Against Prosecution (II): Concerning the State, the Law, and Show Trials
Part I: A Vicious Fury -- with Nukes
From a broad, theoretical perspective, any trial in any State can be regarded as a show trial. In this discussion, I use "show trial" to refer to a trial in which the guilt or innocence of the defendant may be a concern to those dispensing justice (or what is designated as justice in that State), but that determination is not the primary concern. The primary objective is not answering the question of guilt or innocence in a strictly legal sense (applying the relevant law to the specific facts of the case), but political in nature. The major value of a show trial to the State is its usefulness as propaganda; more specifically, the major value is the utility of the proceeding to the enhancement of the perception of the State as legitimate and/or to the demonizing of the State's chosen enemies. In the absence of a widespread campaign of terror directed against the general population, a people will regularly and consistently submit to the State only if they view that State as basically fair and good, devoted at least to some significant extent to their well-being and welfare. Thus, even and especially in a show trial, the State will be at pains to demonstrate its fairness and objectivity. The State will therefore carefully and systematically seek to portray the defendant it wishes to convict as a person fully deserving punishment. If the defendant is convicted, the State will want to be certain that most people view the defendant as having earned his fate. There must never be a significant suspicion that the defendant has been unjustly singled out for punishment, while others known to be guilty of similar or even worse crimes are allowed to walk free.
My analysis of these issues depends on several interrelated basic principles that I have previously discussed in detail. In "The State and Full Spectrum Dominance, Abroad and At Home," I set forth these principles (often relying on still earlier articles). The first principle is this (in abbreviated form; see the earlier essays for the fuller versions):
Certainly, I think that more or less fair and objective systems of law can and have been devised, and I am not interested in pursuing a discussion of complex metaphysical and epistemological questions in any event. (I do not deny that those complicated questions underlie narrower conclusions, but such a discussion would take us much too far afield.) But I stress the man-made aspect of law, because it is so often neglected or emphasized too little. As I said in the earlier piece, laws are devised by particular people, in particular circumstances, with particular friends and interests. As we proceed through this discussion, we will see a few notable examples of this phenomenon. And those people who devise a system of law are members of the ruling class; that is why they are devising the laws, and not others. Thus, law is the specific means by which the ruling class utilizes the power of the State and directs that power to the ends they desire.
Moreover, as I have often had sad occasion to note, even dictatorships have laws, and even the most brutal and crushing of totalitarian systems. Even under a dictatorship, there must be a minimal appearance of law as a phenomenon providing fairness, stability and predictability -- even as the people struggle under the burden of sensing that any and all laws can be changed at a moment's notice, that what is punished today may be rewarded tomorrow, and that the ruling class may disregard the law with impunity and indeed live largely outside the law altogether, while those who are disfavored by the State may be punished at any time for any reason or for no reason whatsoever. The United States has not yet reached the stage of outright dictatorship, although it must be emphasized that all the mechanisms for the establishment of a dictatorship are now in place (see here, here and here, for example). But with regard to the operation of our system of law, you might well ponder how close to a dictatorship we have already come. I encourage you to do precisely that.
You will find these issues discussed from another perspective in, "It's not the sex. It's never the sex." (an essay of which, I freely admit, I am unashamedly fond). For our present purposes, I draw your attention to these passages:
To such protestations, the only response can be that all such objections may be entirely invalid. Depending on the specific context and circumstances, "some" justice may be far worse than no justice. In fact, "some" justice may constitute the greatest injustice of all.
Begin with the simple case. Imagine that a murder suspect has been apprehended, and that evidence of his guilt is as close to conclusive as possible. After conscientious investigation and consideration, we are aware of no other potentially relevant factors affecting a determination of the suspect's guilt or innocence. In this instance, the defendant's conviction would appear to be fully just. Murder is certainly a heinous crime (there is no suggestion that self-defense was involved), and evidence of guilt appears to be unassailable.
