Sunday, July 10, 2011
This morning I came across a review* of a new book about the trial of Adolf Eichmann in 1961, now 50 years ago. Eichmann, you may recall, was the Nazi SS Lt. Col. who was in charge of arranging the transport of huge numbers of Jews to the labor and/or extermination camps. In 1960 he was located by the Israelis living in Argentina under an assumed name. Mossad agents went to Argentina, abducted him (they prefer ‘captured’ him), took him to a local prearranged safe-house, threatened him with instant death or a trial in Israel, drugged him to make him look drunk, escaped a police check-point, and passed him off to security personnel at the airport as a drunken El-Al employee heading back home to Israel. He was subsequently tried in Israel, condemned to death, and executed. (You can review Eichmann’s wiki entry here ).
I am going to discuss this case only in terms of its (remarkable) significance for SO Mania law. The reviewer, Douglas – a law professor – supports the author, Lipstadt, and I am only making comments based on his review-analysis of her book.
Let me say right off that I most certainly am convinced that the Holocaust took place, that it was a monstrous injustice, and that it was and remains a shocking affront to any genuinely human civilization, especially Western civilization. And that the Jewish people had always been active and valuable contributors to the European and Western culture that existed prior to Hitler’s rise and rampage.
Lipstadt seeks in her book to update the assessments made by the trial at the time half a century ago and subsequently.
She notes that at the time Hannah Arendt had attended the trial and reported on it and then written a book entitled “Eichmann in Jerusalem”. Lipstadt is not satisfied with Arendt’s account because “it was a highly critical account that itself has been the subject of great controversy” and Lipstadt (and Douglas) want to move around or beyond Arendt’s well-known analysis which, Lipstadt feels, has a “stranglehold” on public conception of the matter.
In writing her book Lipstadt says she was guided by her own (successful) experience countering a lawsuit by noted author David Irving in 1996, in which she prevailed against his assertion that the Holocaust did not happen. Between the Irving case and Eichmann’s case she finds a common thread: both Irving and Eichmann were anti-Semitic. Without centuries of anti-Semitism, she asserts, Hitler would have found it impossible to carry out the Holocaust and then the later denials that the Holocaust ever happened. (I’m not fully in agreement with that assertion but that is not relevant to the SO matters discussed in this Post.)
Arendt’s take on the matter was that the Israelis themselves failed to appreciate “the unprecedented challenge that acts of state-orchestrated genocide present to the legal imagination”; Arendt was not satisfied with the approach of the Israeli prosecutor, who focused only on his “treating the Holocaust as simply the most horrific expression of centuries of anti-Semitism”.
Part of the problem here was that David Ben Gurion, the Israeli Prime Minister of the day, sensed that by 1960 a generation of Israeli young were growing up with a dimmed awareness of the Holocaust that had happened before they were born. It would help, he realized, to provide some flesh-and-blood reminder; thus Eichmann’s trial was to serve not only as an act of justice (or at least the imposing of justice on a pre-determined conclusion) but also as a sort of educational theater for Israeli youth too young to remember the Holocaust. While this made some real sense in the unique matter of the Holocaust and Eichmann’s clear part in it, you can see where such a determining use of ‘justice’ to ‘educate’ about ‘monsters’ starts to lay a disturbing precedent for the type of SO Mania ‘justice’ and trials in our own era.
Arendt took issue with the prosecution’s strategy of simply asserting that “the history of the Jewish people is steeped in suffering and tears”. There was more to it than that, she asserted: the Holocaust’s assault on the fundamental canons of Western law and culture and – much more difficult for the prosecution – the impact on Western governments as they tried to deal with such a monstrous undertaking. (She was going towards the idea that in seeking to avenge or bring-justice in the matter of the Holocaust Western governments were faced with the torturous challenge of avoiding Nazi-like actions themselves. AND the solution hit upon – lethally – was that if you are a Good government then you can perform the same type of actions but they won’t be Evil because Good entities – governments or people – by their very nature can’t do Bad and Evil things … which is precisely the presumption Victimism tries to manipulate you into making: Victims are by definition Good, if only because victimizers are by essence Evil, and so whatever a Victim does or says may always – and always must – be considered as Good.
In the Israeli prosecution’s strategy I see a substantial thread of a then-nascent Victimism and indeed a group-identity of Victimism: one group has been (terribly and monstrously) wronged and in such a profound and extraordinary way that standard legal procedures could not be followed if a government were to bring (some form of) justice to the matter.
Thus the deliberate abduction of Eichmann on another nation’s sovereign territory, and the purposeful evasion and deception of that nation’s own authorities, constituted at the very least a blatant violation of Argentinian sovereignty and possibly constituted an act of war.
The Israeli courts as well as the prosecution were clearly aware of that problem, and attempted to avoid any discussion of the legality of Eichmann’s abduction/capture; claiming, in a legal gambit that in those days would not have found favor in the US legal system, that the legality (or illegality) of his abduction/capture had no substantive bearing on the legality and rightness (two rather distinct categories) of his trial (since the crime with which he was charged – “orchestrating genocide” as Douglas nicely puts it – was so awful).
And Lipstadt and Douglas are equally sensitive to the matter now: Douglas, echoing Lipstadt, refers to the entire Mossad episode in Argentina as “an audacious kidnapping orchestrated by Mossad” without following up on the fact that ‘kidnapping’ is, not to put too fine a point on it, a crime. And in this case a government-sponsored crime (although Israel would claim, when pressed, that the Mossad agents were “acting as private citizens” (vigilantes, therefore) – which hardly settles the matter). You note the neat verbal symmetry: since Eichmann ‘orchestrated’ something, then a sovereign government is justified in ‘orchestrating’ something right back at him.** And perhaps also that there is something ominous in that cheerible “audacious” that doesn’t quite mesh with the American approach to government wielding its power.
Lipstadt and Douglas prefer to quickly pass over the capture/abduction (it couldn’t at the time be called an ‘arrest’) and want the matter to focus on the trial.
