Monday, January 26, 2009


Truthout publishes a piece Matt Yglesias wrote for ‘The American Prospect’, entitled “Getting Rid of the ‘War On Terror’ Mindset”. His excellent point stems from Obama’s campaign comment that he wanted to “end the mindset that got us into the war in the first place”.

It is a consummation devoutly to be wished.

There has been much discussion of whether the ‘war’ on terror is actually a war at all, in any sense recognizable to Western diplomacy and law, and all of that needn’t be repeated here. Suffice it to say that the Westphalian ‘genius’ as it was refined over the years was to assign a limiting ‘shape’ to fighting: it had to be between sovereign nations, had to be formally declared, conducted only among official military forces, and waged by official troops (preferably in uniform) who were readily identifiable.

Thus, the thing could be contained in time and space. It would have a beginning (when a ruling authority ‘declared’ it) and it would have an end (when the warring ruling authorities officially declared hostilities to be at an end). The fighting would not overflow like a flood to engulf entire populations and their livelihood, but rather would be confined – as much as the thing can be confined – to those persons officially engaged in it.

It was an improvement over the Catholic Church’s not insignificant Medieval efforts to limit the whole mess by instituting a staggering number of religious feast-days on which ‘fighting’ was not allowed; a ruler, petty or great, would have to sit down and perform complex calculations like a Babylonian astrologer to figure out just how much fighting could be gotten done and just when it could and could not be conducted; it was not a radical Gospel ‘abolition’ of war, but it was an effort to curb what seemed to be, like sex, an immutable characteristic of the human species.

Clearly, a war against a congeries of entities, none of them a sovereign government, in pursuit of the eradication of a tactic – terrorism – that is as nebulous as fog if not as perennial as sex, is not militarily advisable. Such a war can neither be shaped or contained, and such profound complications, on top of the usual elements comprising the commanders’ ancient nemesis – the fog of war – pretty much guarantee that no such military undertaking will achieve successful closure. Which would be an earthly incarnation of hell, unless some leader actually wanted to institute just such an international Hobbesian state of affairs.

You could date yourself by exclaiming that once they had outgrown the fatuous phantasms of ‘world revolution’ and ‘permanent revolution’ (and they did that pretty early on) then not even the Commies wanted such a dangerous condition to exist. You could, those evil madmen shrewdly figured, wind up having the whole thing blow up in your face, and the cost to yourself might be many times greater than any good your hapless soldiery might achieve when they started shooting where you told them to. Or whom you told them to. Or whomever happened to wander into their sights.

The whole ‘war’ thing as a useful conceptual tool for organizing an effective and accurate grasp of reality, of your situation, has always been dubious. William James wished for “the moral equivalent of war” as a way for the post-Civil War generations to prove themselves without shedding the rivers of blood that the Civil War generation had spilled. Oliver Wendell Holmes , Jr., an officer in that war who lived long enough to be a Justice of the Supreme Court in FDR’s first administration, was always holding forth on how the lives of his generation had, in their youth, “been touched by fire”. He didn’t consider war a good thing, no jingo like Teddy Roosevelt he (Teddy was a child during the Civil War, and like many of his era, never quite got over it). But Holmes was convinced that, if you survived it, the experience of war made a serious adult out of you, and he meant that in the best possible sense.

War can do that, if you can not only ‘survive’ it physically, but actually metabolize emotionally and psychologically and spiritually the lessons that come hurtling at you in blood, terror, boredom, frustration, and loss. Not everybody did. Not everybody can. We are seeing that today as the ‘unbloody’ casualties of the willfully-started frakfest in the East start to come home.

Not half a century after William James (who also managed to miss the Civil War though he was old enough to go) uttered his hope and desire, We experienced the first somewhat metaphorical ‘war’, the Cold War. It wasn’t a war conducted by vast military forces conducting hostile operations against each other, but it was close enough in purpose and time to an actual war (World War Two) that We could see the connection. Nonetheless, it gave rise to much ‘mischief’, as the US government began to exercise a war-time-ish proclivity for secrecy and extensive grasping for powers overtly and covertly and as Our politics started to bend a bit under the strain, and increasingly so as the years went on. And then came Vietnam.