Now add just one new element. In the course of the investigation, the State becomes aware that several key pieces of evidence were tainted -- or that evidence was obtained in violation of the defendant's rights -- or that the defendant suffers from some legally recognized "mental defect," which would minimize his punishment. But the District Attorney is newly elected, and he is intent on burnishing his image as a "law and order" kind of guy. He wants a clean, simple case: overwhelming evidence, an unsympathetic defendant, and bang, off he goes to prison for life. So the DA suppresses all knowledge of the new element that has arisen. Has justice been done? Obviously not, but we may never know that.
Or imagine a case where no personal malfeasance of the kind described above is involved. But we might find institutional or systemic malfeasance. Two separate defendants are clearly guilty of the same crime; one is a child of privilege, the other is not. The first defendant, a teenager with wealthy, well-connected parents (who also happen to be white), is found guilty, but the jail sentence is suspended and he must perform community service. The second defendant, who is very poor, with no connections at all (and who also happens to be black), is also found guilty. He is sentenced to seven years in jail.
We don't need to imagine that last example. This is what happens many times a day in the course of the horrifying, destructive, utterly unjustifiable "War on Drugs." When you add the fact that in a very large category of drug cases, those that are nonviolent and involve only possession, no conceivably legitimate designated "crime" has been committed in the first place, the abomination is intolerable. To dispel any doubt, I am in favor of legalizing all drugs, period. In fact, for much of U.S. history, all those drugs now designated "illegal" were entirely legal. It was and is only a primitive, stupidly moralistic view of what is "good" and "bad," arising out of a quasi-religious view of the State's mission and a willingness to use the State to impose one particular vision of morality on everyone, that allowed the War on Drugs to take root, and that allows its depredations to continue today. See this essay for much more on this subject; once again, it was the Progressive movement of the early twentieth century which you can thank in significant part for the origins of the Drug War, which was inextricably woven into the drive to Empire.
These are only a few examples of the complexities involved in any consideration of the "majesty" and supposed "disinterest" of the law, and its uses by the State. You could easily multiply these examples many times, in endless variations. I emphasize again that the law always reflects and implements certain choices and interests of the ruling class. Those individuals who are strongly favored by the ruling class will do well in their dealings with any system of law, even when they run afoul of particular proscriptions. (Again, see "It's not the sex." for a discussion of this point in connection with all the tax issues that have arisen with Obama administration personnel, or would-be personnel.) Those who are strongly disfavored will do very poorly indeed. In the case of the Drug War, the State has been utilized to punish an entire class and an entire race over several generations in a hugely disproportionate way, to a degree that is eternally unforgivable.
The Drug War may be a prototypical example and indisputably repellent proof of one of my opening observations about show trials, but it is far from the only such example: "The major value of a show trial to the State is its usefulness as propaganda; more specifically, the major value is the utility of the proceeding to the enhancement of the perception of the State as legimate and/or to the demonizing of the State's chosen enemies." In this sense, the Drug War is nothing but an unending, detestable show trial from beginning to end. The fact that the Obama administration has already demonstrated a dedication to continuing this disgusting business earns that administration a lengthy stay in Hell, where it will join every previous administration. The fact that all administrations, Democratic and Republican, are equally dedicated to this loathsome persecution makes this unending abomination infinitely worse, not better.
In the first part of this essay, I stated my objection to prosecution of the Bush war criminals in various ways: "By seeking to localize the evil in only one aspect of the much broader and more fundamental evil involved and within a falsely delimited period of time, the torture obsessives would thus whitewash the American project as a whole"; and: "So the selective pursuit and possible prosecution of a few of those who devised, directed and implemented the U.S. torture policies, but only those of recent vintage and not any of those that went before or are yet to come, will conveniently provide the United States with a clean slate upon which to write new chapters of crime." If there are ultimately any prosecutions in connection with torture, which I continue to strongly doubt will ever occur, certainly with regard to the highest-ranking officials, the message will be in effect: "We have investigated and punished those responsible for this great evil. Now America is Good again. We have restored America's soul, her true values, and her great moral virtue." These appeals to "America's soul" and America's "true values" are actual phrases I have seen repeatedly in various articles, columns and blog posts, and I will be discussing some notable examples of this remarkable idiocy in a future installment. Apart from the vacuous, meaninglessly empty phrases and hoary cliches employed by so many writers on this subject, the content of this view (to the extent such can be ascertained) is absolutely wrong: it is wrong as a matter of historical record, in terms of its analysis and methodology, and with regard to its evaluation.
