Saturday, April 25, 2009

TORTURE OUTRAGE

I’m very careful with the word “outrage” – it’s reely reely been overworked this past forty years.

It’s not healthy for folks to be trying to go through their day in a permanent state of outrage. You can get distracted. Distracted from everything else going on around you, focusing instead on the one thing about which you are outraged. Focusing to the point of obsession. *

And that has unhealthy effects on societal life.

It also has unhealthy effects on the self. You can – as they used to say in the Pacific War – “get pulled down to the deck”. Aircraft carriers not only launched attack aircraft in waves; when operating near the enemy, they also kept a passel of defensive aircraft circling high above them – called the combat air patrol (CAP). The task of the CAP was to intercept enemy aircraft high above and relatively far away, bringing them down or driving them off before they got with damaging-range of the carrier itself. But if enemy aircraft got in close enough, and went low to drop torpedoes or dived with bombs, then the CAP would have to leave its high altitude and follow them “down to the deck”, close to the surface of the sea and to the ship itself.

In a self, one is always – ideally speaking – trying to operate, as the social workers are fond of putting it, ‘at the higher end of one’s range’. That means, at the higher range of one’s possibilities, operating beyond and above one’s more primal and less-evolved emotions and instinct-controlled attitudes.

This has become a lost art in the past forty years. The Hippies and ‘love children’ felt that the whole idea was off: ‘natural’ was good, anything that smacked of deliberation or planning was ‘inauthentic’, ‘repressed’, and ‘conformist’. The country had hardly recovered from that hash when the Ideological Feminists (not to be confused with the ‘equality feminists’ who were simply looking to negotiate a fairer shake for women) declared war; the IFs were former antiwar activists of the 1960s who ‘changed wars’, from a no-hold-barred, anything-is-justified ‘war against the (Vietnam) war to a no-holds-barred, anything-goes, do-whatever-it-takes war on ‘men’. And ‘men’, famously, were ‘vertical’ thinkers, oppressing creation (as it were) with their rationality, heterosexuality, societal institutions, Constitution, and all the other paraphernalia of the Evil Patriarchy. Oy.

So where the Hippies and flower-kids simply set up their own counterculture (defining ‘culture’ rather broadly), the IFs set themselves the tasks of a Long March through the institutions and a Long War against ‘patriarchy’, which would include ‘men’, rationality, deliberation, and – was nobody paying attention? – the Constitution. In effect, the whole of American culture – and its Constitutional ethos – would have to go. The Framers, most certainly, ‘just didn’t get it’, so all their pomps and works must be swept away as quickly as might be managed. Of course, as We saw in Russia in 1917, in this Vale of Tears called human history, one set of pomps and works is swept away only to be replaced by another, and often worse, set. Selah.

So I’m kind of careful around “outrage”, and around its less-vividly garbed cat’s paw, called “offensensibility” (in Opus the Penguin’s superb characterization). I treat the stuff like the nitroglycerine, the Universal Solvent, that it most essentially is.

But now comes Harvey Silverglate, outspoken and acute attorney for whom I have developed a high respect, after reading what he has been writeing for quite a few years. He writes a couple of days ago about ‘stepping back’ from “torture outrage”.

My first reaction is to disagree. I’d like to see the erosion of the Constitution kept in front of every Citizen’s mind for the forseeable future, or at least until We can effect repairs to the corrosion and corruption of the past forty years – whichever comes first.

But I put my reaction on hold to see what Silverglate wants to say here.

He points out that compared to the Nazi and Soviet era tortures (and worse), what was effected in Our time (and on Our watch, as so many erstwhile militant patriots are fond of saying) was baaad, but doesn’t rise to the premeditated and purely gratuitous infliction of permanent maiming.

And in light of the ‘emergency’ (of 9-11, of Sadaam, of ‘global terrorism’) decent and well-intentioned operatives of this and that government agency might indeed take their orders, and the legal memos issued to support them, as legitimate instruction, to be obeyed in accordance with their oaths and commissions.

While acknowledging the rightness of the Nuremberg Principle – that in certain actions the defense of ‘only following orders’ is inadmissible, because the action was considered so naturally repugnant to human decency – Silverglate observes, with the weight of his professional training, experience, and deliberation, that nothing done since 9-11 rises to the level of the Nazi crimes against prisoners , civilians, and all the vast multitude, dead at their hands, whose blood cries out from the earth. And further, that he doubts any jury in any American jurisdiction would convict them. **

“Unless we are prepared to allow the war on terror to inflict further damage on our legal system, we need to step back and ask if perhaps better sense, and cooler heads, should prevail in the face of righteous outrage at our government’s conduct.”

