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Joel Cohen

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When 'Truth' May Not Be

Posted: 09/11/2013 12:53 pm

Hopefully, the Syria crisis will have been averted.

Still, whatever one's personal view of the president's Syria strategy, and in particular his decision to have first sought Congress's support for it, few questioned -- or even question now -- the passion and self-confidence of Secretary of State Kerry when he first presented this issue before the Senate Foreign Relations Committee. Put aside here Vladimir Putin calling Kerry a "liar" in testifying that the administration has the goods it says it has. To the administration and its supporters, Assad gassed his own people pure and simple, and Putin, whatever may now be his role in how this all turns out, is simply no friend of Americans -- Democrat or Republican. In reality, no one in the Congress seems to have questioned the president's proof of Assad's horrific act -- only the wisdom of bringing a war-weary United States into yet another nation's civil war. And obviously there is much public opinion against a strike.

Despite some subsequently changed views, Kerry was indeed magnificent in his advocacy, but did he -- and do many other witnesses from both sides of the aisle -- tell the whole truth, and nothing but? One of course can quarrel over whether the president was weak in seeking Congressional approval, or strong in acknowledging that there is a role for Congressional approval. We leave that, though, to the blogs, the talking heads and another day.

Still, consider Kerry's answer to the burning question that had been posed by some Committee members during his testimony: "What if the Congress votes 'no' to the authorization request? Would the president nonetheless go forward with the attack?" Kerry basically answered three different times, three different ways. One, "The president hasn't told me." Two, "I haven't asked the president." Three, "We're counting on getting the authorization."

Each variation was surely truthful. Secretary Kerry is as experienced as any witness who testifies before Congress. Inconceivable that he would come before the Senate and straight up lie under oath before the eyes of the whole world (any more than to suggest that Secretary Colin Powell would purposely have lied to the United Nations about WMDs in Iraq). Just imagine a sitting Secretary of State lying about a conversation had in the Oval Office (or wherever) -- when the president made him the administration's emissary to persuade the committee that he himself had chaired -- of the righteous wisdom of the proposed strike. Clearly then, to this writer at least, the words Kerry uttered were certainly true, at least literally. The president never told him what he would do if Congress were to say no.

Nonetheless, without casting aspersions on either the secretary or the president, can it possibly be that the secretary, when sent off to do battle with some hostile members of the loyal opposition, didn't know the answer to the critical question: "What if?" And if so, why didn't he? Could the president have dispatched his most senior diplomat into harm's way unarmed if asked, as he surely would be, the pivotal political question at issue?

Perhaps the two gifted former members of the Senate, Obama and Kerry, were simply counting on a protocol of institutional courtesy for a former distinguished committee chairman. Meaning that the Senators, hostile as some might be to the administration and its leader, simply wouldn't want to publicly embarrass the secretary by asking him the kind of follow-up questions that any third rate cross-examiner would invariably ask: "You mean, you left the White House simply not knowing?" Or, "You didn't get at least a wink and a nod from the president or White House counselors as to what he would do?" Or, if really going for the gusto, they might have asked, "Did you and the White House, or even the President himself, agree that you wouldn't ask -- or he wouldn't tell you -- in order to accord you the requisite deniability to give the Senate the literally truthful answer: 'I don't know'?" Not to mention, "Please tell us in detail the conversation you had with the president diagnosing his options in deciding to seek the Congress's approval."

We shall probably never know precisely what conversation took place just before the president dispatched the nation's chief diplomat to wage "political" combat. And maybe only a criminal lawyer's disputatious mind -- perhaps even a cynical obsession based on his experience with the reality of how things often get done -- might be troubled by the prospect of a public figure engaging in a forensic exercise that represents something less than the punctilio of truth, particularly when so much is at stake. It is somewhat reminiscent of the reflection by former Attorney General Michael Mukasey over his testimony during his own Senate confirmation hearing addressing whether water boarding constituted torture: For Mukasey, he had chosen to give testimony "constabulary style," giving answers "aimed at precision without achieving clarity."

True, the U.S. Supreme Court, 40 years ago, in U.S. v. Bronston, held that a perjury charge could not be sustained when a grand jury witness's answer was "literally" accurate, even though what he was communicating by his answers certainly was not. The Court said that it was the prosecutor's own duty to tie the witness down and elicit the true and correct facts by asking follow up, more exacting questions. Likewise, it is also true that new statutes that charge the separate crime of obstruction of justice are less demanding when witnesses skirt the truth by giving deliberately dissembling testimony.

Again, this piece is not about a potential criminal prosecution -- Secretary Kerry, a former prosecutor himself, is an honorable public servant, far too smart for any of that. And we surely don't believe that one should -- to use the term du jour -- "degrade" the policy Kerry advocated simply because he should have given a better, likely more honest, answer -- such as "The situation is dynamic, changing every minute. The president has decided not to make the final decision he alone must make until the last possible moment, when all the facts and nuances have been finally considered."

The realities of life, though, aren't always like that. We sometimes simply have to do the best we can under trying circumstances, at day's end hoping for the best. Truth is often like that too -- sometimes something less than absolute. For me at least, Secretary Kerry told the truth, even if it may not have been "absolute." Given the senators' reasoned choice to not have asked the probative, exacting follow-up questions which might have led to a precise answer, unless and until the memoirs are finally published and actually deal with this question, we shall never really know with absolute certainty.

 
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