In the trial, the prosecutor’s strategy was to “avoid the numbing arithmetic” by structuring “the Eichmann trial around the testimony of the survivors”. This – and Lipstadt and Douglas support it – was a gambit whereby “eyewitnesses to the destruction could connect the anonymity of state-sponsored killing with the suffering of concrete individuals”. And you can see here the introduction of a tactic whereby ‘stories’ or ‘narratives’ are relied upon to finesse any touchy legal questions of validity and to put a human face of pain and suffering to the charges. This, says Douglas the law professor, “was arguably the trial’s greatest contribution to posterity”.
I cannot but agree.
The trouble – prescinding from the state-sponsored kidnapping and violation of another nation’s sovereignty – is that the Eichmann trial dealt with an undeniable and genuinely monstrous civilizational violation, i.e. the Holocaust, about which no reasonable person could have any doubt. But when American Victimism and especially in its Sex-Offense mutation adopted this ‘template’ or ‘paradigm’ or ‘strategy’ or ‘gambit’, then there develops a huge disconnect: while ‘rape’ surely is a repellent crime, there is no such instant and undeniable presumption before any individual’s trial in any specific case that the alleged act actually happened. Holding former SS officer Eichmann responsible for his part in the Holocaust is one thing; presuming that any ‘sex offense’ is equally as certain to have happened and to have been perpetrated by the accused is another thing altogether. And if that is what ‘victim-friendly law’ or ‘victim-friendly rape law’ requires, then such a requirement must be acknowledged for what it is: a profound undermining of essential American legal principles.
Yet indeed that widely held ‘presumption’ is precisely what American Victimism tried to establish (and largely succeeded in doing so for quite a while, even up to now) in public opinion. AND, even worse, in American law where the presumption-of-innocence in regard to the accused (see my immediately previous Post) is utterly fundamental to American law and, consequently, cannot be abolished or undermined (by, say, being transferred to the allegating ‘victim-complainant’) without destabilizing and undermining the entire American approach to law and the rendering of justice.
And, of course, in SO Mania law, ‘rape’ is only one of an extensive menu of eligible crimes, most of them involving acts far lesser in gravity. (Though of course, to counter that inconvenient fact, the Mania sought to conflate all sexual crimes as equally terrible in their consequences and nature, such that any thought as to proportion or perspective could be swept aside as ‘quibbling’ and ‘insensitive’ and ‘re-victimizing’.)
The use of ‘suffering’ and ‘stories of one’s suffering’ by indubitable victims of a Holocaust that indubitably happened are fair play in the trial of an SS officer who indubitably commanded the special SS Office responsible for carrying out the selection-and-transport logistics of the Holocaust.
But again, you can see what might easily happen (and has, in the SO Mania Regime) when there is room for reasonable doubt (prior to the presentation of sufficient and valid evidence) as to whether an individual committed a specified act.
As Douglas puts it well enough, the Israeli prosecutorial gambit “imaginatively placed survivor testimony at the legal fore [sic] of the case”. Again, it is legitimate in the utterly unique setting of the trial of a key former SS officer in the matter of the Holocaust; but once ‘survivor stories’ are endowed with a sort of free-standing and indeed overriding evidentiary authority as if – to use Bernard-Henry Levy’s phrase quoted in the immediately preceding Post – they were “Gospel” then you are into something else entirely and have gone into dark and treacherous legal ground indeed.
Nor can the indubitably accurate term ‘survivor’ when used in the context of those who survived the SS camps be so easily and without-consequence appropriated by those who neatly arranged to have the Holocaust-paradigm (or game-plan) run in the SO Mania Regime.
Further, Douglas notes that another effect of the ‘survivor story’ strategy was to “transform the trial’s spectators [there were no jurors, only a panel of 3 Israeli judges] into witnesses to the witnesses, persons with a direct connection to the narratives of unimaginable atrocity”. Which in the context of a Holocaust trial of a key former SS officer facing camp-survivors is legitimate, especially given the civilizational import of the Holocaust for all Western peoples (if not also all human beings).
But when this element is transferred to individual trials in SO cases, where there are jurors as well as spectators (and given the media attention back in heyday of the SO Mania, the entire public were spectators) the whole thing mutates into a stampede and a form of emotional manipulation and perhaps even intimidation, which works (as the advocates and prosecutors would well know) against any rational and objective and dispassionate consideration of the actual facts presented in the case.
(Interestingly, and this is a brief and acknowledged digression on my part, Douglas compliments Lipstadt for doing an especially good job in describing “the resistance that the planned trial aroused within the American Jewish community, whose members questioned Israel’s right to speak as the representative of world Jewry”.)
Lipstadt also rejects Arendt’s now-famous assertion that Eichmann was not so much a zealous psychotic as simply a banal careerist who switched off his moral voice and did what he had to do to get ahead in his chosen career (i.e. Hitler’s SS, where he won promotion for overseeing camp-transports). Rather, Lipstadt insists, other later scholars now consider Eichmann to have been “extremely anti-Semitic and that these feelings were important motivators of his genocidal actions”.
I’m not sure that that has been so clearly established, especially since Eichmann would have had to publicly mouth a great deal of Nazi racial claptrap in order to keep his creds in the SS. (Arendt here may have been on to something that Charles Fair noted in his 1971 book “From the Jaws of Victory” about great but failed military commanders: they (and Fair specifically mentions Hitler among others) reveal themselves to be, when not ‘performing’ in front of an audience as Leader and ‘let their hair down’, utterly mediocre human beings, intellectually, socially, and of course morally.)
Rather, there would certainly be a need to insist that Eichmann’s deeds were not simply criminal in themselves, but that Eichmann himself was a monstrously flawed (anti-Semitic) individual. And this strikes me as similar to the Victimist need not simply to establish the accused’s guilt for having committed an act, but also to insist upon the profoundly (and incorrigibly?) monstrous attitude that the Sex Offender has toward his victims (and, to give a not-inappropriate feminist spin to it) all women. In the symmetry of the paradigm, being in one’s heart misogynist or patriarchal or anti-woman is the equivalent of the anti-Semitic element in the case of Eichmann.
