The Duelfer Report II - The Hindsight Rule
I've been thinking about analogies to the kind of second-guessing of President Bush's decision to invade Iraq we're now seeing, looking for them in my own field, the law. In trust law, there is a basic precept governing how trustees' investment decisions should be judged known as the "Hindsight Rule." The Hindsight Rule is as follows:
In judging the reasonableness of the trustee’s investments, the court will not be affected by hindsight. It will endeavor to place itself in the position of the trustee at the time he made the investment and not to charge him with knowledge of what has happened since the investment.
See Bogert, Trusts and Trustees (3d ed.) (2000), § 612 at 60.
The conduct of the trustee in making an investment is to be judged as of the time when he made it and not as of some later time…. A wisdom developed after an event, and having it and its consequences as a source, is not a fair standard to apply.
See William F. Fratcher, Scott on Trusts (1987), § 227 at 433.
If we say, by analogy, that President Bush was entrusted with the security of America, and was acting as a trustee at the time when he decided to invade Iraq, the question becomes, based on the information he knew then, was the action he took prudent and reasonable. A court of law would obviously say, "yes." What the media and the Democrats are trying to do is to apply "a wisdom developed after the event, and having its consequences as its source." It's patently unfair, and no court would let them do that.
Moreover, it is also a hindsight that is dependent on the "consequences" of the President's actions. If we hadn't gone into Iraq, in the best case we wouldn't know, even now, that Saddam didn't have weapons of mass destruction. In the worst case, the French and Russians would have conspired to get sanctions lifted, and Saddam would have begun developing them and perhaps by now would, in fact, have reconstituted them.
In judging the reasonableness of the trustee’s investments, the court will not be affected by hindsight. It will endeavor to place itself in the position of the trustee at the time he made the investment and not to charge him with knowledge of what has happened since the investment.
See Bogert, Trusts and Trustees (3d ed.) (2000), § 612 at 60.
The conduct of the trustee in making an investment is to be judged as of the time when he made it and not as of some later time…. A wisdom developed after an event, and having it and its consequences as a source, is not a fair standard to apply.
See William F. Fratcher, Scott on Trusts (1987), § 227 at 433.
If we say, by analogy, that President Bush was entrusted with the security of America, and was acting as a trustee at the time when he decided to invade Iraq, the question becomes, based on the information he knew then, was the action he took prudent and reasonable. A court of law would obviously say, "yes." What the media and the Democrats are trying to do is to apply "a wisdom developed after the event, and having its consequences as its source." It's patently unfair, and no court would let them do that.
Moreover, it is also a hindsight that is dependent on the "consequences" of the President's actions. If we hadn't gone into Iraq, in the best case we wouldn't know, even now, that Saddam didn't have weapons of mass destruction. In the worst case, the French and Russians would have conspired to get sanctions lifted, and Saddam would have begun developing them and perhaps by now would, in fact, have reconstituted them.
posted by PDB at 2:33 PM
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