RANDOM OBSOLESCENT THOUGHTS

O.T. FORD
2004 July 17

Bad boys

The current vogue among extremists in the Middle East is to seize a hostage and then hack off the person’s head with a knife. It has happened, or been threatened, mostly in Iraq, but has also happened in Saudi Arabia and can be expected to spread. It has made for some theatrical videotape and caused an international stir, which is the only thing the terrorists could be hoping for. My supposition at this point is that these are persons who have just always wanted to do something like hacking another person’s head off with a knife. They are living out their most violent desires. This isn’t warfare; it is psychopath fantasy camp.

The previous nadir in terrorist scrutability lay in demands that the publics of certain states demonstrate against the occupation. That was easy enough; there were lots of people in Italy, to take the first example, who opposed the war to begin with, opposed the occupation as well, and could be counted on to turn out at a moment’s notice for basically any protest on any issue, but particularly if it seemed to oppose the war. And in this case, such a protest was organized with the specific intent of saving the hostages’ lives, the cost being, of course, that hostage-taking was rewarded and therefore perpetuated, not that the protesters were capable of thinking that far ahead. It must have been an especially-easy protest to organize, since lives were clearly on the line. The nebulous goals of most protests were replaced with a finite, measurable goal: free these three hostages. The transaction was facilitated by the fact that the terrorists themselves had set a nebulous goal. How many protesters were they demanding? That was never specified, allowing the terrorists to wave their hands and pronounce that their demands had been met, regardless of the turnout. They felt the rush of power by giving themselves an unquantifiable goal. Having felt that rush, they sought it out again. Another hostage, another deadline, another person beheaded or not based on a convergence of whims.

The new nadir is the case of the Filipino hostage, whose life was made conditional on the Filipino military advancing its withdrawal date from Iraq, from August 20 to July 20. The Philippines has fifty-one soldiers in Iraq, which is the twenty-seven-hundredth part of the total troop strength in Iraq; fifty-one fewer soldiers, one month earlier than planned. This is the equivalent of a subway bomber threatening to detonate explosives at rush hour unless forty-three dollars and twelve cents in unmarked, non-sequentially-numbered bills, plus a dime and two pennies, is left under a mailbox on the corner of Markwell and 17th. Excuse the apparent disregard for the life of the Filipino hostage, which does concern me, but it is the equivalent of a child threatening to scream for exactly half an hour unless its parents make fish sticks and pecan brownies for dinner, and serve them in plastic lunch containers. How can we possibly deal with persons who are so irrational?

Those who would organize a protest, or make a limited advancement of a troop withdrawal, to satisfy hostage-takers’ demands, are irrational in the broad sense, in that they have failed to understand the contribution they are making to further hostage-taking, and ultimately to the determination of circumstances by one party’s willingness to use violence, and the other’s abhorrence of it. But they are also irrational in the narrow sense, in that they have failed to understand that there is no appeasing persons who are themselves so hyperbolically irrational. There is only one way in which the condition for the life of the Filipino hostage makes any sense. It will not in any way change the nature of the occupation, one miniscule force contingent more or less. The only thing it will do is give the terrorists an achievable victory. In this victory they will have accomplished nothing but victory for its own sake. Again, not to disregard the lives at stake, but the terrorists might as well be playing football. They should enter al-Qa‘ida in the World Cup; they can score a 1-0 victory against Tonga on the football pitch and then spend the next four years claiming that God has vindicated them and their cause. They are going to claim that vindication anyway, win or lose, live or die. That being the case, it would be better if they were to skip the beheadings entirely.

Another concrete slab in the wall

There is only one place that collectively hates Jews more than Europe, and that place is the Middle East. It may be a coincidence, though, that there is only one place that has more gladly received the recent ruling of the World Court than Europe, and that place too is the Middle East. The World Court, which despite its name is a very European affair, has determined that the construction of a particular wall in the Middle East is a violation of international law. That wall is being built by the state of Israel. Constitutionally and demographically, Israel is a Jewish state; but this fact, as the Court would surely recognize, is circumstantial evidence.