Douglas does have one substantial bone to pick with Lipstadt, however. She “does not fully consider the legal legacy of the proceedings”. Douglas considers the 1961 Eichmann trial to be at least as significant as the 1946 Nuremberg trials of Nazi war criminals. The Eichmann trial, he says, specifically initiated in international law the establishment of “universal jurisdiction” whereby the profoundly awful nature of the crime (the Holocaust) by itself conferred a right of jurisdiction upon any government that chose to involve itself (which, of course, also neatly justified the Israeli abduction-capture-kidnapping after the fact). The nature of the crime alone was sufficient to justify any government in taking steps (legally, it must be hoped) to render justice. The Israeli court neatly considered Eichmann to be similar to “a Barbary pirate” – piracy being so odious a crime in the days of sailing ships that any sovereign authority that captured one was considered justified in dealing with the brute forthwith; he was a hostis humani generis, an enemy to the human species and “his crimes were so extreme as to authorize any court anywhere to judge” him.
I can’t point out strongly enough what a noxious element this would be in any attempt to transfer the Holocaust paradigm to, in matters relevant here, sex-crimes: the Sex Offender becomes an enemy of humanity (or at least of the entire female gender), and a presumptively incorrigible enemy at that.
I have pointed out in other Posts how American Victimism in the 1980s sought to adapt the Jim Crow paradigm: that ‘victims’ were the equivalent of Southern ‘Negroes’ willfully and deliberately and comprehensively demeaned, brutalized and oppressed by the Jim Crow Regime, and Sex-Offenders were the equivalent (in the script of the paradigm) of the leering, incorrigible white Southerners who ran the Jim Crow Regime. What I am saying here is that there was another paradigm, even more lethal if misapplied to individual sex-offense cases: the Sex-Offender (so often male) was cast not only as the white-Southerner against whom any and all the resources of the government could be brought to bear – and had to be brought to bear. He was also cast as the anti-Semitic Nazi who made a career out of indulging in the most horrendous of crimes against a gender (at least, if not the whole of humanity).
Also, Douglas does not address what Arendt had already seen half a century ago: that it’s an open and vital and ominous question for the West just what limits a government would impose upon itself in pursuing (as well as trying) any such individual once (however it was achieved) he was caught. Because it’s one thing to establish ‘jurisdiction’ and another thing to establish the ground-rules by which the capturing government would consider itself bound. Arendt was not pleased that Eichmann was tried in an Israeli court since, as a matter of principle, the Israeli government – especially as it sought to embody and represent itself as the avenger of the rights of all Jews in the world – could hardly have been considered an impartial judge.
Neatly, Douglas limits himself to using examples of universal jurisdiction that are confined to political dictators and their underlings: Pinochet, the Serbs in the 1990s Balkan strife, and – as a condescending aside – “the passion of Belgian prosecutors to seek indictments against just about anyone – Ariel Sharon, Fidel Castro, and Donald Rumsfeld among others”. This is a shrewd bit: while urging that all nations had a right to involve themselves against the perpetrators of ‘crimes against humanity’, he quickly reduces ‘inconvenient’ decisions to ridicule: the Belgians have had the temerity to seek such indictments against high-ranking members of both the Israeli and US governments (and Fidel Castro, tossed in for further yuks). Apparently the Belgians haven’t gotten the Memo that the Good by definition cannot do anything Evil.
But, he continues, the Eichmann trial (meaning the final outcome determined by the Israeli court) not only established universal-jurisdiction, but also the fact that it is best to conduct such trials in a country “where there was a strong organic link between proceedings, people, and place” so that the trial could more fully achieve the goals of exercising “retributive justice”, establishing “a baseline historical account”, and “as a means of conferring dignity on the lived experience of the survivors”.
In other words, in this type of enemy-of-the-human-race and crimes-against-humanity trial, you most specifically did NOT want the trial to take place in some ‘neutral’ or ‘objective’ setting; instead you wanted the trial of such an enemy-of-humanity to take place in the presence of the specific groups of humanity against whom he (perhaps she) had committed the crimes.
Thus in this type of case you precisely did NOT want ‘impartiality’ because of the existence not only of the civilization-assaulting crime but of the perpetrator’s part in it (an admittedly and clearly proven role as a key SS officer in the Holocaust process). The court's role in such a situation is indeed not so much as a finder-and-trier-of-fact as it is an instrument of almost foreordained retributive justice. But again, you cannot – especially in American law – enter upon a trial, or erect a species of ‘special-type’ trials and a special-category of offenses, in which any such presumptions apply because there is no way that such ‘evidence’ as obvious as Eichmann’s role in the Holocaust could apply.
So it’s a curious blend of an objectively universal-jurisdiction BUT a verrry specific (and no doubt emotionally charged) localization.
And I can’t help but notice that this is precisely the sort of double-stance taken in the SO Mania practice: a Sex-Offender is a horrible perpetrator of a horrible crime against all of a gender or all of humanity; yet you want to make sure that there are plenty of interested and highly-emotionally charged folks involved in the trial (and not just as survivors but as judges and prosecutors as well as jurors).
The Holocaust paradigm – even as applied to subsequent types of crimes-against-humanity – has some validity, certainly; uniformed or clearly-authorized agents or leaders of a government are easily identified as such, as was the crime of the Holocaust certainly. But this is not at all the case with individual sex-offenders accused of any of a hundred or more possible ‘sex offenses’ of whatever severity (or lack of it), even though the Sex Offender of myth and nightmare is spun implicitly as some domestic equivalent of the lifelong Pirate or Nazi death-camp official.
So, Douglas concludes unsurprisingly, Arendt is “proven wrong”. “When courts attempt … [to act from] … a position of Archimedean neutrality, the act of judgment threatens to turn into something arrogant and ultimately arid. The Eichmann trial, by contrast succeeded brilliantly.”
In other words, in these types of cases ‘neutrality’ is precisely NOT desirable. He describes such objectively handled cases, kind of weirdly, as “arrogant and ultimately arid”. I think what he means is that if you actually haven’t been specifically and locally victimized by a particular enemy-of-humanity, then it is arrogant to take his prosecution for yourself rather than letting those who were directly his victims take over the job; and that such objectively handled cases aren’t emotionally useful but instead are “arid”, dry and factual but with no – I’ll say it – oomph and pizzazz, such as is lent by a hefty dollop of ‘survivor stories’. Or, to use a high British government official’s assessment of the ‘justifications’ being passed around for the invasion of Iraq in 2003, the case was being “sexed up”.