Given my remarks about the great evil of torture, it should be obvious that when I say that any prosecutions in connection with torture will be only the worst kind of show trials, my meaning is precisely the opposite of those torture and/or Bush administration apologists who make the same claim. The apologists say they will be show trials because they will be unfairly selective, since many Democrats are also culpable. That much is true, but the apologists often make a further claim or claims: that the behavior involved was not torture (which is so disgustingly ludicrous given the specifics already available in the public record that I will not even bother to address it), and/or that the torture was "justified."
This is clearly not my view in any respect. Torture is a monstrous evil that is never justified. My objection to show trials concerning torture is not that these are not crimes, or that these acts are not evil. Instead, my objection is that, as monumental an evil as torture is, it is not the first evil, or the greatest one. The all-encompassing evil, the evil that is the bedrock on which a series of additional evils, including torture, has been erected is the system of governance involved and the nature of the State at issue: a corporatist-authoritarian-militarist State, one devoted to the expanding regulatory-surveillance State at home and to an unending series of aggressive interventions abroad. That is the evil that must be recognized and, if at all possible, rectified or minimized, if the series of evils and the unending path of destruction and death are to be ended.
To appreciate this, we must look at some history, including the history of torture itself, going back to before the founding of the United States. And we shall do that in the next installment.
From a broad, theoretical perspective, any trial in any State can be regarded as a show trial. In this discussion, I use "show trial" to refer to a trial in which the guilt or innocence of the defendant may be a concern to those dispensing justice (or what is designated as justice in that State), but that determination is not the primary concern. The primary objective is not answering the question of guilt or innocence in a strictly legal sense (applying the relevant law to the specific facts of the case), but political in nature. The major value of a show trial to the State is its usefulness as propaganda; more specifically, the major value is the utility of the proceeding to the enhancement of the perception of the State as legitimate and/or to the demonizing of the State's chosen enemies. In the absence of a widespread campaign of terror directed against the general population, a people will regularly and consistently submit to the State only if they view that State as basically fair and good, devoted at least to some significant extent to their well-being and welfare. Thus, even and especially in a show trial, the State will be at pains to demonstrate its fairness and objectivity. The State will therefore carefully and systematically seek to portray the defendant it wishes to convict as a person fully deserving punishment. If the defendant is convicted, the State will want to be certain that most people view the defendant as having earned his fate. There must never be a significant suspicion that the defendant has been unjustly singled out for punishment, while others known to be guilty of similar or even worse crimes are allowed to walk free.
