Monday, November 15, 2004

Knowingly or With Knowledge – Willful Ignorance and Culpability

One of the early concepts we are taught in criminal law is that a person who knowingly causes a particular result or knowingly engages in specified conduct is commonly said to have “intended” the harmful result or conduct. Often times actual knowledge of a material fact – an attendant circumstance – is a required element of an offense.

Today, most Americans (I would argue) fail to truly inquire, or research, or seek to look beyond that which they are told by the media machine, as no doubt plumbing the depths of what is actually taking place before their very eyes would require a journey to the apex of fact and fiction – a place where faith ends and reality begins – a place that is now too hot to handle for most Americans; a place that has given America today an almost Twilight Zone feel to it. Unfortunately, I don’t think Rod Serling, cigarette in hand, is going to come out of the dark and tell us not to worry.

Certain facts defy faith and require reason to comprehend; the budget deficit is exploding, the Dollar has lost nearly half its strength against the Euro over the past 4 years, we have more not less terrorism in the world, Iraq did not welcome us with roses, trillions in tax cuts during a war is not economic common-sense, and to believe that things are awesome when the situation says otherwise - is to be by choice willfully ignorant. It takes a lot of energy to ignore facts and replace it with a reality filled with faith and fantasy, but upwards of 58 million people on November 2nd did precisely that.

When a person is said to be guilty of “willful blindness” or “deliberate ignorance” it means that the actor (the person) was aware of a high probability of the fact(s) in question being true, and he deliberately fails to investigate in order to avoid confirmation of the fact. It is a simple legal concept and was applied, in a round about way, to implicate everyone from high-ranking Nazi officials to the average German citizen as being duplicitous in the Holocaust. For decades we heard Germans say, “Oh, but we didn’t know. If only we would have known, we would have done something about it…” This ranked just ahead of the “I was just following orders” defense.

A person does not have to take action to be guilty of willful blindness, his culpability can be based on his failure to make a simple inquiry to confirm or dismiss his suspicions. And that, sadly, is what we have here in America today. I know lots of otherwise decent people who want nothing to do with “anything anti-Bush.” Their comment is often a simple “Oh, that’s anti-Bush. I’m a patriot! I support Bush and our troops…” and back their heads go into the sand.

The Ostrich Instruction

“Supposedly, real ostriches do not just fail to follow through on their suspicions of bad things. They are not merely careless birds. They bury their heads in the sand so that they will not see or hear bad things. They deliberately avoid acquiring unpleasant knowledge. The ostrich instruction is designed for cases in which there is evidence that the defendant, knowing or strongly suspecting that he is involved in shady dealings, and takes steps to be sure that he does not acquire full or exact knowledge…” (citation omitted – probably out of Dressler on Criminal Law)

From the President down the notion “We had no-knowledge” flows like water from a spring - “Well, we didn’t know about this, and if we had known we would have…”. Whether it is Iraq, the massive mind blowing surplus turned into a you-will-never-ever-be-able-to-pay-this-back deficit, the entire 9/11 debacle, oh the list is endless. Denial is nothing new for people or governments, but such denial as ours in the face of so much overwhelming evidence that speaks of our demise means this country has long crossed into the borders of willful ignorance – and that, by the way, is not a good thing.

"My parents were immigrants," Hersh said. "They came here because America meant something…the Statue of Liberty and all that stuff, because America always was this bastion of morality and integrity and a place for a fresh start. And it's right in front of us, not hidden, that they've taken this away from us."


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