This is a form of ‘victim-justice’ that borders very dangerously on vengeance and revenge. It may be justified in some monstrously and extraordinarily rare and massive instance such as the Holocaust perpetrated by the Nazis against European Jewry, but such a profoundly and dangerously regressive principle must be (or should have been) carefully and strongly boundaried, in order to prevent a general regression of Western Law back to the Dark Ages.
But instead, this lethal and volatile regressive mutation has been taken as some form of new cutting-edge ‘reform’ of Law under the pressures of Victimism and those interests that seek to advance their agendas through it. There are now generations of law school students who have been taught for all practical purposes that the dynamics of the Holocaust Paradigm join the Jim Crow Paradigm as the cutting-edge of legal ‘progress’ and ‘reform’ in this country, and applicable to domestic criminal law; many of those law school graduates are now not simply to be found among the ranks of attorneys and prosecutors (and government ‘public interest’ bureaucratic lawyers), but among the ranks of judges and legislators – at all levels.
We in a heepa trubble, as the saying goes.
Again and in conclusion, I’d say that this may work in matters of actual crimes-against-humanity (though it is still legally a vague and elastic charge). BUT it most surely is a treacherously dangerous principle to deploy in domestic criminal justice … or in a Sex Offense Mania Regime.
*I can’t access it online to give you a link. The one-page review is in the print edition of ‘The Times Literary Supplement’ (of London), June 24, 2011 edition, p.10, and the review itself is entitled “Bigger fish”, written by Lawrence R. Douglas. It reviews a new book by Deborah Lipstadt entitled “The Eichmann Trial”, ISBN 978-0-8052-4260-7.
**It’s not hard to see where the Eichmann trial precedent would also provide conceptual fodder for justifying various types of ‘rendition’ and ‘black ops flights’ in recent US policy.
I am making this Addendum on 11 August.
In light of the UK riots, I add here that it is not at all irrelevant that this trope of ‘no impartial and objective justice’ that we see introduced in official proceedings here in the Eichmann trial found its way into – among many many other venues – the UK philosophy of policing.
As this article indicates, in 2002 the UK Association of Chief Police Officers issued a “hate-crime manual” that suddenly overturned the entire concept of impartial-policing and impartial-enforcement of the laws. Instead, such impartial justice and law enforcement was scorned (by the Chief Police Officers!): They actually used ironic quotes to say that “colour-blind” policing is policing “[T]hat purports to treat everyone in the same way. Such an approach is flawed and unjust. It fails to take account of the fact that different people have different reactions and different needs. Failure to recognize and understand these means failure to deliver services appropriate to needs and an inability to protect people irrespective of their background”.
This concept of the wrongness of objective and impartial justice and enforcement is precisely what Professor-Lawyer Richards crows is one of the great contributions of the Eichmann trial to Western jurisprudence.
The linked article goes on to quote the Chiefs that all police officers will be “retrained” and if they have any problems with this whole thing they will be “disciplined”.
In terms of the UK riots this past week, it resulted in one senior police official complaining that the weak police response was due to the police not getting orders from politicians. You might wonder why – confronted with clear evidence of a riot-in-progress – the police would not know what action to take. BUT if the police have now been hobbled by their Chiefs’ (no doubt politically demanded) embrace of Identity Politics’ and multiculturalism’s ‘partial policing’ rather than ‘impartial policing’, then it’s clear that in the face of rioters with ‘backgrounds’ that must be very carefully ‘respected’, they literally did not know just how much ‘law enforcement action’ they could take. And the riots rolled on for days.
Tuesday, July 5, 2011
I am going to discuss the case only from the point of view of its relevance to Sex offense Mania dynamics; I am not ‘for’ or ‘against’ him for this or any other accusations that may have arisen or may arise. Nor, as always, am I in this for ‘politics’ (although, as you may have noticed, once ‘the sexual is political’ – on top of the personal being political – then it’s hard not to sound political when you try to talk about almost anything).
He got the full-court Mania press in May: a perp walk, shrewdly dropped prosecutorial tidbits to a press that long ago gave up investigative reporting for the ‘access’ that would enable it to get all the ‘tips’ it needed to ‘report’ the case the way the prosecution wanted it to go. He had to resign his position at the IMF and for the rest of his life, if you look him up on a search engine, well … don’t trust everything you come up with in response to search-engine inquiries: their marvelous algorithms and monster banks of searching computers assure quick results, but not accurate ones; they don’t vouch for accuracy. Thus the Information Age is not properly named the Accurate Information Age … although, is inaccurate information really properly termed ‘information’ in the first place? Too much philosophy perhaps.
As I said, he was the now familiar (and apparently culturally necessary) Monster-du-jour in May.
But that was then.
On July 1st he was released from house arrest and on July 5th it is expected that the prosecution will move to dismiss all charges. The accuser, apparently, has insurmountable credibility problems. Perhaps, if he’s lucky, he will get from the government and the media the famous Rosanne Rosannadanna dismissal: NEVVVVVVVVERRRRRRRRRRR MINNNNNNND. He is an egg broken in order to make a Good and Necessary omelette, and he should just take consolation in that thought.
Such is life in times when ‘politics’ is ‘everything’. Because ‘politics’ automatically means ‘government involvement’ and ‘government involvement’ always means the deployment of the sovereign coercive power of the Leviathan: either ‘hard’ – through criminal laws and regulatory engineering, or ‘soft' – through the manipulation and deformation of public opinion through government pressure (aided, in the worst cases, by an eagerly subservient ‘press’ that is happy just for ‘access’).
The Framers didn’t go the ‘politics is personal’ route because they knew that down that path lay increasing and intensifying government involvement (and engorgement). And the whole American idea was to make sure that Leviathan was kept in its cage; the development and interaction of individuals within culture and society and family and community … these were the far more vital forums, the field of rich earth in which the formal machinery of government was merely a single tree planted in the soil.
Ideally, the informed People would do the work of tending to culture and society – HAD to do that work – and having matured a ‘change’, would make the preferences known to the elected representatives, who would then do their own deliberating at the official level and make such laws or policy as had percolated up to the government.
The American Experiment placed much responsibility on people behaving actively and competently as Citizens; ‘leadership’ by the government was not the name of the game because the Framers were of the opinion voiced a century later by Emiliano Zapata: a strong leader makes a weak people.
