Monday, March 19, 2012
Apologies for the lack of Posts recently.
Before I begin this Post’s subject, I’d like to recommend a Post on my other site. I have been doing a mini-series on the Radical Feminist thinker (and law professor) Catharine Mac Kinnon, whose 1989 book “Toward a Feminist Theory of the State” was one of the first to present itself as a scholarly compendium of the essential Radical Feminist thinking that purported to justify a war on men and “patriarchy”.
In the process, she insists on the pursuit of the male perp, whose primary instrument of dominance, oppression, and hegemony is “heterosexual sex”, every single instance of which is nothing more than the commission of a criminal act designed to continue the subordination of ‘women’ (as she defines the term), and thus requires the most vigorous and invasive and impositional action by a government (Executive, Legislative, Judicial, and bureaucratic) that does not consider itself bound by “the rule of law”, which, she says, is nothing but an excuse for continuing “patriarchy”.
You may ask yourself why bother with ‘ideas’ from a book written almost a quarter of a century ago. To which I would reply: a) within a year of its publication we saw the rise of the Domestic Violence Regime and the Sex Offense Regime (and registries); and b) all of her ideas were incorporated into the basic laws and policies enabling these Regimes and those laws are still on the book and – worse – those ideas form the ‘knowledge’ upon which so much of government acts when it deals with these matters. When making laws or deciding cases or making up policy and regulations, the Beltway denizens are operating on the vision that MacKinnon first put out there in 1989.
The Post about MacKinnon deals with the final section of her book, where goes into the legal philosophy that – she insists – justifies everything that the government would actually then do shortly after her book came out.
All of the other Posts in the mini-series on MacKinnon are very recent and by scrolling down the list of recent Posts you can read them if you wish. It is in this book, published on the cusp of the 1990s when the era of ‘governance feminism’ under the Clintons would bring in with it both the DoVi and SO Regimes, that you will find the ‘philosophical justifications’ for so much that has happened and still continues to happen.
Now to the matter for this Post.
The current (March 2012) issue of ‘Harpers’ contains an article about Ivan Demjanjuk, here.
Demjanjuk was (he just died this past weekend, on March 17th) a Russian POW from the Ukraine, captured by the Germans in 1942, who took the German offer to work for the Reich (the alternative was to probably die in the German POW camps). He trained as a camp guard, was assigned to Sobibor, emigrated to the US in 1952, became an auto worker in Cleveland and a citizen (in 1958) when he changed his first name from Ivan to John, and lived out his life until in 1977 the DOJ’s Office of Special Investigations (OSI) sought to strip him of his US citizenship on the basis of his having been a camp guard at Sobibor during the war.
But in working with the Israeli police to maybe get in touch with Sobibor survivors who could testify as to his identity, the OSI received an odd report from the Israelis: while none of the then-living Sobibor survivors (it was a small camp, as camps go) could identify him, an increasing number of Treblinka survivors were identifying him as “Ivan the Terrible”, a guard who literally operated the gas-chambers at Treblinka.
I have previously posted on the relevance of Adolf Eichmann’s 1961 trial to later developments in victim-friendly or ‘victimist’ law and legal procedures, and thus ultimately leading to the SO Mania Regime. I want to look at this case from that point of view.
On November 30, 2009, in Germany, Demjanjuk’s last court trial began.
It was popularly dubbed “the last great Nazi-era war crimes trial”, although as the article’s author notes, that moniker is not accurate on almost all counts: Demjanyuk was a Russian and not a Nazi; the trial was not for war-crimes since the extermination of camp victims was not envisioned as a war-crime when it was committed (and even now is more properly a ‘crime against humanity’).
And in the matter of ‘greatness’, the author questions whether this then 90-plus year old man, a low-ranking guard, could really and legitimately be considered as standing equal to the high-ranking Nazi architects of the Holocaust and the entire camp extermination Plan.
But you have to work with what you’ve got, in ‘symbolic politics’ as in ‘symbolic justice’ – where you want to ‘send a message’, first and foremost, and the particular facts and issues pertaining to the particular accused that you’ve got are distinctly a secondary matter.
Imagine, for example, in this regard, if Islamacist operatives were to stage a trial of a captured US private as if he were legitimately the author of the Global War on Terror. Sure, they’d like to have one of the Bush Administration biggies in front of their videocam, but they’ve got to make the most of what they have on hand. (Not that this problem will make much of a difference for the captured accused, as the SO community well knows.)
