usually argue.

When a lawyer makes an argument to a judge (e.g., in written briefs during appeal), it's perfectly permissible to make the following points: (1) my client isn't guilty because he was out of the country; (2) even if he was in the country, he had no reason to do it; (3) he might have done it, but you can't prove it, because the gun with his fingerprints isn't admissible; (4) even if you can prove he did it, he's not responsible because it was a crime of passion ("HOPSAP" in legal lingo, for "heat of passion with sudden adequate provocation"); (5) whether he did it or not is irrelevant, because the trial was impermissibly tainted by bias by the presiding judge; etc. ad infinitum. In other words, it is perfectly permissible to make a series of mutually exclusive arguments, any one of which, if it wins the day, is a sufficient basis for obtaining your desired result.

But in "Trial Practice," we were taught to never make these types of arguments to a jury. As my professor used to say, "You can't ride two horses at once. Pick one horse and ride it." The reason for this is juries believe -- somewhat quaintly -- that the purpose of the judicial process is to determine the objective truth of the matter, and if you lawyerly propose mutually exclusive theories of the case, by definition at least one of these theories is false, so you lose credibility with the jury for proposing something that isn't "true."

A corollary of this rule is that even if you've settled on a single theory of the case, you'd better make sure all your supporting evidence is accurate, because if you introduce even a single piece of evidence that is later proved to be false or inaccurate, the credibility of every other piece of evidence will be tainted by association, and you'll likely lose your case. At the very least, you'll have to spend valuable time and resources attempting to rehabilitate the credibility of your remaining evidence, perhaps fatally distracting the jury from the main points of your case in the meantime.

This second rule is most frustrating for lawyers when even after the disputed evidence is eliminated, sufficient creditable evidence remains to support their case. The way to prevent this to look at all the evidence which supports your argument, rank each piece of evidence according to its respective credibility, and use only enough evidence to support your argument and no more. That way, you don't risk having your entire case undermined by padding your case with a piece of evidence you didn't really need whose credibility is later called into question.

Think of how when the memorandum regarding Bush's National Guard time in Texas relied on in the "60 Minutes II" report was revealed to be "creatively duplicated," or forged (though Mary Mapes now contests this and continues to assert its authenticity), no one cared that the content of the memorandum remained uncontroverted. Instead, CBS lost credibility and was never able to steer public attention away from the forgeries and back to the substance of the report.

Similarly, in the O.J. Simpson trial, once Mark Furman was revealed to have lied on the stand when he denied ever using a racial epithet -- something completely unrelated to whether Simpson killed his wife -- Furman's credibility was destroyed with the jury, undermining his testimony which was actually relevant.

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There's an old saying: If all you have is a hammer, you'll see every problem as a nail. The Bush administration has often seemed to have only two solutions in its policy toolbox: cutting taxes and invading Iraq. If the economy is doing well and the government is running a budget surplus, they want to cut taxes to return the money of the American people. If the economy is doing poorly and the government is running a deficit, they want to cut taxes to spur spending. We've learned conservatives always want to cut taxes, and they will twist economic realities and arguments so that the solution to any economic problem is to cut taxes.

Similarly, after Bush came into office, deposing Saddam was his administration's one-size-fits-all foreign policy solution. As far as Bush was concerned, particularly post-9/11, there were 20 good reasons to invade Iraq. And the key thing is, he didn't feel compelled to convince a majority of the American public of any single reason to invade Iraq; instead, he was content to use a panoply of niche arguments. Just like in a presidential election, where a candidate is happy to give each of 10 different constituencies a different reason to vote for him (e.g., a Democratic will make to pitch to union audience, a different pitch to soccer moms, and a still different pitch to Iowa farmers), Bush thought he could throw out 20 different reasons to invade Iraq, and as long as a majority of the American public was persuaded by one of them, it didn't matter if some rationales for invasion were mutually exclusive.

The reasons for invading Iraq have included at one time or another: (i) Iraqi officials may have been involved in planning the attack on 9/11; (ii) even if Iraq wasn't involved in the planning, its leaders had connections to Al Queda and probably had advance knowledge of the attack; (iii) even if Iraqi leaders didn't have knowledge of the attack, they had provided resources and training to the terrorists; (iv) even if they didn't provide resources and training, Iraqi intelligence officials had met with the terrorists and one of the terrorists had obtained medical treatment in Iraq (this justifies invasion?); (v) even if Iraq wasn't directly, or even indirectly, connected to the 9/11 terrorists or Al Queda, Iraq was still a "haven" for terrorist activity (if it was a "haven" before, what is it now?); (vi) even if it wasn't connected to terrorist activity, Iraq had weapons of mass destruction and was a threat to regional stability; (vii) even if Iraq didn't have WMD, our good faith but mistaken belief was justified, and everybody else believed it, too; (viii) even if we didn't have good reasons to believe they had WMD, Iraq had failed, by kicking out the weapons inspectors, to prove that it didn't have WMD, and after the first Gulf war, the burden was on Iraq to prove it didn't, not us to prove it did; (ix) even if we should have known Iraq didn't have WMD, they wanted to have WMD; (x) Saddam was a bad guy and committed human rights abuses on his own people; (xi) we're not there to "nation build," we're there to liberate, and the Iraqis will build their own nation; (xii) maybe we're there to nation build, but there's nothing wrong with that. (And add on the unspoken political calculation (now not only laughable but both ironic and tragic) that the Iraq war was viewed as more tangibly winnable than the war on Al Queda and the capture of bin Laden.)

Now, some of these justifications are more reasonable than others, but there is clearly no overall consistency to the argument. And it certainly didn't help matters that one day after Bush would admit that there was no reason to believe Iraq was connected to 9/11, Cheney would publicly state that the lack of evidence didn't prove the lack of a link, like a conspiracy theorist for whom the lack of evidence of the conspiracy is merely proof of the insidious effectiveness of the conspiracy.

But instead of the multiplicity of reasons to invade Iraq having a cumulatively reinforcing effect as the invasion apologists intended, all it conveyed was that the Administration was hedging its bets with regard to any single reason, as if they themselves weren't convinced of the truthfulness of any of them. One is left with the impression that the Administration was generating smoke to depict Iraq in its worst possible light and simultaneously telling the public, "Where there's smoke, there must be fire."

And of course, we know how the story of the invasion ended. The Bush administration presented these various justifications for invasion to the public, in violation of the first rule from Trial Practice described above. The critics responded that none of these reasons met the criteria of a "casus belli." So the Administration, acting in its search for a "casus belli" like a traffic cop looking for an excuse to pull over a reputed drunk for DUI and who sees the "drunk" with a broken taillight, beefed up the evidence of WMDs and made reasonable but controverted interpretations of intelligence appear not only unequivocal and undisputed but dangerously imminent. And to bolster the conclusion that Iraq was on the verge of using WMDs, the Administration had Colin Powell make an everything-but-the-kitchen-sink speech that included evidence whose credibility was likely to be later disproved, in violation of the second rule from Trial Practice described above.

None of this establishes the rightness or wrongness of the invasion. But it does make clear that based on the way the Bush administration got us into this mess, it was almost inevitable that the wheels would fall off whatever public and international support for the invasion existed in the first place. Bush may rail against trial lawyers, but he sure could have used a good one as an advisor in the fall (or the "Fall") of 2002.