White House proclaims O.J.’s innocence

Scott McClellan, in his press briefing yesterday, announced that George W. Bush hadn’t been AWOL from the Texas Air National Guard and that his honorable discharge proves it. [One of Calpundit’s commenters quotes the relevant section.]

I guess O.J. Simpson didn’t kill his wife, then.

“Innocent until proven guilty” is indeed a cornerstone of our criminal justice system. No matter what you’ve actually done, in law you’re not a criminal until a jury finds you guilty beyond reasonable doubt of some crime, and until that finding makes you legally a criminal you can’t be criminally punished.

But that’s not the way the word “criminal,” or the words describing people who commit specific crimes such as “murderer” or “perjurer” or “burglar” or “con artist” or “racketeer” or “deserter,” are used in ordinary speech and writing.

Sure, responsible media outlets, when describing those who are or are about to be defendants in criminal trials, should be, and usually are, careful to write and speak of “alleged” crimes and “accused” persons, rather than prejudicing potential jurors. But that doesn’t mean that it’s a mistake to call Al Capone a murderer, though he was never tried for murder, or O.J. Simpson a murderer, though he was acquitted of that crime. In ordinary language and common sense, a person becomes a criminal when he commits a crime, not when the jury returns a verdict.

O.J. Simpson became a murderer when his wife’s heart stopped beating after he had stabbed her. The skill of the Dream Team and the incompetence of the prosecution and the police could shield him from the consquences of being a murderer, but they couldn’t change the underlying fact.

Or have we suddenly decided that it was wrong to call Saddam Hussein a “mass murderer”? Or Hitler, Stalin, and Mao, for that mattter? [Just to prevent a storm of angry email: I’m not saying, and I don’t believe, that Bush’s conduct was in any way comparable in seriousness to the examples above; my point is only that the rule “Never call someone by a name designating a crime unless he has been convicted of that crime” leads to absurd implications.]

By McClellan’s reasoning, if you want to call it that, no criminal ever got away with his crime, because if he got away with it he wasn’t a criminal after all. This is truly the brand of logic that Lincoln said could prove that a horse-chestnut was a chestnut horse.

As it turns out, George W. Bush never committed the crime of being Absent Without Leave as defined by the Uniform Code of Military Justice, because the UCMJ doesn’t apply to members of the Guard and Reservers except when they’re actually on duty. (As Terry McAuliffe told Wolf Blitzer, in a phrase I bet Wes Clark wishes he’d thought of, “To be a deserter you actually have to show up.”)

However, that doesn’t get Bush off the hook, even in technical, legal terms. His conduct is covered by the Texas Code of Military Justice, to which he was subject as a member of the Texas Air National Guard. The TCMJ provides, in relevant part (emphasis added):

§ 432.131. Absence Without Leave

A person subject to this chapter shall be punished as a court-martial directs if the person without authority:

(1) fails to go to his appointed place of duty at the time prescribed;

(2) goes from that place; or

(3) absents himself or remains absent from his unit, organization, or place of duty at which he is required to be at the time prescribed.

Acts 1987, 70th Leg., ch. 147, § 1, eff. Sept. 1, 1987.

(Whether Bush could have been charged with the more serious crime of “desertion” under the TCMJ depends on whether his failure to do any Guard duty in the months after his return from Alabama and before his burst of activity in the summer of 1973 could rightly be construed as indicating an intention to remain absent permanently. My reading of the facts is that the crime of desertion cannot be made out.)

I agree with Kevin Drum: The media, and the rest of us, should demand, and keep demanding, that Mr. Bush release the relevent documents, of which Phil Carter considerately provides a list.

But it seems very implausible that those documents, if released, will not show that Mr. Bush did no duty whatever between his return from Alabama in November 1972 and May of 1973, when his superiors in Texas reported that they couldn’t fill out an efficiency report because Bush hadn’t been seen for a year. During that period, he must have been obligated to do some duty.

So I see no reasonable objection to describing him as having been AWOL, since his behavior satisfied the elements of that offense as defined by the code to which he was subject.

(Yes, this is largely about Mr. Bush’s conduct 30 years ago. I agree with Wes Clark that Mr. Bush’s derelictions of duty as Commander in Chief are surely more relevant to a voter’s judgement of him than his derelections of duty as a 1st Lieutenant in the TANG. But the attempt by Mr. Bush and his friends to cover up his conduct aren’t 30 years old; they’re as current as today.)

Additional links:

Calpundit on the torn document

Josh Marshall’s analysis

A trove of documents from TomPaine.com

Glenn Reynolds’s guide to Right Blogistan’s reaction. (I can’t tell why Glenn thinks that Democrats who defended Clinton from the “draft-dodger” charge — when Clinton hadn’t actually committed the crime of draft evasion — are hypocrites for attacking Bush now, while Republicans who have been calling Clinton a “draft-dodger” aren’t hypocrites for defending Bush now. I suppose it’s all a matter of whose ox is gored. But it does seem to me that the people who argue, on the one hand, that Bush’s Guard service was just as patriotic as John Kerry’s or Wesley Clark’s going to Vietnam and getting shot, are on tricky ground when they go on to argue on the other hand that Bush’s failure to perform that duty as required is no big deal.)

My earlier thoughts

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: Markarkleiman-at-gmail.com