In the late 19th century, this country home-grew its own anti-Americanism with the Progressive conviction that ‘people’ cannot be trusted to function as The People (they were too distracted, too ignorant, too deprived, too needy, too selfish, too whateverrrrrr) and that, consequently, the best solution is a government of enlightened experts who would rule benevolently and wisely.
Teddy Roosevelt realized that the government, like any decent Victorian gentleman of substance, would have to step in to curb the corporations in favor of public health (the trade-off being that the newly-strengthened government would also reach out into the world arena for markets and power); Taft pleasantly and piously hoped that the ‘right sort’ would keep the engorging government working for the benefit of everybody – somehow; and Wilson was convinced that only a Great Soul with a Great Vision could run the government (the obverse being that people should recognize the undeniable wisdom of the Great Soul and back him at the polls). It was a strenuous and bumpy ride for that quarter of a century.
And as if that development weren’t lethally challenging enough to the American Vision, the Progressives here were slowly pulled into the revolutionary impatience and elitism of Leninist praxis: the masses must be saved by vanguard elites who will impose the revolution on the masses on behalf of the masses. This was a point not fully appreciated by the masses because in the beginning they were assured that the revolution would be imposed on the wealthy landowners and aristocracy and moguls; by the time they realized that the revolution would be imposed upon the masses themselves … it was too late, since Lenin’s vanguards – eager and self-assured – had control of the government’s sovereign coercive power.
And suddenly, culture and society as well as economic arrangements were ‘disintegrated’ root and branch by the vanguard elites. And now all you had to do to become designated ‘an enemy of the people’ was to have the merest doubt as to the wisdom of the revolution or its hydra-headed agenda.
When the elitism of American Progressivism blended with the revolutionary vanguardism of the Leninist Method and Vision in the early 1900s, and then the unholy brew was irradiated to white heat in the Identity Politics and ‘organized advocacy’ pressure-politics starting in the early 1970s … the country was sent spinning off its Founding axis like a Ferris wheel cut loose from its anchoring in the base of solid ground.
I don’t mean to distract you from SO matters with history, but I think it’s vital to see just how the SO Mania managed to get hold, and just what is at stake here.
Anyhoo, on to DSK.
As I said, they rolled out the full-court Mania press on him, and then – in an uncomfortably brief span of time – had to call the whole thing off and back away. Manias and their enablers don’t like that sort of thing: no matter how much you’ve lulled people into accepting your ‘spin’, you want to avoid anything going public that might ‘break the spell’.
Alan Dershowitz has an article precisely designed to do some spell-breaking. He’s particularly concerned – as an attorney – with reasonable doubt, the presumption of innocence, perp walks, and the insufficiently-recognized ‘singing indictment’.
As a prosecutor you can’t make any assumptions about the case “until all the evidence is in”; and you most certainly can’t make the unstated presumption that whatever “the alleged victim” says is true ‘just because’. But, of course, this is a key element in the Mania: as an advocate you most surely DO want people to make assumptions and prejudgments – yours – in a case. And in the kabuki that these things have become, you most definitely want the public to be sympathetic to ‘your’ victim (indeed, one of the first indications that the Mania was losing some of its grip was when we began to see “alleged” appear before “victim” in at least some news reporting). And, by the by, ‘sympathy’ means ‘totally supportive’; anything less – even the merest whiff of doubt or the desire to Kick Tire – is insensitive and might even ‘prove’ that the doubter is some sort of perp himself.
The dangerous point here, on top of everything else, is that the Mania-shortcuts in thinking and processing – which are bad enough when they operate deformatively in the realm of public opinion – have now become the standard level of ‘thought’ in the legal profession itself. And for a nation ostensibly “of laws” and not “of men” (or folks’ hasty, unprocessed or under-processed opinions) this is a terrifying development.
Indeed, as Dershowitz points out, the prosecutor not only made gross (but perfect and Correct, from a feminist-victimist point of view) presumptions about DSK’s guilt, but then went and made public statements putting the authority of his Office and of the State behind the veracity of the allegant’s claims and vouching for her character.
And again, this is highly disturbing from the point of view of impartial and objective justice and of ‘equality before the law’ and the presumption of innocence, BUT it is precisely what the Correctness regime requires in this type of matter: it is not the Law’s job to find out who’s guilty (the revolutionary dogma has already defined that: it is the class-gender of ‘men’) but rather to be the biting edge of the revolution, chewing up its opponents and its ‘enemies’ (in the feminist-victimist revolutionary dogma, therefore, the aforesaid ‘men’). This is ‘sensitive’ and ‘victim-friendly’ Law. Any Russian of the 1920s would recognize it in an instant for what it is: a toothy ravenous beast indeed.
Dershowitz raises plainly a problem that has not received as much attention as it deserves: “Special sex prosecutors and special rape prosecutors are often agenda-driven”, he notes. I wholly concur. This oh-so-speshull idea arose after it became clear that even under Mania pressure from public opinion and from the law-schools themselves (which were becoming increasingly Mania-friendly) there was still too much concern in the ‘normal’ courts for Constitutional due-process and the ancient protections of the common-law and impartial and objective justice generally.
Under the guise of taking the burden off ‘normal’ courts, the ‘special court’ idea was introduced. It was put forth as something like a Housing Court or a Small-Claims Court, where non-criminal matters and perhaps matters dealing with the low-level intricacies of rental and housing law would be best handled by judges specifically familiar with such matters.
In some places the Domestic Violence Regime was permitted ‘special courts’ – although it quickly became clear to a Tire-Kicking eye that this was not because there was a hefty body of established law and precedent that a judge would have to know (just the opposite, in fact) but rather that normal judges (trained in the American and Western concept of Law and Justice) couldn’t be “relied upon” (to use Lenin’s thought here in regard to revolutionary courts and jurists) to provide the “correct” decisions. Instead, you wanted true-believers and ‘vanguard cadres’ as the major players in these special-courts, as judges and prosecutors as well as (oy) defense counsel whenever that was possible. And you then added to your ‘insurance’ by flooding in a bunch of ‘advocates’ who also could put some weight on the scales.
