An interesting article in the November Vanity Fair from Christopher Hitchens, and it's his version of the MOU’s "Look What They've Done to My Pretty Little War". But at least Hitchens attempts to grapple with the human consequences of policies he helped promote. Hitchens promoted the war with as much gusto as anyone and with considerably more style and he's never before come close to retrenching his position.
Apparently, Mark Daily, a 23-year-old UCLA honors graduate, was inspired, in part at least, by Hitchens' writings, to enlist to serve in Iraq and was killed there last year. A friend had sent Hitchens an article from the LA Times wherein Mark Daily's family said that Hitchens’ writings about the moral case for the war deeply influenced their son to enlist. For some reason, Hitchens is stunned to learn of this, as if he heretofore was completely unaware of the consequences of war on the families of those serving in the military.
Just as Philip Roth apparently believes it is harder on Roth to write about the Holocaust, than for others to have lived through the Holocaust, the costs of the war in Iraq only have real meaning when they reach such as Hitchens. Hitchens fancies himself a brilliant man but it is almost as if it never occurred to him that war meant killing and dying and families grieving.
Mark Daily was doubtless a wonderful person and his death a tragic senseless loss. It's entirely proper for reporters like Teresa Watanabe of the Los Angeles Times to report and to mark the passing of people like Mark Daily. But Hitchens hitches Daily's nobility to his own campaign for the war and there's something unseemly about it, apart from the spectacle of an arrogant blowhard like Hitchens making with the weepy stuff all of a sudden. It's awfully damn big of Hitchens to own up to his responsibility.
Hitchens goes on at length about the impressiveness of Daily's resume and the purity of his motives in Iraq. Again, Mark Daily may have been the genuine article, but you get the feeling that Hitchens is straining to invest the squalid debacle of Iraq with the personal qualities that Daily possessed. Hitchens sees in Daily the chance for him to quote William Butler Yeats and from Macbeth and from George Orwell. No wonder Hitchens loves the fallen young soldier. But I can't help feeling that Hitchens doesn't give a hoot in hell for the vast majority of riff-raff serving in Iraq who don't approach Daily’s credentials.
After reading the article, Hitchens got in touch with Daily's family and actually met with them and attended a memorial service where they spread their son's ashes on a favored vacation spot.
Hitchens takes pains to note that the Daily's are not your typical Orange County Republicans. Perhaps the Daily's, knowing of their son's feelings about Hitchens, wanted in some way honor his memory, so they shared their grief with the author their son admired. You can certainly understand the need for parents in this situation to make some sense, to find some purpose behind the death of the son. But Hitchens is up to more than simply honoring the memory of their son. He portrays the Daily's as being entirely without resentment, even to the point where they are concerned and worried that poor Hitchens might feel some guilt or responsibility. The Daily's absolved Hitchens from this and made him feel a little better. This is what Hitchens wants for the rest of us -- -- to feel a little bit better about all of the killing and the casualties.
Hitchens quotes from some of Mark Daily's writings to his family and friends. In one, Mark Daily writes about a conversation he had with a Kurdish man about whether insurgents could be viewed as freedom fighters wherein the Kurd states "the difference between insurgents and American soldiers is that they get paid to take life -- -- to murder, and you get paid to save lives." Of course, that's self-serving nonsense, (tell that to all the Iraqis permanently underground), but it's hardly surprising that Mark Daily would write such things to his family to try and reassure them not only of his well-being, but of the whole point of his being in harm's way in the first place. And now here's the big creep, Hitchens, quoting from private writings, bracketing them with fancy poetry, analogizing Iraq to the Spanish Civil War and himself to George Orwell. Certainly Hitchens is again stating his case for the war, but ultimately there is a difference in this article.