My analysis of these issues depends on several interrelated basic principles that I have previously discussed in detail. In "The State and Full Spectrum Dominance, Abroad and At Home," I set forth these principles (often relying on still earlier articles). The first principle is this (in abbreviated form; see the earlier essays for the fuller versions):
[F]rom the first historic forms of the State, the State has always formed and will always form alliances with certain individuals and segments of society -- to which the government bureaucrats will provide favors and special dispensations, and to the severe disadvantage of those individuals and groups that are not so favored.The second principle concerns the nature of law itself:
The law is not some Platonic Form plucked from the skies by the Pure in Heart. Laws are written by men, men who have particular interests, particular constituencies, particular donors, and particular friends. ... Laws are the particular means by which the state implements and executes its vast powers. When an increasingly authoritarian state passes a certain critical point in its development, the law is no longer the protector of individual rights and individual liberty. The law becomes the weapon of the state itself -- to protect, not you, but the state from threats to its own powers. We passed that critical point some decades ago. The law is the means by which the state corrals its subjects, keeps them under control, and forbids them from acting in ways that the overlords might perceive as threatening. In brief, today, in these glorious United States, the law is not your friend.Next, consider these observations from Albert Jay Nock (in his book, Our Enemy, the State):
The positive testimony of history is that the State invariably had its origin in conquest and confiscation. No primitive State known to history originated in any other manner. On the negative side, it has been proved beyond peradventure that no primitive State could possibly have had any other origins. Moreover, the sole invariable characteristic of the State is the economic exploitation of one class by another. In this sense, every State known to history is a class-State. Oppenheimer defines the State, in respect of its origin, as an institution "forced on a defeated group by a conquering group, with a view only to systematizing the domination of the conquered by the conquerors, and safeguarding itself against insurrection from within and attack from without. This domination had no other final purpose than the economic exploitation of the conquered group by the victorious group."Following this passage from Nock in the earlier essay, I made these comments:
Thus, it is not enough to say, as I myself did, that "the State has always formed and will always form alliances with certain individuals and segments of society," although that is also true. The more accurate statement, and a formulation that delves more deeply, is that the State would never have taken form at all, and it would not have been able to impose its rule, but for the existence of a class or group of individuals that crafted the State to their particular ends. Here, I am not concerned with evaluating whether those ends are good or bad (except for the fact that one may believe that domination and exploitation are always bad, as I do), but rather with identifying the basis on which the State is founded.Just as I was not concerned with the question of whether particular ends are good or bad in the earlier article, but rather with a particular aspect of the nature of the State itself, here I am not focused on whether any specific system of law is judged as good or bad, but with the nature and purpose of any system of law. As I have suggested, one often gets the sense from reading many commentators that they believe a Form of Law exists in some mystical world, that there is a pure, disinterested, fully objective and fair legal system by which society might be organized. The task of those who devise laws is to grasp this perfect (or at least, closer to perfect) system of law and bring it down to earth, as it were.
Certainly, I think that more or less fair and objective systems of law can and have been devised, and I am not interested in pursuing a discussion of complex metaphysical and epistemological questions in any event. (I do not deny that those complicated questions underlie narrower conclusions, but such a discussion would take us much too far afield.) But I stress the man-made aspect of law, because it is so often neglected or emphasized too little. As I said in the earlier piece, laws are devised by particular people, in particular circumstances, with particular friends and interests. As we proceed through this discussion, we will see a few notable examples of this phenomenon. And those people who devise a system of law are members of the ruling class; that is why they are devising the laws, and not others. Thus, law is the specific means by which the ruling class utilizes the power of the State and directs that power to the ends they desire.
Moreover, as I have often had sad occasion to note, even dictatorships have laws, and even the most brutal and crushing of totalitarian systems. Even under a dictatorship, there must be a minimal appearance of law as a phenomenon providing fairness, stability and predictability -- even as the people struggle under the burden of sensing that any and all laws can be changed at a moment's notice, that what is punished today may be rewarded tomorrow, and that the ruling class may disregard the law with impunity and indeed live largely outside the law altogether, while those who are disfavored by the State may be punished at any time for any reason or for no reason whatsoever. The United States has not yet reached the stage of outright dictatorship, although it must be emphasized that all the mechanisms for the establishment of a dictatorship are now in place (see here, here and here, for example). But with regard to the operation of our system of law, you might well ponder how close to a dictatorship we have already come. I encourage you to do precisely that.
You will find these issues discussed from another perspective in, "It's not the sex. It's never the sex." (an essay of which, I freely admit, I am unashamedly fond). For our present purposes, I draw your attention to these passages:
The rules promulgated by the ruling class are not intended to constrain their behavior. They're intended to constrain yours, the behavior of those they rule. The ruling class will tell you repeatedly -- and most people will believe them -- that the rules are meant to apply to everyone, that "everyone is equal under the law." But that has never been true, and it will never be true....In considering these issues, it may prove helpful to consider a few examples. This will also provide me the opportunity of addressing one objection to my thesis that I can already hear: "But surely it's better to punish at least some of these criminals! We don't refrain from punishing one murderer because other murderers are unknown to us or cannot be convicted. Some justice is better than none." Etc.