Very similar to Hitler’s strategy in Germany of the early and mid-1930s, when he discovered that ‘classically’ and ‘traditionally’ trained jurists were daring to find innocent defendants whom the Party and Reich wanted found guilty. The solution was to expand the role of the Party-court: no longer simply a court to judge Party-members guilty of Party-rule infractions, the authority and writ of these courts were extended to embrace more and more types of cases where the Reich would not accept anything less than a Guilty finding. The courts were staffed with ‘reliable’ personnel, among whom the most famous was Roland Freisler, an ex-Communist turned Nazi who truly-believed that Law is merely whatever Hitler and the Party said it was. (Ominously, the Reich also declared it legal for the Gestapo to take into custody any prisoner it wished, even if s/he had just been declared Innocent or Acquitted by a formal court, and to then haul the prisoner away in a van waiting at the foot of the courthouse steps. Does that tactic ring any recent bells?)
BUT of course, sex-offenses were precisely not eligible for such innocent and well-intentioned and reasonable solutions as special-courts-like-Housing-and-Small-Claims-courts. There are monstrous consequences at stake because the sovereign power can be deployed to deprive a Citizen (and so often a man) of property or even freedom. Nor can you give full credence to the frakkulent theory dredged up only a couple of decades ago that the ‘ex post facto’ requirement of the Constitution only applies to criminal law and not to civil law. Recall the early enabling Mania legislation’s mantra: it’s not criminal, it’s civil; but once the sovereign power – regardless of whether operating in the criminal or the civil mode – is deployed to actively deprive a Citizen of some good which, absent the working of the government power s/he would continue to enjoy, then ‘ex post facto’ kicks in: its intention was always to prevent the government from going back and changing the rules after the fact, such that they applied retroactively to the cost and detriment of a Citizen or class of Citizens. Huge consequences were at stake. And still are.
Thus too it can’t be claimed that these Mania laws are ‘merely regulatory’ and ‘not punitive’. Any deployment of the sovereign power that somehow renders you less in possession of goods you would otherwise have possessed (including your good name) is ‘punitive’, regardless of what crocodile tears the government sheds in its plea that it only wants to ‘regulate’.
It might be argued that since an SO committed a crime in the first place, then (so often) he has no right to expect his good name to remain untarnished, since he is now a convicted felon. However, in the first place many persons have a felony conviction in their past (even on your own street perhaps) and yet the passage of time has worked to heal that. The Registry concept negates that subtle but very real aspect of ‘good name’. Second, of course, the recidivism Findings on which so much of the Mania legislation was based are now largely and certainly professionally acknowledged to be grossly inaccurate, rendering the Mania laws liable to a charge of being not only willfully unwise but deliberately unjust in their on-going continuation if not also in their original erection as laws in the first place.
Neatly, Dershowitz calls special-court types “Nancy Grace prosecutors”, after the cable-TV legal ‘commentator’ whose show is slickly and melodramatically based on the presumption that everybody’s guilty of something anyway and so there’s no such thing as innocent. It a great line for yuks, but it’s fatally dangerous to Western justice.
Like the Catholic presumption that everybody bears the burden of Original Sin, the Framers were even more certain that everybody could be guilty of ‘something’ as some point in their lives – otherwise there would be a ‘perfect’ class of Citizens who were not objectively* guilty of any violation of any law ever. Instead, Western law matured into the focus on some specific act upon which a person might be judged; no presumptions of guilt were to enter into the sober evaluation of the evidence in regard to the specific act(s) listed in the bill of indictment.
And thus no presumptions of some sort of legally actionable ‘general guilt’ could enter into Western law; an individual could only be prosecuted for a proven act or acts of a criminal nature.
But revolutionary law in the Leninist mode was hell and gone from Western law: for the convenience of the revolution – the Great Good, it was presumed – persons could be ‘guilty’ simply because they belonged to a certain economic class (in Lenin’s time; the deceptively-trivially named ‘gender wars’ here in the 1970s simply substitutes a gender – i.e. male – for an economic class and proceeds to apply the Leninist legal ‘principles’ and ‘solutions’ ).
So – whether a viewer of such shows is a New Left feminist or a law-and-order Rightist – the warning must be taken to heart: cutesy and yukksy as the ‘Nancy Grace’ approach is, it is – like some sort of horror show – a fuzzy and warm avatar of a terribly lethal, anti-Western, anti-American approach to Law and Justice.
And Dershowitz wraps up the Grace point neatly when he observes that “the prosecution presented its case in public as if there were no doubt about the alleged victim’s credibility or the complete guilt of the alleged offender”. The prosecutor, in other words, was making a perfectly Correct presentation. And that’s how deeply the Mania approach has deformed not only the practice of American jurisprudence but the education of its professionals as well. (I am going to bet that had this prosecutor presented this case in law school, and tried to exercise the prosecutor role in the ‘traditional’ mode, that prosecutor might not have passed the test and graduated from law school at all.)
Dershowitz (and who else but Nixon could go to China, as Spock once famously asked Kirk as the latter was considering refusing an assignment to conduct treaty-negotiations with the Klingon Empire) then makes a suggestion that goes to the heart of the victimist-feminist legal game as those advocates have evolved it here: the names of those who make allegations of rape SHOULD, he says, be publicized; “the press is dead wrong not to do it” because “it is absolutely critical that rape be treated like any other crime of violence”, i.e. that other persons who know the allegant/accuser can come forward to present what they know (or think) of the allegant/accuser’s past history. Otherwise, Dershowitz notes, you undermine the “presumption of innocence”.
What I take him to mean is that by claiming that a crime is sooooo awful that ‘traditional’ legal protections do not apply, or soooooo personally painful that an allegant/accuser should not have to be publicly acknowledged as having experienced it, then the presumed awfulness of both the crime and the painfulness must be allowed to trump those ‘traditional’ legal protections and (though they didn’t quite like to say this out loud) the ‘presumption of innocence’ itself.
Or rather: they wished to transform the presumption of innocence from the accused to the accuser, which turns American justice on its head since the accuser is by definition in league with the government (the prosecutor) and to presume that the accuser is Pure, Without Sin, Good and Innocent is to accord such indulgence to the government itself – which would have most of the Framers spinning in their graves. To accord such indulgences to the ‘revolutionary’ government, however, is not only what Lenin would approve but what he demanded.