In the middle of that frakfest, desperate to mobilize a now-doubly divided American citizenry in order to support his domestic embrace of ‘civil rights, LBJ declared a War on Poverty; although not a ‘real’ war, it would seek to get the citizenry used to the government deploying all manner of extended powers domestically. A little dicey, maybe, but in a good cause – that ‘War’ on Poverty.

It was much easier, then, for Reagan to declare a ‘War’ on Drugs. And that ‘war’ was quickly accompanied by all sorts of expansions in police power – not all of them constitutional, and almost all of them setting Us on a course to a more police-ified American experience (while, at the same time, the police themselves were going gaga over everything military: the hardware, the weapons, the vehicles, the uniforms, the haircuts, and the attitude of the cocky combat soldier).

So I would say that the current mess in the East is not the first ‘war’ since Vietnam to have caused Us far more damage than any good it achieved.

Now comes the feminist advocacy (by which I do not at all intend or imply that it speaks for all actual women). They are using this opportunity to surf on or piggyback on a topic of significant national interest: they demand that America “end torture, end domestic violence”. Domestic violence, We are meant to mindlessly conclude, ‘equals’ torture.

The article is by Rhonda Copelon, originally published in ‘On The Issues Magazine’ but reprinted on Truthout.

“When one compares what is done to a woman in an advanced domestic battering cycle and to prisoners subjected to torture, the situations are frighteningly similar.” So it opens.

A couple of thoughts right off the bat.

It is wise to take a lesson from Our Soviet counterparts when that long-suffering, bethumpt citizenry had to open the pages of ‘Pravda’ or ‘Izvestia’ or any of half-a-hundred other media sources: read what isn’t there.

I recall just recently reading a newspaper article about sexual abuse on college campuses. It’s a fraught subject since unlike ‘children’, college students cannot reliably be presumed to be non-sexual. As in Iraq – by the most amazing coincidence – it’s hard to tell who’s guilty, who’s not, and of what.

Interviewing one of the now-ubiquitous paid counselors who are on the college staff to address issues of sexual misadventure, as to how the financial downturn might affect funding for the program, the reporter notes that the counselor is confident because there is a great deal of activity (always of frightening and alarming proportions) on the campus that “can be construed as rape”.

The phrase caught my Soviet eye. Why not just say “rape”? That there is a great deal of rape on the campus? Why toss in the extra stuff about “can be construed as”? Why waste the ink and the space? The answer, of course, is that nowadays a lot of stuff that you wouldn’t at all think of as rape “can be construed as rape”. Somehow the college regulations – and the law – define the term ‘rape’ to include a lot of stuff that isn’t.

But it helps keep the numbers up. And the fear. And serves to lull folks into letting a lot of expanded police activity by: ‘Well, if there’s that many rapes, then … just until they get this situation under control …’ That sort of thing. Sort of like the Patriot Act, come to think of it – where it is legally and officially a ‘terrorist’ act (and a federal felony) to throw a soda can on the cabin floor to make a point. Imagine if they still served rubber chicken on planes!

And, recalling what one ‘expert’ said when asked to justify her figures of “5 million green jobs” that a certain initiative would create, she couldn’t, saying that “Honestly, it’s just to inspire people.” Or, in the case of the assorted ‘violence’ lobbies, to inspire folks with fear and outrage … at the huge numbers of … and so on and so forth.

Why say, then, “an advanced domestic battering cycle”? Why not just say “battering”? That should do the trick, especially now that one can be legally “battered” by not being talked to on a long-distance phone call. Why “an advanced domestic battering cycle”?

It sounds scientific and ‘expert’, first of all. And that, in turn, gives the impression that the whole thing is a scientific phenomenon whose laws are known to ‘science’ and – with enough funding and friendly legislation – can be ‘solved’. And that’s always nice, whether you’re a lobbyist for Boeing or an ‘advocate’ for this or that.