The wall is being built between Jewish settlements in Palestine and Arab settlements in Palestine, though since Israel controls all of the land in question, it has favored the Jewish settlements, and the interests of the Israeli state itself. All of Palestine is under the control of Israel because of post-war occupation. The war in question was the second of three in which Arab states attempted to deny Israel existence, so Israel’s behavior towards nearby Arab lands is at least partially rational, whether or not justified. The Europeans and Arabs would call it unjustified, without question. But this is simple hypocrisy. Western Poland is occupied territory; it has not only been colonized by Poles, but ethnically cleansed of Germans. The Basque Country is occupied territory. Western Ulster is occupied territory. France has numerous overseas territories. All of these are originally military conquests settled by the conquering peoples (or, in the case of Poland, the conquerors’ clients) as deliberate policy. The Arabs themselves occupy Berber and Kurdish territory, as well, it should be noted, as having occupied militarily and colonized everything from Morocco to Mesopotamia, when they were in fact only indigenous to the Arabian peninsula. The Arabs no longer have a single state; but as a nation they have one of the most successful and enduring empires in the world. And yet no one is suggesting at the moment that they give any of it back; in fact, southern Kurdistan, which has been independent for thirteen years, is being driven back into the empire, and the Arabization policy of Saddam Hussein is being taken as a fait accompli. Kurdish independence would be treated as a crime under international law.

Of course, with the possible exception of a few Scandinavian states, every state in the world will disregard “international law” (however it is defined and determined) on selected occasions, sometimes just in obstinacy but usually because of its own conclusions about state interest. But the Europeans and the Arabs compound their hypocrisies with ironies. Palestine in general and Jerusalem in particular are sacred to Christians and Muslims because they are the native land of the Jews, from whose religion Christianity and Islam were deliberately derived. The Arab Muslim conquest and colonization of Palestine, and the crusader attempts to take it for European Christians, were self-interested acts in defiance of any conception of aboriginal rights, and absent even a mild respect for the Jewish culture that Muslims and Christians had, depending on your viewpoint, adopted, copied, corrupted, aped, or seized.

Russia, France, and especially Poland were rewarded with German land ― land where Germans lived and had traditionally lived ― as a punishment to the Germans for Nazism. The Germans were paying, in land, punitive damages, not compensatory damages, because the primary victims of Nazism, if they could be said to have gotten anything out of the defeat and discredit of Nazism, got an obviously-hollow convention against genocide, and a grudging acceptance of their right to a state in their native land, Palestine. The Arabs, who stood most to lose by the admission of this right, have fought it constantly, through various means ranging from conventional war to the merciless slaughter of children. It is appropriate to note that not all Arabs are responsible for this violence; but we are perpetually reminded of how broadly Arabs throughout the Arab world support this violence, including the merciless slaughter of children.

Israel is guilty of several transgressions of justice: the occupation and colonization of the West Bank, Gaza Strip, and Golan Heights; the excessive force used against non-combatants; and the economic dislocations caused by security measures, including the new wall. Israel has taken many innocent lives. But it does not require brilliant insight or even careful study to discern that the hostility with which Israel is treated is not the result of its transgressions. These are not special crimes, for which Israel deserves special condemnation; they are ordinary crimes, for which Israel deserves ordinary condemnation. The distinction is important, because such a great deal of bluster and bother goes into painting the Arab-Israeli conflict as entirely the fault of the Israelis and to blame for all of the other bad things in the Middle East. Clearly Israel is the focus of so much anger and even hate not because it is especially bad, but because it is especially Jewish. The term ‘double standard’ need be mentioned pro forma only, because obviously if Jews were routinely blowing themselves up in the markets of Cairo, taking uncounted young and old and completely innocent victims with them, someone would long ago have built a wall around all of the Jewish settlements in Palestine ― and then incinerated every living thing inside. The Jews would literally have been driven into the sea. Some of what Israel has done in its fifty years of existence is legitimate cause for anger and indignation. But the exaggerated level of anger and indignation we are in fact seeing has another cause, that being the same prejudice that prompted the Jews to say, only after the final pogrom of the European exile, “Stuff your genocide convention; from now on, we’ll look out for ourselves.” They have done almost as well at self-defense as the Arabs have done at self-pity. In fact, the Arabs are so good at feeling sorry for themselves that I don’t feel a need to assist.

Optional

Slobodan Milosevic is on the border of freedom for ill health, just as so many tyrants before him, including some I have recently mentioned. His current ill health, due mostly to a life ill lived, seems to be the result of two additional stressors: smoking, and the trial itself, particularly his service as his own chief advocate. It is curious that ruling Serbia and running proxy wars in the Balkans was not too much of a stress on Milosevic’s poor heart, but answering for his rule of Serbia and the atrocities of those proxy wars is so brutal that we are expected to excuse him out of simple decency. Talk even of making him give up cigarettes has been dismissed as a violation of his rights, as though this were somehow worse than his continued incarceration. I hesitate to print this, though, lest some fool decide that, yes, his continued incarceration is also a violation of his rights.