The Spanish Civil War analogy encompasses not merely the romanticism, but the brutal and ugly truths of it. Just as Orwell came to see that war as one “where betrayal and squalor negated the courage and sacrifice of those who fought on principle”, Hitchens has "grown coarsened and then sickened by the degeneration of the struggle: by the sordid news of corruption and brutality (Mark Daily told his father how dismayed he was by the failure of leadership at Abu Grahib) and by the paltry politicians in Washington and Baghdad who squabble for precedents while lifeblood is spent and spilled by young people whose boots they are not fit to clean."
What Hitchens will never admit is that the struggle was degenerated from the start and that people like Mark Daily should never have been sent there in the first place. That is a better way to honor the nobility of spirit that Mark daily show, far better than the weepy drunken poetry of Hitchens now that Mark Daily is dead. To not lie people like Mark Daily into war.
Sunday, October 07, 2007
Thursday, October 04, 2007
It's Alright, Ma (It's Only Organ Failure) (Torture Memos)
“Secret U.S. Endorsement of Severe Interrogations”
The most basic premise is that it is a crime to torture, and reliance on the illegal memo, reduced to a field order or operating policy, would not be a defense, if it is beyond the bounds of good faith acceptance.
Even if interrogators reasonably believed in the legality of the memo (as reduced to an operating order to severely interrogate), the senior administrators issuing the writings would be criminally culpable.
A torturer's assertion of an affirmative defense of a mistaken, but good faith belief in the legality of an opinion or order, or an assertion of reasonable reliance on an illegal opinion, is entitled to no presumption of correctness or genuineness.
A fundamental distinction is drawn, in such instances, as a necessary matter of legal logic, in order to prevent a professed, inherently subjective reliance on a belief, as to legality, from obscuring the core proposition that base illegality is recognizable, even in the face of governmental authorities advising or instructing to the contrary.
There is well developed law on this. Even a combat soldier can not legally obey an illegal order to kill or torture.
There is the concept of the order from a superior which you are bound to recognize as being patently illegal and not perform, even under threat of punishment.
You may be entitled to a trial to determine mental culpability, and hear mitigating circumstances relevant to punishment rather than to guilt.
However, the blanket defense that "orders are orders" has long been rejected, at Nuremberg by way of one example, at least with respect to matters of irreducible illegality, such as killing or torturing unarmed humans in your custody or control who have not been first convicted of crime through regular legal process.
It also follows from these concepts that the factual information as to whether “severe” interrogations (torture) actually occurred must be discloseable.
There can be no legal privilege against disclosure of fundamentally unlawful conduct, or otherwise, the premise would be once again lost.
Contesting what constitutes "torture" along the continuum of physical abuse, is not a legal defense to the charge of engaging in torture.
It would instead be a factual defense, determinable by the trier of fact, on case by case basis.
Infliction of physical or mental abuse, having a reasonable probability of doing material, permanent damage to the subject, that is, posing an appreciable risk of rendering serious permanent psychological or bodily harm, would presumptively constitute torture.
The burden would then shift to the defense to introduce evidence that an interrogation procedure involved something short of this.
The memo probably reads much like the wire tapping memoranda, with its extra-legal assumption as to the existence of a reserve of executive discretion to determine measures (and their proportionality) used to respond to perceived threats to national security.
That position is not substantively a legal position, however.
It is instead a Hobsonian philosophical proposition, at best. (It is lacking in the grounding in disciplined reasoning that characterizes what credited scholars would recognize as a genuine political philosophy).
The concept of law must, by definition, reject the notion that there exits, outside of legal analysis, sanction in the law, for immeasurable uses of force or power, for some general value transcending law, left ultimately to the unreviewable determination of individuals.
To say that perceived war exigencies trump law, is not to use legal analysis or to make a statement of a legal disposition.
It is instead a statement that in the conflict between law, and an actor's assertion of a self-imperative of illegality, the dispute was "settled" by the practical reality that the actor had an insurmountable, working , political control (political , in the sense of the mechanisms of governmental power) of the means of law enforcement. This ultimately means control of the police power.