And yet it’s suitably vague. What would a non-advanced cycle look like? How, again, is ‘battering’ being defined here? And how many ‘advanced’ cases of this ‘cycle’ are there?

“How would the world be different for women if domestic violence were treated as torture or as cruel, inhuman or degrading treatment?” This starts to remind me of Teddy Kennedy at the recent Democratic convention, going on about nothing but “the dream”. Assault, even in the domestic setting, is already a crime, and has been for quite some time. Why would it need to be metaphorically “treated” (and what does that even mean – in the press, in therapeutic practice, in law?) as torture when it’s already a crime as it is? What, pray, is the frakking point?

And although it’s a lawyer-ish observation, isn’t the phrase “cruel, human and degrading treatment” a legal descriptor applicable to the acts of government entities in regard to prisoners, detainees, or persons otherwise deprived of their liberties under the colorable legal authority possessed by said entity? Why is the author introducing it into the area of domestic-violence (however that is defined)?

She goes on to propose that it may now be time to “understand domestic violence as a form of torture” because it is “a violation of human rights in the home”.

First, why “understand” domestic violence as anything other than what it already is, and other than the very elements of it that are already a crime and justify state intervention, legal or custodial or therapeutic? What purpose useful to the common weal is being served?

Second, this is a clear example of the ever-increasing justification for government intrusion into the home and the family – and this starts to border on the Soviet in its expansiveness. If the weight and urgency of ‘human rights violations’ are going to be brought to bear on family problems then this is a baaad idea. The actions it seeks to address, as noted above, are already covered in criminal and civil law.

Further, ‘torture’ is fundamentally understood as involving a person who is taken against his or her will from a safe situation and placed in a situation of danger where great and unwanted pain is inflicted. The domestic situation, where it is excruciatingly hard to accurately unravel the elements of coercion and either active cooperation or passive acquiescence in the infliction of pain … is precisely not akin to the key element of the ‘torture’ scenario.

Granted, this has been a problem for the ‘domestic violence’ advocacies from the beginning. Unlike a stranger kidnapped by a perpetrator and then assaulted in whatever way(s), the domestic-violence scenario presents with much more complex assessment problems, not the least of which is the honest and accurate determination of the dynamics created by each member of the dyad.

The advocacy solution to that problem, as so often, has been to attempt (often successfully) to sidestep or overrun the daunting assessment problems and simply demand ‘action’, insisting that ‘assessment’ disrespects the pain of the erstwhile victim; that any hesitation for any reason whatsoever constitutes the state’s ‘complicity’ in the crime; and that the burden of proof should lie with the accused (i.e. the male, at least until the advocacy, essentially feminist, was forced to make common cause with gay advocacies concerned about ‘battered partner’ syndrome among their own constituencies). And since any ‘investigation’ would only disrespect the pain of the victim, then one doesn’t have to be a Supreme Court Justice to see what the justicial outcome, granted the strictures demanded by the advocacy, is going to have to be. Neat. Wheeeee!

There had been, We are then informed, “a tenacious worldwide epidemic of gender violence”. Since feminist doctrine – as best it has been codified – presumes that ‘gender violence’ (however defined) has been going on since the dawn of time, then it raises far more questions than it solves to call it ‘tenacious’; ‘perennial’, perhaps, would be a more accurate descriptor here, but that too raises far more questions, and interesting ones, than it resolves.

And the very concept of ‘epidemic’ indicates some extraordinary, unusual, physiological outbreak. If this sort of thing has been going on for as long as the species has existed, then how can it be an epidemic? By definition, a several-hundred-thousand year-old ‘epidemic’ is a contradiction. Why confuse an already fraught matter with – as the ancient Chinese might have said – ‘unrectified Names’? It seems professionally irresponsible, if nothing worse.

