Obama's Defense: "You Say Guilt By Association"," or YSGBA

In previous postings I have complained, as have many others, that Senator Obama's loyalty to his pastor, the Reverend Dr. Jeremiah A. Wright, Jr., reflects badly on his fitness for high office. This pastor is on record asking God to "damn America." He is on record as giving high praise to the notorious Minister Farrakhan. And this pastor has reprinted in his "pastor's column," with his specific endorsement, an op-ed piece by a leader of Hamas. (For a description of the virulent, radical anti-Semitism of Hamas, see the New York Times, April 1, 2008). All this, many of us suggest, reflects on Obama, no matter how many or how few of the offending sermons he actually heard first hand.

But those who criticize Barak Obama in this manner are accused, by Obama's friends, of using "guilt by association." We are told that this criterion is illogical and abusive, if not "McCarthyite." So "You Say Guilt by Association," or YSGBA, is presented as a self-contained, self-justifying defense of Obama.

It is interesting that "guilt by association" is not a phrase that is ever used by those who presumably believe in it. Like other such polemical expressions (see, for instance, the article by Klehr and Haynes on "premature anti-Fascist"), it is used by people who accuse others of advocating ideas that they do not, in fact, either advocate or hold.

What can be said about this bugaboo, mostly used by the Left, of "guilt by association" ?

Eliot Spitzer and the Mafia

A few days ago the New York Times ran a story, very prominently on the front page of its Metro Section, entitled "Call Girl Linked to Spitzer Knew Reputed Mob Affiliate." The story was murky but went on for a few hundred words. It seems that a certain Mr. Anthony Scibelli "who the authorities contend is an associate of organized crime" had an acquaintanceship or relationship (of an undisclosed nature) with Ms. Ashley Alexandra Dupré, the professional lady with whom Spitzer is said to have consorted in Washington.

So here it is. Our ex-governor, in addition to all his other sins and problems, seems related, by no more than three or four degrees (depending how you count) to, yes, to the dreaded Mafia.

What are we to make of this story ? Let's try a thought experiment. Let's say that Spitzer, instead of being the relatively unideological figure that he in fact is, were a figure beloved by the Left. In that case we could imagine a "progressive" reaction to the Times's treatment:

This is a clear case of guilt by association ! The New York Times, for reasons best known to itself, sees fit to smear a progressive leader. True, Mr. Spitzer knows Ms. Dupré. But then it is alleged that Ms. Dupré knows a certain Mr. Scibelli (note that there is no proof that she does), and it's also alleged that Mr. Scibelli "is an associate of organized crime" (no proof of that either). But let's assume, for the sake of argument, that Ms. Dupré is indeed acquainted with Mr. Scibelli, and let's assume further, for the sake of argument, that Mr. Scibelli is a Mafioso. But how does that affect Spitzer ? Mr. Spitzer has had dealings with Ms. Dupré and Ms. Dupré knows Mr. Scibelli. How can that make Mr. Spitzer a Mafioso, except by the fallacious, reactionary, malicious reasoning known as Guilt by Association. Outrageous.

Ambiguities of "Guilt"

This argument in defense of Spitzer -- "You Say Guilt by Association" (YSGBA) -- seems to have validity, at least on the surface. But it will not stand closer examination. The problem lies in what is formally known as the fallacy of equivocation, that is "the misleading use of a word [or words] with more than one meaning (by glossing over which meaning is intended at a particular time)" (Wikipedia). Both "guilt" and "association" are deeply ambiguous.

Let us start with "guilt."

In the context of Anglo-American criminal jurisprudence, a criminal defendant cannot be found "guilty" except by "proof beyond reasonable doubt." This standard, proof beyond a reasonable doubt, helps to define the very meaning of "guilt" in this context. It is a very high standard for the prosecution, and in effect allows the defendant to benefit from all (reasonable) doubts in the case.

In going about our business in matters not related to crime, in the courts or elsewhere, we do not and cannot be guided by this very rigid, one-sided standard. In civil law cases, for instance, the ordinary standard is much lower, viz. ""balance of probabilities," sometimes termed "preponderance of evidence." (In certain cases an issue is decided by "clear and convincing evidence," which is more demanding than "balance of probabilities," but not as stringent as "proof beyond a reasonable doubt.") So it is clear that whatever "guilt" or wrongdoing may mean outside the realm of the criminal law, it is something quite different from criminal guilt.

Moreover, there is yet another standard that is particularly relevant to a discussion of the behavior of politicians and public servants. If a judge appears to have a conflict of interest, for example, he must recuse himself from the case. Justice not only needs to be done, it must also seen, or appear, to be done. An appearance of impropriety by a public official, whether or not there is a substance of impropriety, cannot be tolerated. Professor Deborah Hellman, among others, has shown that there are good reasons indeed for this rule.

It would certainly appear that Spitzer's second-hand relationship with organized crime is of legitimate interest to the public, as, indeed, is Obama's second-hand relationship with organized anti-Semitism. In either case, there is at least the appearance of something gone awry. This something, absent a criminal prosecution, need not be proven "beyond all reasonable doubt."

The YSGBA defense, then, must fall because of the ambiguity of its use of "guilt." It alleges that those who accuse Obama (or Spitzer) do not use the strict standards of criminal guilt-finding when, in fact, the accusations are not related to crime (Of course there may also be criminal aspects to the Spitzer case, but that is not the issue here.)

The other term of the YSGBA defense, "association," is similarly vague.

Ambiguities of "Association"

We may be "associated" with others in a great variety of ways. When I take a subway train to the Borough of Manhattan, I sit with many others in a subway car, associated with them for the duration of my trip. Some of these fellow-travelers may be felons, but, obviously, this does not make me a felon. The proponents of the YSBGA defense suggest that since some types of association are totally innocent in this way, all association is innocent.

We know, of course, that some association is far from innocent. The criminal law itself recognizes criminal association of various sorts. In addition to provisions dealing with aiding and abetting, there is also the law of conspiracy, which holds a conspirator in a crime to be as guilty as the actual perpetrator.

But beyond the domain of law, our ordinary experience teaches us that the company we keep helps to define who we are. A person who habitually associates with known criminals, for example, is rightfully suspect. My Jewish prayer book enjoins me to ask God every morning to "deliver me this day, and every day, from arrogant men and from arrogance, from a bad man, from a bad companion and from a bad neighbor..." [My thanks to my nephew Butchie for pointing me to this]. The Mishna (Kelim 12,12) tells us that "Who consorts with the unclean becomes himself unclean." The New Testament concurs: "Bad company corrupts good morals" (I Corinthians 15:33).

Conclusion

When we complain about Obama's associations, we do not allege that these associations make him a criminal. We are not bound by a standard of "truth beyond a reasonable doubt." Nor is all association innocent. Some is deeply troubling. We are right in scrutinizing the associations of those who would be President. And Barack Obama's associations are not reassuring.