...
With regard to these issues -- that is to say, with regard to every issue that matters in political terms -- the ruling class (or the elites) and the State are not different things: they are the same thing. As Christopher Layne observes: "Dominant elites do not hijack the state; they are the state." Rules, also known as "laws," are to control and direct the work and lives of those ruled by the elites. They are intentionally designed to protect the elites and to control everyone else. The elites may and will disregard them as they choose.
In exceptionally rare circumstances, a member of the ruling class may set aside the rules in a way that draws just a bit too much attention. As a result, all those "ordinary" people may become a trifle unruly; they might begin to wonder if the system is rigged against them in some basic way. Obviously, it is, but it would hardly do for the filthy masses to begin to grasp this central fact. In these situations, the ruling class will have to make some minor adjustments. It may not be enough to fire a waiter. A member of the ruling class might have to surrender one particular plum he had set his eyes on. This is not a matter of great significance for a member of the ruling class; there are many other plums waiting for him, including some of those plums he has enjoyed before. In all its essentials, his life of luxury, privilege and power will go on as before.
To such protestations, the only response can be that all such objections may be entirely invalid. Depending on the specific context and circumstances, "some" justice may be far worse than no justice. In fact, "some" justice may constitute the greatest injustice of all.
Begin with the simple case. Imagine that a murder suspect has been apprehended, and that evidence of his guilt is as close to conclusive as possible. After conscientious investigation and consideration, we are aware of no other potentially relevant factors affecting a determination of the suspect's guilt or innocence. In this instance, the defendant's conviction would appear to be fully just. Murder is certainly a heinous crime (there is no suggestion that self-defense was involved), and evidence of guilt appears to be unassailable.
Now add just one new element. In the course of the investigation, the State becomes aware that several key pieces of evidence were tainted -- or that evidence was obtained in violation of the defendant's rights -- or that the defendant suffers from some legally recognized "mental defect," which would minimize his punishment. But the District Attorney is newly elected, and he is intent on burnishing his image as a "law and order" kind of guy. He wants a clean, simple case: overwhelming evidence, an unsympathetic defendant, and bang, off he goes to prison for life. So the DA suppresses all knowledge of the new element that has arisen. Has justice been done? Obviously not, but we may never know that.
Or imagine a case where no personal malfeasance of the kind described above is involved. But we might find institutional or systemic malfeasance. Two separate defendants are clearly guilty of the same crime; one is a child of privilege, the other is not. The first defendant, a teenager with wealthy, well-connected parents (who also happen to be white), is found guilty, but the jail sentence is suspended and he must perform community service. The second defendant, who is very poor, with no connections at all (and who also happens to be black), is also found guilty. He is sentenced to seven years in jail.
We don't need to imagine that last example. This is what happens many times a day in the course of the horrifying, destructive, utterly unjustifiable "War on Drugs." When you add the fact that in a very large category of drug cases, those that are nonviolent and involve only possession, no conceivably legitimate designated "crime" has been committed in the first place, the abomination is intolerable. To dispel any doubt, I am in favor of legalizing all drugs, period. In fact, for much of U.S. history, all those drugs now designated "illegal" were entirely legal. It was and is only a primitive, stupidly moralistic view of what is "good" and "bad," arising out of a quasi-religious view of the State's mission and a willingness to use the State to impose one particular vision of morality on everyone, that allowed the War on Drugs to take root, and that allows its depredations to continue today. See this essay for much more on this subject; once again, it was the Progressive movement of the early twentieth century which you can thank in significant part for the origins of the Drug War, which was inextricably woven into the drive to Empire.