She goes on to note that “domestic anti-violence movements transformed what had been considered ‘private’ into ‘public’”. Precisely. And with ‘public’ you get the government and its already over-gorged police power. And at this point, just what more can legislation achieve? It’s already a crime. Are We going to authorize the government to ‘do whatever it takes’ to ‘stamp it out’? Look what that sort of philosophy has achieved in the matters of drugs and sex and terrorism … is that what these advocacies are pressuring Us to get into all over again?

And, she points out, examples of wartime atrocities are applicable. This kind of gambit goes back at least to 1965 and Betty Friedan in her book ‘The Feminine Mystique’. We may recall that Friedan took an observation of Bruno Bettelheim’s about the psychology of concentration-camp inmates (how some of them became baffled and repressed, apparently muzzling or muffling their own human emotional responses to the horrors of incarceration in the camps) and she observed, with a modest conceptual applicability, that the modern American housewife (of that era) evinced, in Friedan’s opinion, some of the same symptoms Bettelheim and Primo Levi noted in the inmates at Dachau.

Well. Conceptually, it was an interesting and legitimate potential connection, and well worth some careful looking. But it was the Sixties, the nascent Advocacies were just starting to copy the Israeli playbook (in the matter of the Nazi murders of the Jewish populations of Europe) that the Israelis had taken sort of as spoils of war from Goebbels’ brilliant modus operandi, and the old American weakness for thinking that if something might be ‘good’ than to get it ‘fast’ would make it even better, was agitating the imaginations of a lot of voters.

Suddenly, the ‘home’ was a concentration camp, the women were ‘the Jews’, and the ‘men’ were the Nazis. And the vote-desperate Democrats sort of said Yes to it all, hoping that they could smooth everything out as time went on. And, as is said at Santa Anita, they were off! And here We are. “Off” don’t hardly cover it – what We are now.

The vision inspired by that set of images was, for a brief shining moment back then, seen for the almost repulsive exaggeration that it was: that the American home, the thing everybody dreamed of having in the ‘30s and ‘40s and that a lot of folks managed to get by the ‘50s and early ‘60s, was a concentration camp, the picket fence the equivalent of the electric wire and guard-house and dog-patrolled perimeter; that the ‘man’ was a Nazi guard, the vet who got back from the war in more or less one piece and started a family and managed to provide for it; that the house itself – with all the appliances and the food and drink in the fridge, the phone and the TV, the car in the garage – was the equivalent of Dachau’s dank, death-stalked charnel houses. It was more than an exaggeration. It was obscene.

Copelon goes on: “The next step in this legal and cultural revolution [oy, that word again] is to treat gender violence as torture”. Her thinking appears to be that if a government fails to take steps against torture that it knows is going on within its borders, then in modern international human rights law that government and its agents become complicit in the torture. Now, she gallops on, if ‘we’ can apply this law to her own advocacy-topic, domestic violence, then if the US government doesn’t ‘stop’ the domestic violence as thoroughly and peremptorily as international law requires governments to stamp out torture, then the US judges, cops, prosecutors, and pols will all be war criminals. Wheeeee!

Is this a bit … ummmm … overreaching? She figured We’d ask: “Violence in intimate relationships is no less heinous and damaging than violence in official prisons and interrogation ‘booths’”. We can frakking hope that Homeland Security doesn’t read that.

But in case you were beginning to wonder, she’s thought this through: “Torture is defined internationally as involving a severe infliction of physical or mental suffering, which is intentional and not accidental, and is done not only to extract information, but also for such purposes as punishment, coercion, intimidation or discrimination of any kind”. So, ya see, that’s what the (Nazi) men do to the (Jewish inmates) women in the (concentration camp) home. It all works out neatly on the board.

This strikes me as a prime example of what’s gone wrong and is still going wrong in American law. It’s a board exercise, like kids playing Gotcha with tendentious little verbal constructions around the breakfast table.