Or rather: they wished to transform the presumption of innocence from the accused to the accuser, which turns American justice on its head since the accuser is by definition in league with the government (the prosecutor) and to presume that the accuser is Pure, Without Sin, Good and Innocent is to accord such indulgence to the government itself – which would have most of the Framers spinning in their graves. To accord such indulgences to the ‘revolutionary’ government, however, is not only what Lenin would approve but what he demanded.
And then Dershowitz comes right out and says that by not publishing the name of the alleged victim “the press conveys a presumption of guilt”.
(And he adds as professional aside that “the next time I defend a case where there’s any chance of a perp walk, I’m going to federal court to get an injunction against it”. Notice that he says ‘federal court’ without reservation; he considers the perp-walk to be on its face and by its very nature an unconstitutional violation of the presumption of innocence. Good for him. Of course, for those who are already convicted in Mania courts, other more tortuous paths must be taken to achieve any redress.)
He concludes by giving the prosecutor’s office in New York credit for conducting a vigorous investigation and making the results public. Although I wonder how many less influential persons have had their lives wrecked in the past decades because the prosecutor in the case figured s/he could get away with the Correct scams? DSK was too big a fish to try to fry on the Correct griddle. That was not so with, say, even Julian Assange – case still up in the air – since a) Sweden’s legal system has been even more lethally compromised by feminist-victimist ‘law’ than America’s and b) Assange had ranged against him a powerful counterforce hiding behind the pretext of the sex-offense matter: i.e. the U.S. government that was trying to stop him publishing leaked documents that exposed its doings to the world-public.
Then Bernard-Henry Levy, noted popular French commentator on things American brings up five points about this case. Let me say here that I am not a complete fan of his; but as a Frenchman he raises points about American law (thus Mania law) and does so from the perspective of a France that underwent the Revolution in 1789 and the Terror that followed (both of which historical events came to influence Lenin 110 years later).
His first complaint is “the cannibalization of Justice by the Sideshow”. Here he refers to, among other things, the arrival of the accused DSK at the courthouse where (by amazing coincidence) there were battalions of NYC hotel chambermaids demonstrating against him replete with placards and slogans. This was a “protest that had been orchestrated and scripted”, he decides – and I would say that you don’t have read tea-leaves to come to that valid assessment: it is Agitprop 101 and Propaganda 101 and right out of the revolutionary playbook that Saul Alinsky watered down (only a bit) here in the early 1970s. If Level-Four advocacy includes the deliberate intent to manipulate public opinion for your own group’s purposes – thus rendering you far more (and less) than simply an honest, concerned citizen - then too the herds you arrange to stampede are far more (and less) than simply well-informed, concerned citizens. Indeed, those demonstrators may mostly be so unaware of the reason they are there (beyond, perhaps, some general ‘desire to support the cause’) that they really have been reduced to – and in some real way have reduced themselves to – herds stampeding like in the old Westerns.
His second complaint is “the Robespierrism of this judicial sideshow”. Robespierre, as you may recall, was the dimunitive but zealous French activist who was instrumental in moving the French Revolution into its Reign of Terror phase, over which beast he vigorously and zealously presided … until it turned on him and he himself was arrested and executed in 1794, after a run of only a couple of years.
What Levy observes here, with a nice acuity, is that the accused DSK was “turned into an abstraction” just like in the Revolutionary Terror that once gripped France. The accused back then was deprived of individuality and personhood, and was simply defined for the Revolution’s purpose and convenience as an abstract member of a class – the class of aristocrats. In theSO Mania’s Terror, the accused is (most often) turned into the abstraction not of blood or economic class but rather of gender: he is ‘a man’ or a ‘male’ (and - as those would say who swill Chardonnay or chai while having their consciousness raised in a supportive klatsch – ‘we all know what THAT means’).
I would add that this is a triple-abstraction: He is a ‘man’ (playing to the feministical); he is a ‘perp’ (playing to the law-and-order folks of both Left and Right); and he is a ‘sex offender’ (playing to all the foregoing plus anybody susceptible to horror movies or capable of thinking cartoonishly and thus scaring themselves into a frenzy).
As Levy puts it, in regard to DSK, they had succeeded in” transforming him into an abstract symbol, and, as the literal incarnation of that symbol, tailored his person to fit the skin of all they had decided to purge from society of the Ancien Régime”. The Ancien Regime in America’s current revolutionary excitements being that of ‘patriarchy’ and especially as patriarchy manifests itself in the power and oppression of sex offenses.**
America, he says, has pushed the already lunatic Robespierrism to “the extremes of craziness”. Which revelation is, to the SO community, no surprise at all.
And, on the reverse, “this woman was the allegory of all women who are not only battered and humiliated but also poor and immigrant—their words, silenced too long, finally expressed through hers”. Once again, you wind up with symbolism rather than actuality – which, especially when translated into the legal forum, is fatally dangerous.
And one cannot help but think of Red Chinese opera: the only plot being the good ‘masses’ or the good ‘cadres of the Party’ oppressed by the evil landlords and traditionalists until, inevitably, the cadres triumph and red flags bust out all over, along with a rousing musical number. There is not a single unpredictable element in the whole rigamarole because Correct dogma has already figured out everything you need to know about how the world works.
The legal forum thus becomes, Levy astutely realizes, an opposition not of persons but of abstractions and concepts. It is not this individual’s claim versus this individual’s claim but rather the sovereign claim of ‘the masses’ versus the utterly evil oppressions of the landlords and the traditionalists. If you are one of the masses, then revolutionary justice dictates that the court must speak for you by convicting the other guy. If you are one of the listed ‘enemies of the masses’ (read your memos: the list is subject to large and frequent change without notice) then revolutionary justice dictates that the court must strike you, using the weapons of legal procedure and law to do so. I don’t think enough Americans realize just how many ‘advocates’ really do think this is the way a legal system should work … and after all these decades, and with Beltway support, a lot of such people are now sitting on benches or hold faculty positions in law schools or are salted thickly in the Federal bureaucracy.
(I have often spoken of ‘elastic definitions’ in the SO Mania: it is sobering to recall that Lenin’s and Stalin’s definition of ‘kulaks’ (those peasant farmers who were actually successful at living a little above subsistence level) changed: from owning several cows to owning one cow to owning more than a certain number of chickens. Oh, and if you could read – that was a sure sign and warrant for death or Siberia.)