From that point the analysis is only historical or sociological -- the conflict is joined oat the point that police power, naked of legality, loses basic social, normative legitimacy that is needed to function without recourse to repression of majority sentiment.
Finally, needless to say, before that tipping point is reached, majority toleration, or even approbation for, illegality, does not, by itself, constitute a source of a new legality.
The idea, of passive popular acceptance of official acts being a source of legality, has also been well canvassed in the law of war.
The most basic premise is that it is a crime to torture, and reliance on the illegal memo, reduced to a field order or operating policy, would not be a defense, if it is beyond the bounds of good faith acceptance.
Even if interrogators reasonably believed in the legality of the memo (as reduced to an operating order to severely interrogate), the senior administrators issuing the writings would be criminally culpable.
A torturer's assertion of an affirmative defense of a mistaken, but good faith belief in the legality of an opinion or order, or an assertion of reasonable reliance on an illegal opinion, is entitled to no presumption of correctness or genuineness.
A fundamental distinction is drawn, in such instances, as a necessary matter of legal logic, in order to prevent a professed, inherently subjective reliance on a belief, as to legality, from obscuring the core proposition that base illegality is recognizable, even in the face of governmental authorities advising or instructing to the contrary.
There is well developed law on this. Even a combat soldier can not legally obey an illegal order to kill or torture.
There is the concept of the order from a superior which you are bound to recognize as being patently illegal and not perform, even under threat of punishment.
You may be entitled to a trial to determine mental culpability, and hear mitigating circumstances relevant to punishment rather than to guilt.
However, the blanket defense that "orders are orders" has long been rejected, at Nuremberg by way of one example, at least with respect to matters of irreducible illegality, such as killing or torturing unarmed humans in your custody or control who have not been first convicted of crime through regular legal process.
It also follows from these concepts that the factual information as to whether “severe” interrogations (torture) actually occurred must be discloseable.
There can be no legal privilege against disclosure of fundamentally unlawful conduct, or otherwise, the premise would be once again lost.
Contesting what constitutes "torture" along the continuum of physical abuse, is not a legal defense to the charge of engaging in torture.
It would instead be a factual defense, determinable by the trier of fact, on case by case basis.
Infliction of physical or mental abuse, having a reasonable probability of doing material, permanent damage to the subject, that is, posing an appreciable risk of rendering serious permanent psychological or bodily harm, would presumptively constitute torture.
The burden would then shift to the defense to introduce evidence that an interrogation procedure involved something short of this.
The memo probably reads much like the wire tapping memoranda, with its extra-legal assumption as to the existence of a reserve of executive discretion to determine measures (and their proportionality) used to respond to perceived threats to national security.
That position is not substantively a legal position, however.
It is instead a Hobsonian philosophical proposition, at best. (It is lacking in the grounding in disciplined reasoning that characterizes what credited scholars would recognize as a genuine political philosophy).
The concept of law must, by definition, reject the notion that there exits, outside of legal analysis, sanction in the law, for immeasurable uses of force or power, for some general value transcending law, left ultimately to the unreviewable determination of individuals.
To say that perceived war exigencies trump law, is not to use legal analysis or to make a statement of a legal disposition.
It is instead a statement that in the conflict between law, and an actor's assertion of a self-imperative of illegality, the dispute was "settled" by the practical reality that the actor had an insurmountable, working , political control (political , in the sense of the mechanisms of governmental power) of the means of law enforcement. This ultimately means control of the police power.
From that point the analysis is only historical or sociological -- the conflict is joined oat the point that police power, naked of legality, loses basic social, normative legitimacy that is needed to function without recourse to repression of majority sentiment.
Finally, needless to say, before that tipping point is reached, majority toleration, or even approbation for, illegality, does not, by itself, constitute a source of a new legality.
The idea, of passive popular acceptance of official acts being a source of legality, has also been well canvassed in the law of war.
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