A trained lawyer would point out the many ways in which violence in the domestic setting is not formally torture at all; that Copelon is trying to criminalize something that is already a criminal offense; and that, simply in terms of judicial and even political prudence, it would be deployed in domestic law only with the greatest danger – especially in terms of the possibility that it would a) undermine the legitimacy of law and b) undermine the credibility of the government itself.

And given that this is – for all practical purposes – a gender-specific sort of thing, then such ‘understanding’ of the law and its enforcement would effectively make it the official policy of the United States government that men were at great liability for being declared torturers, and the government thus required to deploy itself against almost one-half the civil population. Not that the Dems haven’t wound up sort of doing this already, but do they really want to make it official policy backed by the weight of international law?

Copelon surges: To declare domestic-violence torture “signals to battered women or partners that this violence is not their fault or their shame, but someone else’s very serious criminal act”. But the act is already criminal and who in this country after 25 years of agitation doesn’t know it? This is a replay – on an almost ludicrous level – of the arguments made decades ago for the purpose of ‘raising awareness’ about ‘domestic violence’; have the changes made since then not-worked? If so, then tell Us that and let some serious deliberation get started on how to address the problem more effectively (with whatever monies are left in the national till). And if the original programs did ‘work’, then what is all this about ‘torture’?

Or is she thinking that ‘laws’ are best made just to ‘signal’ ‘encouragement’ or ‘reassurance’? Has she no concept of just what American law is supposed to do and how the perennial problem of government over-reach was an abiding fear – hardly unjustified – of the Founders?

I got to the end of the article thinking that Oy, she could stand a night-school course in Introduction to Law somewhere.

She is, it turns out, “professor of law and director of the International Women’s Human Rights Law Clinic (IWHR) at the City University of New York (CUNY) Law School".

As Mark Twain would say: “So there it was.”

I was driven forthwith to my bookshelves to double-check something I recalled reading a quarter-century ago. In 1982, in her book “In A Different Voice”, the psychologist Carol Gilligan worked from several angles the idea that ‘women’ do not deal in ‘abstractions’ but rather in ‘personal relationships’, not in logic but in connectivity and connections – they process information differently, using a different conceptual paradigm or heuristic. For women, it struck me back then, it’s all personal.

I remember thinking back then that if Gilligan was right, then whatever else feminism was going to do to the country, it was going to raise hell with the law. First, the ‘abstraction’ and conceptual precision and carefulness and logic and rationality of law were precisely what distinguished it from ‘victor’s justice’ – it was not motivated by the heat of emotions, especially of revenge or ressentiment, nor was it driven by fear, but rather sought to develop a clear position that was comprehensible to all the citizenry, was ‘fair’ and clearly appeared so, and did not demonstrate the type of favoritism that is the death of its legitimacy in a polity.

Then came Oprah and her cohorts, ‘victim’ stories, ‘repressed memories’, and the long panoply of corrosive inroads – ‘reforms’ – in the hard-won structures of evidentiary rules and statutes of limitations, all of which had been put in place after much misadventure precisely to keep at bay both the unsleeping, voracious police-power of governments monarchical and otherwise, and the unlovely tendency of large groups of humans to stampede as if a herd.

I get the verrrry disturbing image of Copelon and her sorority (male and female) sitting around the faculty lounge, having coffee as if holding a Kaffeeklatsch at an old Viennese cafe, and excitiedly stringing these things along - setting each other off like a bunch of tuning forks vibrating together, and then rushing forth to call their pandering pols or their advocacy PR flaks. Against American culture and Law they are waging, as it were, a Klatschkrieg.* As well as - to repeat - a revolution. Oy. And gack.

Copelon’s method, and I imagine it to be illustrative of the ‘feminist’ approach to law, is to limn a frightening situation (immune to analysis or skeptical or even prudential evaluation), then paint a picture of lovely and desirable what-ifs, and then to construct, out of hugely selectively chosen snippets and factoids from here and there, a legal rationale – you should pardon the expression – and ‘strategy’ (ditto) that would justify the demanded ‘reform’ . This is law-making by fantasy, supported not only by ‘story’, but by considering only a best-case outcome ‘story’ that ignores all the possible dangers and consequences. Again, by amazing coincidence, this is precisely how the neocons ‘strategized’ the Iraq invasion.