These are only a few examples of the complexities involved in any consideration of the "majesty" and supposed "disinterest" of the law, and its uses by the State. You could easily multiply these examples many times, in endless variations. I emphasize again that the law always reflects and implements certain choices and interests of the ruling class. Those individuals who are strongly favored by the ruling class will do well in their dealings with any system of law, even when they run afoul of particular proscriptions. (Again, see "It's not the sex." for a discussion of this point in connection with all the tax issues that have arisen with Obama administration personnel, or would-be personnel.) Those who are strongly disfavored will do very poorly indeed. In the case of the Drug War, the State has been utilized to punish an entire class and an entire race over several generations in a hugely disproportionate way, to a degree that is eternally unforgivable.
The Drug War may be a prototypical example and indisputably repellent proof of one of my opening observations about show trials, but it is far from the only such example: "The major value of a show trial to the State is its usefulness as propaganda; more specifically, the major value is the utility of the proceeding to the enhancement of the perception of the State as legimate and/or to the demonizing of the State's chosen enemies." In this sense, the Drug War is nothing but an unending, detestable show trial from beginning to end. The fact that the Obama administration has already demonstrated a dedication to continuing this disgusting business earns that administration a lengthy stay in Hell, where it will join every previous administration. The fact that all administrations, Democratic and Republican, are equally dedicated to this loathsome persecution makes this unending abomination infinitely worse, not better.
In the first part of this essay, I stated my objection to prosecution of the Bush war criminals in various ways: "By seeking to localize the evil in only one aspect of the much broader and more fundamental evil involved and within a falsely delimited period of time, the torture obsessives would thus whitewash the American project as a whole"; and: "So the selective pursuit and possible prosecution of a few of those who devised, directed and implemented the U.S. torture policies, but only those of recent vintage and not any of those that went before or are yet to come, will conveniently provide the United States with a clean slate upon which to write new chapters of crime." If there are ultimately any prosecutions in connection with torture, which I continue to strongly doubt will ever occur, certainly with regard to the highest-ranking officials, the message will be in effect: "We have investigated and punished those responsible for this great evil. Now America is Good again. We have restored America's soul, her true values, and her great moral virtue." These appeals to "America's soul" and America's "true values" are actual phrases I have seen repeatedly in various articles, columns and blog posts, and I will be discussing some notable examples of this remarkable idiocy in a future installment. Apart from the vacuous, meaninglessly empty phrases and hoary cliches employed by so many writers on this subject, the content of this view (to the extent such can be ascertained) is absolutely wrong: it is wrong as a matter of historical record, in terms of its analysis and methodology, and with regard to its evaluation.
Given my remarks about the great evil of torture, it should be obvious that when I say that any prosecutions in connection with torture will be only the worst kind of show trials, my meaning is precisely the opposite of those torture and/or Bush administration apologists who make the same claim. The apologists say they will be show trials because they will be unfairly selective, since many Democrats are also culpable. That much is true, but the apologists often make a further claim or claims: that the behavior involved was not torture (which is so disgustingly ludicrous given the specifics already available in the public record that I will not even bother to address it), and/or that the torture was "justified."
This is clearly not my view in any respect. Torture is a monstrous evil that is never justified. My objection to show trials concerning torture is not that these are not crimes, or that these acts are not evil. Instead, my objection is that, as monumental an evil as torture is, it is not the first evil, or the greatest one. The all-encompassing evil, the evil that is the bedrock on which a series of additional evils, including torture, has been erected is the system of governance involved and the nature of the State at issue: a corporatist-authoritarian-militarist State, one devoted to the expanding regulatory-surveillance State at home and to an unending series of aggressive interventions abroad. That is the evil that must be recognized and, if at all possible, rectified or minimized, if the series of evils and the unending path of destruction and death are to be ended.
To appreciate this, we must look at some history, including the history of torture itself, going back to before the founding of the United States. And we shall do that in the next installment.
posted by Arthur Silber at 11:05 AM
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