I'm not sure that the greater damage to the legal system isn't the damage to its ethos when sworn and armed agents of that system can presume that the Leader can 'authorize' them to break not only the law, but some of the most fundamental laws, in the land.

Yet, look what laws, what principles of law, have been lustily fractured by Democrats eager to please 'bases' and 'constituencies' and 'demographics' and by Republicans eager to wrap themselves in the flag.

I’ve always been concerned about that “damage” to Our legal system (and to Our Constitutional ethos itself). Although I’d go back forty years, rather than eight.

But of course, to keep a “cooler head” and to “step back and ask” whether “better sense” should prevail, in the face of “outrage” … that has in the past forty years come to be equated, in ‘elite’ discourse, certainly, with lack-of-sensitivity and as indicative of a mind that not only ‘just doesn’t get it’ but is also a mind darkly in collusion with ‘oppression’.

A citizenry comprised largely of ‘victims’ is a sheepfold requiring a shepherd, a Protector or a ‘saving elite’, and is incapable of usefully exercising the liberty of competent rational and deliberative agency. And thereby any ‘rule of law’ is ‘quaint’ and not-required, since the poor sheep couldn’t distinguish ‘law’ from not-law anyway, and in the ‘emergency’ of their victimization and oppression their ‘pain’ must be heard, not-questioned, and immediately assuaged – by any means necessary.

Which is a recipe for … a government OTC (other-than-Constitutional). Oy gevalt.

Silverglate, much to his credit, raises the point raised by Robert Bolt’s mid-Sixties play and film, “A Man for All Seasons”, about Sir Thomas More’s refusal to truckle to Henry VIII’s demand that he agree to Henry’s divorce of Catherine of Aragon. There is a law higher than the King’s, says the Catholic Moore – and he doesn’t mean simply the Pope’s ‘law’, but rather God’s law. More, for all his lawyerly shrewds, could not bridge that awefull abyss between King and conscience, between King and – if I may – God.

No government – repeat no government – wants its citizens acknowledging an authority higher than or other than its own. The Founders saw that, but presumed that in this shining New World, the chance existed that a Citizenry would be raised up, The People, whose personal commitment to such a Higher Law, and the government’s members’ personal adherence to that same Law, would prevent any such an abyss from opening up between the Beyond and the polity that would be the United States of America.

In the script, More’s younger friend and protégé, William Roper, urges More to arrest one Richard Rich, known to be plotting against More in order to secure the King’s favor. “For what?” asks More. “That man is evil” replies Roper (and no gender feminist could put it better, except to omit the limiting adjective). Roper asserts that if the laws of England were a forest, and the devil were hiding behind a tree, then Roper would cut all the trees down to get at the devil.

“And when the last law was down, and the Devil turned round on you – where would you hide, Roger, the laws all being flat?”

Point, set, and match.

God – being all-knowing and (famously) having created the whole thing – can do without human laws when it comes to His own operations. But humans, not being divine, must allow themselves to be contained always by Law; otherwise anybody who felt that they had a shot could simply exercise force – their own, their followers’, or the government’s if they can manage to control it – to get what they want: power, money, status, the Millennium (their version of it, anyway), or all four.

And, with the exception of the actual Devil – who with diabolical cynicism almost never reveals his presence in any way admissible in a court of law – humans aren’t really authorized or equipped to go around declaring other humans to be the very Devil. Not even Fundamentalists or Ideological Feminists are so equipped or authorized, except in their own mind.

Silverglate quotes More in Bolt’s rendering: : “I’d give the Devil benefit of law, for my own safety’s sake!”. A sentiment grounded in the long struggle to establish the Rule of Law among humans, and very very Western. Indeed, one of the very foundations of Western culture and civilization at its best.

As opposed to the Divine Rights of monarchs (the grandparent of the Unitary Executive) and the right of revolutions to abolish their ‘enemies’ (as in the Terror that followed the so-well-intentioned French Revolution).

Legislation by “outrage”, a government whose only jobs are to pander to the “outraged” and to prevent “outrage” … these have now taken Us far enough down a darkling path that even a child can see how uncontrollable the government and the laws have become.

Indentured to the “outraged”, the government may well not be able to muster the strength on its own to pull back from the abyss and turn off the path.

We had best focus all Our energies and attention on helping out.

If there is ever a healthy obsession, this would be it.

NOTES

*And if, on top of that, your outrage has been – knowingly or not – misplaced … well, why go there just now? But give it some thought when you’re feeling up to it.

**I’d further qualify it: any civilian jury. Military juries, serving a ‘justice’ system which by its own admission ‘serves the command’, will at least 95 times out of 100 find what they are supposed to find. Unless they have a professional and career death-wish.

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