Filed under: Democracy | Tags: Adolf Eichmann, Barack Obama, Henry V, Justice, Law, Prince Hal, Torture, Waterboarding, William Shakespeare
US President Barack Obama has released classified memos that reveal administrative approval of waterboarding and sleep deprivation, among other tactics, in the interrogation of terror suspects by the CIA. The Obama administration has rightfully denounced such crimes as torture. I don’t know all the details about American and Canadian participation and complicity in the torture of terror suspects, but I know someone who does. For those details, read skdadl at pogge.
But this post is not about the horror we feel once we realize the inhumanity our governments have inflicted in our names—such a reaction should be quick and visceral. Besides, we’ve known about these crimes for some time. What is alarming about the memos is the legal sleight-of-hand they effect to render torture lawful. And, equally alarming, is Obama’s insistence that:
In releasing these memos, it is our intention to assure those who carrying out their duties relying in good faith upon the legal advice from the department of justice that they will not be subject to prosecution.
We’ve heard this before, of course. CIA agents who forced terror suspects to believe they were drowning, who exploited deep-seated phobias to glean unreliable information, and who caused such untold mental and physical duress to enemies of the state that they are now immune to prosecution, overrode any ethical qualms they may or may not have held simply by surrendering to the steely rule of law. Adolf Eichmann made a similar appeal in his war crimes tribunal in front of the Supreme Court of Israel:
It was my misfortune to become entangled in these atrocities. But these misdeeds did not happen according to my wishes. It was not my wish to slay people. The guilt for the mass murder is solely that of the political leaders… I would stress that I am guilty of having been obedient, having subordinated myself to my official duties and the obligations of war service and my oath of allegiance and my oath of office, and in addition, once the war started, there was also martial law….
I accuse the leaders of abusing my obedience. At that time obedience was demanded, just as in the future it will also be demanded of the subordinate. Obedience is commended as a virtue. May I therefore ask that consideration be given to the fact that I obeyed, and not whom I obeyed.
It is understandable for Eichmann to make this plea: he was fighting for his life. It is less forgiveable for Obama to do so. Essentially, Obama is condoning that actors of the state abandon their own sense of judgement for another, as if the law is a cold, literal thing, handed down to us by mystics and soothsayers who conjure truth out of an impenatrable lexicon we cannot hope to understand. Is not asking for ‘good faith’ in the ‘legal advice’ of experts not an act of theology?
There’s another man who justified his warmongering with cold literalism. When the Archbishop of Cantebury advises Prince Hal, now King Henry, to invade France based on a specious and tortuous claim to the throne (which, incidentally, has something to do with the fact that Hal’s great-great grandmother was a daughter of the King of France, and hence under English law, but not French law, Hal’s claim has legs) in Shakespeare’s Henry V, he equivocates until Cantebury assures him that if his logic is not correct, ‘The sin upon my head, dread sovereign!’ Only once he can abrogate responsibility under the guise of faith (in both literal law and in his religious advisors) will he exercise his ambition in a logic that confounds readers and audience members to this day.
Shakespeare may well support Hal and earnestly attempt to legitimize the morality of a highly questionable invasion, but his concept of the law is clear. When Hal camouflauges his royalty and infiltrates his army’s camp before the battle of Agincourt, he meets two soldiers who are troubled by the legitimacy of their actions, but take solace, like Eichmann, in obedience:
we know enough, if we know we are the King’s subjects. If his cause be wrong, our obedience to the King wipes the crime of it out of us.
This line would appear to suffice for Eichmann, and indeed, for Obama. But not, I think, for the King. He does not agree:
The King is not bound to answer the particular endings of his soldiers, the father of his son, nor the master of his servant; for they purpose not their death, when they purpose their services…Every subject’s duty is the King’s; but every subject’s soul is his own. Therefore should every soldier in the wars do as every sick man in his bed, wash every mote out of his conscience.
The law, then, is dialectic: it is in the service of society and of ourselves. The King himself says no less in his famous exhortation at Agincourt, the climax of the play and articulation of the play’s conception of obedience and law:
We few, we happy few, we band of brothers.
For he to-day that sheds his blood with me
Shall be my brother; be he ne’er so vile,
This day shall gentle his condition;
The equalities and parallels drawn between the gentlest and vilest of our society justifies the King’s claims on his men: while the King might be culpable of reckless warmongering, the cohesion of this relationship never falters. Only a just cause validates the relationship. Justice issues from solidarity and trust. It is oceanic, and total: resolute, not absolute.
Such a relationship cannot be said to exist under Eichmann or under George W. Bush. Their ruling impeteus is clear: these are the facts, and you shall obey. Can the CIA agents who practiced waterboarding on terror suspects say that every mote has been washed out of his conscience? Can Obama? By absolving these actors on the basis of their obedience to faulty logic and mystifying legal machinations, Obama has done nothing to restore public and international trust to a diseased system. To revitalize the law, the United States needs to resituate on principles of solidarity, communion and individual culpability. At times, it seems the law is as fragile as it is robust. Those who have committed these crimes need to face justice and those who can effect as much need to stop shielding them with the law.
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