His third complaint is Barresism. Maurice Barres was a French nationalist of the 1890s and early 1900s who hated, among other types, Jews. When in 1894 a cabal of traitorous French general staff officers (selling secrets to the Germans) framed a French captain who was a Jew – one Alfred Dreyfus – for the treason, Barres declared himself ‘for France’ and therefore against ‘the Jew’: “That Dreyfus is guilty I deduce not from the facts themselves but from his race”. It is a reprehensible and almost imbecilic approach to both Justice and national policy but that’s the way Barres saw it. It was to many a clear indication that there was something gone very wrong in the French character and in French justice.
Now make one set of substitutions in the statement: That the male is guilty I deduce not from the facts themselves but from his gender. This comment is taken as gospel (so to speak) truth in Correct academic and elite circles in this country today, including the circles of the Law. It was formally ascribed to as recently as the Duke Lacrosse case of 2006, during the course of which a large chunk of the Duke University faculty signed a public statement insisting that ‘facts don’t matter’ and the victim-woman must always be upheld in this sort of thing.
His fourth complaint is the current American “sacralization of the victim’s word”. As Levy puts it: giving voice to the lowly is one thing (and he supports it fully) but giving that voice the full force and authority of Gospel is something else altogether. He is absolutely right. And you cannot conduct genuine and authentic Western justice if you enter legal proceedings on the assumption that one side cannot lie (or at least cannot be allowed to be discovered in a lie). You derange the entire system and undermine its credibility (and to some extent I see that happening in regard to the Sex Offense Regime as time goes on; but also to the integrity and credibility of the professionals who must administer it and of the politicians that supported it).
Curiously and eerily, the same types who denounce the infallibility of the Pope (such as it is)*** insist upon the infallibility of the Victim. I get a bad feeling about it.
To be a “victim of society”, Levy notes is one thing. To be a “victim of aggression” is another. I think what he means here is ‘victim of an alleged crime’. You can go into the public forum and make a case that you are oppressed by society; in the public forum there are no rules – beyond those of honesty and truth – that prevent you from saying whatever you like to try to persuade people. BUT in the legal forum, when you claim you are the victim of a crime – THEN a different and far more stringent set of rules apply: the rules long ago devised in the West to prevent the arbitrary and groundless and unjustified deployment of the sovereign government coercive power against citizens.
It has precisely been the goal of Mania advocates to weaken these ancient rules in the legal forum, to give themselves and their agenda more ‘space’ and ‘voice’. It has been the long-standing policy of the Beltway to support this scabrous gambit of weakening vital protections against the government. And it is there, thus, that the National Nanny State and the National Security State are joined at the hip in both desiring some form of Nanny-Leviathan government, presided over by vanguard elites who will impose what upon the citizenry whatever they think are the ‘best’ or ‘right’ laws and policies. And again, you see what the SO Mania community has been up against: this is a profoundly regressive and well-organized and deliberate attempt to undo the fundaments of the American Vision and the achievements that in the West took millennia to bring about.
His fifth complaint is really an observation: that the victim in this case is the Presumption of Innocence itself. I think it goes even further than merely the Presumption of Innocence. That is only one of the fundaments and foundations that have been targeted as ‘obstructions to the revolution’ in the past few decades. Hidden under the artful melodramatic kabuki of victimist agitation as it has mutated in this country a far more dangerous campaign has been waged – with the witless or calculating aid and comfort of the Beltway – against the heart and soul of the entire American Vision.
This is what the SO community is up against. Stay in the fight, I say.
*Consider drivers and speeding: there are probably no drivers in the country who are not objectively guilty of speeding, i.e. they have indeed driven over the speed limit at some point, but perhaps were never caught and ticketed and therefore have a ‘clean’ driving record. So all drivers share a curious double identity: on the one hand they know they have done their share of driving-over-the-speed-limit and thus are objectively guilty (even if they have never had to declare or endure a formal court classification as Guilty); but at the same time they want safe driving conditions and realize that some drivers really do go too-far-beyond the limit.
It is the conceptual scam of Victimism as it has evolved in this country that it quietly manipulates you into thinking that there are two utterly separate identities: those who do Evil (and are perps) and those who only do Good (and are victims). And that it would be reeely reeely great if the world could get rid of the perps and then there would only be the Good. But, it seems to me, as Jesus said about the wheat and the weeds: you can’t really go pulling out one without pulling out the other so let them grow together until Somebody who really knows the score comes for the harvest.
I think, as well, that buried in there is also the awareness – which the image of the wheatfield doesn’t quite capture – that in the human case each human is both wheat and weed at the same time (although in different proportions and so forth).
**I still say that historians are going to wonder – and laugh – at these generations of America. How could a country ostensibly dedicated to so many upstanding values of Western Civilization – AFTER the clear examples of the French Revolution, the Communist Revolution (Leninist and Stalinist variants), the Maoist Cultural Revolution, and the indelible examples of Fascism and Nazism – allow itself to be so thoroughly perverted that its own government could endorse what amounts to a revolutionary putsch by (putatively) one half of the citizenry – distinguished on the basis of gender – against the other half, and with a disturbingly large chunk of the Citizens apparently approving – or at least accepting – that such a gambit, not only extended over decades but also continually enlarged – was not simply a good idea but a major step toward the imposition of The Good … ??? And that the required deconstruction and disintegration of the very fundaments of Western and American civilization and culture and society could only have desirable consequences, and no negative ones, since it was all intended to serve (the putsch’s concept of) The Good … ?
***This is not intended as a wisecrack. The trouble facing the Church in regard to Vatican Council 1 was a tendency among European Ultramontanist Catholics (i.e., those who were idealizing the Pope as against their own national leaders) to take everything the Pope said as absolutely true and binding on all Catholics as a matter of conscience. To counter this unhealthy and dangerous trend the Council sought to dampen that tendency by putting a clear limit on Papal infallibility: it ONLY comes into play when the Pope goes to the (extreme and rare) point of speaking formally and deliberately and with curial concurrence on a matter of fundamental faith and morals; and thus infallibility does NOT come into play very often at all.