At this point, feminism (not to be equated with ‘women’) has riven the Democratic Party over the matter of abortion-on-demand, insisting now that it even be declared a positive social good. But it has also pulled the government down further toward that level of functioning which precisely the Founders had been seeking so urgently to climb beyond: the unboundaried police power of the government supported by the unboundaried emotions of the citizenry. This constitutes a dangerous regression.

When it comes to these alarums let Us all take Our example from the former Soviet citizenry and not be stampeded. Not only do ‘facts not matter’ for many of these advocates, but they appear to be completely unaware of the dragons they will unloose, or are witless enough to think that the beasts can be controlled, or ‘baptized’ into their ‘good’ cause.

It also strikes me that this feminist (and is it genuinely female or feminine?) emphasis on ‘intuition’ and the ‘feeling of rightness’ rather than of deliberation and ‘abstraction’ and ‘logic’ and ‘reason’ is remarkably similar to the now-former President Bush’s fabled reliance on his ‘gut’ rather than on the almost-unmanly emphasis on analysis and careful assessment. From the ‘base’ of the Democratic Left there is a profound synergy with the worst and most anti-rational excesses of the chimpish extremes on the Right.

And further along that line, it thus seems that We are in the hands – both the Right and the Left hand, as it were – of an anti-rational dynamic, hardly characteristic of either individual maturity or civilizational gravitas, that constitutes a profound regression from the achievements – incomplete though they may be – of the West’s cultural contributions to humanity’s development. This is not good.

And it is clear that this approach is now being taught, by ‘professors’, at major law schools. And has been for quite a few years, meaning that graduates so (de-)formed are now major attorneys, legislators, and judges at all levels.

And that this type of 'professional' and 'elite' legal 'thinking' is precisely what is being passed off to hardly deliberative legislators and pols as the 'best' thinking on the subject. And then laws are made, either based ont he legislators' ignorance or on their desire merely to have some 'scientific' and 'professional' 'cover' when they pass the egregious demands put before them by political Identitites to which they pander. A bad law here, a bad law there, adds up to a corruption of the polity after a while. As We are now seeing.

And let Us not forget that it was the assertion of John Rawls, so-called philosopher-extraordinaire, that ‘elites’ trained in law – including attorneys and judges at all levels – were the best group for implementing his visions of what is best in this country. Congress and even the constitutional rights were, in Rawls’s view, ‘fungible’, as the Pentagoons might say.

So whatever is going on – and has been going for some decades – in the nation’s law schools may not be helping matters at all, and indeed may be contributing precisely to the degradation and debasement of the American ethos as We are now seeing that decline take place before Our eyes.

If We ever want to clean house, We shall first have to keep the house in Our possession. These advocates are betting the farm that they know just what they’re doing and that the rest of Us ‘just don’t get it’. After what We’ve recently seen in Iraq and Wall Street, I would be very, very leery of those ‘elites’ who bray that they know just what to do and have everything under control. We are enroute to doing to Ourselves what We allowed to be done to Iraq. This is more than a hot-irony; it is proof of the existence of God.

When the full consequences of their folly become unavoidably clear, they’ll be the first ones to insist that the law not seek ‘revenge’, that juries not engage in ‘witch hunts’, and that since they meant well, they should just be allowed to ‘move on’ with their lives. Yah. And Mussolini just wanted Hitler to have a car drive him back to Predappio, where he would live out his sunny golden years as an avuncular, benign, local sage. Yah. Nuts.


* It's worth taking a look at Daniel Heleniak, Esq.'s 'Domestic Violence Courts in America',on Counterpunch from 10/13/07 here.

** Just to get a sense of what's actually going on in Domestic Violence and how it's distorting American law and jurisprudence, you may want to check the website of the American Coalition for Fathers and Children here.

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