His health is a ruse, obviously. If he were so concerned about his health, he would quit smoking on his own. If he were so concerned, he would have retired voluntarily, rather than stealing the last presidential election in Serbia. Saddam, so protective of his virile image while in power, is already trying out the “old man” act in Baghdad. It works; why shouldn’t he? The argument that a heart attack during trial is punishment before conviction is respectable on its face, but the same applies to detention during trial, and, some would argue, the ordeal of the trial itself. But the trial, with its accompanying detention and even its risk of heart attack, is in fact the humane option, in more ways than one. A trial, we should not forget, is a safer, fairer alternative to summary revenge, which in the cases of Milosevic and Saddam would be justified, to be sure. As disturbing as the prospect of global vigilantism might be, it is not a fraction as disturbing as a world without accountability. Considering the risk of an innocent person dying of a heart attack because of the stress of a trial, I for one am willing to take that risk and pay its attendant price, because it is, in fact, the very least that can be done. We know what it is like when individuals like Saddam and Milosevic are not held to account ― or at least some of us do.

All power to the soviets

There is, not that I knew it until yesterday, a furor in legal commentary attending the US Supreme Court’s recent Blakely v. Washington decision. This ruling properly found provincial sentencing guidelines unconstitutional, in that judges were augmenting sentences based on “facts” that had never been considered by the jury, or had even been rejected by the jury. That is scandalously unjust as well as a violation of the Constitution’s sixth amendment. I was inclined to applaud, but a few commentators, who if proportionate represent many commentators, were applauding for a reason quite different. They saw sentencing guidelines as a usurpation of power by the legislature, and even as a politicization of the criminal justice system. These notions are both so bizarre that I actually had to consider them at length just to understand them well enough to disagree. What can either of them mean?

I have long favored parliamentary government, for its simple, democratic accountability structure. One body, the legislature, governs. It is elected by the populace directly (and, ideally, at large, not in arbitrary geographical constituencies), and can then be judged on its actions, and reelected or evicted at the next opportunity. It makes the laws, and it enforces them, generally through a subset of itself called ‘the government’. The US has instead adopted a fabricated tripartite distinction in government, and the formula has been repeated so often that US citizens and even US legal scholars think they are discussing something indisputable when they themselves uncritically repeat it. The legislature makes the laws, the executive enforces the laws, and the judiciary interprets the laws. The last is an obvious redundancy; why would a separate body be needed to discern what the legislature meant, when the legislature is immediately to hand? The distinction between making and enforcing the laws makes sense as a matter of efficiency; the full parliament need not and should not be consulted as to the exact size and shape of every street sign. On the other hand, if it chooses to determine this, it has the prerogative. The proper function for a government is the creation of a legal environment in the state, and only one body, under the electorate, should have the authority to do this. The idea that the legislature can exceed its authority in the making of the laws by determining how those laws are interpreted or enforced is nonsensical. If they cannot determine interpretation or enforcement, then they have not really been making the laws.

The ‘politicization of the criminal justice system’ is a phrase that begs the question. It assumes that the system was not political, and that we are therefore witnessing a change, when the legislature, in addition to saying what should be illegal, says exactly what should be the consequences. Is that not a proper function of legislation? And is there anything inappropriate about political considerations in it? At trial, an impartial determination of facts is certainly in order. But it is far better for an elected body representing the whole to decide how much and in what way a particular crime should be punished, should the trial conclude that it actually took place. Politics is simply the attempt to influence society, and a judge deciding on its own how long a person should stay in prison, and why, is being supremely political, and I for one am frightened by such power. That goes especially when the judge holds a lifetime appointment and is practically beyond accountability. Naturally each individual voter distrusts every other voter and therefore the collective, and would prefer to make all important decisions itself. But does any of them honestly believe that the solution to its neighbors’ folly is to pick one of those neighbors and give it dictatorial power forever? Even the original Roman dictators had limited terms of office. Caesar’s perpetual dictatorship ended at the hands of senators jealous of their own influence. Caesar’s assassination was political, but Caesar’s dictatorship was also political, as was his life, and the life of Brutus, and the life and career of Blakely author Antonin Scalia. Either we want to live in a democratic society, or we do not. Letting Antonin Scalia determine the precise limits on the power of himself and his fellow lifetime appointees is not democracy, or justice, or anything like a good idea. In fact, I would go so far as to say that a Scalia dictatorship is a bad idea. If Blakely means less power for judges, I am for it. If it ultimately means more power for judges, I will be the first in the queue to stick a knife in Scalia, or at least figuratively, since to kill a judge in a judicial dictatorship would surely be the highest form of treason.

Original version

© O.T. FORD