In the courtroom, the largest and most secure available, “the atmosphere is festive” – which is never a good omen for the conduct of decent justicial proceedings and hints at far deeper (and yet also shallower) and much more powerful forces operating on the proceedings (a dynamic not unknown to the SO community).
At the beginning of the second session in the afternoon, the accused is no longer in a wheelchair as he was in the morning’s opening session, but rather is flat out on an ambulance stretcher.
This instantly attracts the ire of the attorney for the victims’ families (allowable in German law) who – rightly – is concerned for the ‘image’: “The picture it projects is disconcerting”, he objects. And he’s right. So much of these ‘show-trials’, designed more to ‘send a message’ than to actually deliver serious and accurate justicial process, is concerned for ‘image’. Thus, as the SO community knows, the perp-walk, the media-saturated images of weird, un-natural-looking monster stranger sex-offender that have been neatly implanted in almost everybody’s mind before the trial even begins … all part of the show.
Nor do I pass over the fact that the defense counsel realize this too, and try to work the dynamic in their client’s favor.
A compromise is eventually worked out: the accused may stay on the stretcher, but must be propped up at a 45-degree angle. It simply wouldn’t look right for the weight of the law to be seen as coming down upon a 90-year old man flat on his back on a stretcher.
The old man then starts into a demanding regimen of making contorted though silent expressions of physical pain. The general consensus, the author notes, is that the old boy is faking it and “the defense is overplaying its hand”. I would not disagree.
But what can a legal system expect? It has already introduced the ‘show’ dynamic into the entire process and the consequences for the accused of being found guilty are grave indeed. Any introduction of this ‘show’ (or, more politely, ‘educational’) element in a trial-process is inevitably going to skew what should be the primary processes and objectives of a trial. Especially in a time of Mania, when not only the public but all the formal participants are subject to the Mania’s powerful gravitational pull.
And what can you expect when your dynamics have even led to popular billing as “the last” Holocaust case? Recall the increased and intensified attendance at, say, Yogi Berra’s or Ted Williams’s last game. This is not a flippant or unserious comparison: the dynamics of advertising and nostalgia have been deliberately introduced into judicial process as a constituent element of the Mania, and not by the accused. As the author says, such billing tends to “galvanize attention” – which is good advertising and good show-business and good politics (as it is now practiced and defined), but it is not at all a helpful guarantor of good justicial process.
His first trial back in the 1970s was held in Israel (for technical legal purposes in American law). It was held not in a court-room but in a “hastily converted public theater” (how revealing such choices can be, no?). It was broadcast live on TV, as Eichmann’s in 1961 had been live-broadcast on radio. The Israeli’s have always realized the vital ‘educational’ value of this type of trial. He was billed as "Ivan the Terrible" from Treblinka.
The key piece of evidence was his combination service-record and ID card, issued by the SS training facility for Russian POWs at Trawniki in 1942. The ID photo is unarguably of a young Demjanjuk (at that time his first name was Ivan); but then the card indicates assignment to Sobibor but never to Treblinka (which is where the Treblinka survivors place him and theirs is the only testimony – the Sobibor survivors can’t place him at all).
Demjanjuk’s defense was that they had the wrong man: he had never served at Treblinka. He didn’t, however, help matters by then denying that he had ever served as a guard and that the SS ID card was a fake, whether fabricated by the Americans, the Israelis, or the Soviets (it was their curious turning-over of captured German concentration-camp files to the West in the mid-1970s that had implicated Demjanjuk, a Ukrainian by birth, in the beginning).
But, as the author notes, it was the three-judge banc of Israeli Supreme Court Justices who made the most egregious “missteps” (rightly, they can’t be called ‘errors’). “In terms more fitting for a public memorial than a legal verdict” they pledged before the trial “to erect, in our judgment, according to the totality of the evidence before us, a monument to [the victims’] souls, to the holy congregations that were lost and are no more”. (And upon those congregations be peace.)
You can only imagine how SO trials might have revealed their darker dynamics more clearly if American practice allowed judges (or juries, which were not an element in the Israeli trial) to make such clear public statements of purpose before (or even after) the trial: we will through this trial and our judgment erect a monument to the victims. But this is precisely the dynamic that drives so much victim-friendly jurisprudence and jurispraxis here nowadays, in the time of Mania law and trials.
Oh, and the bit about evidence. Not a problem, said the Israeli judges: this Ivan Demjanjuk we’ve got here has to be the same guy – or do you expect us to imagine that there were two Ukrainian young men both named Ivan who both trained as guards at Tawniki and both had big ears and both went bald in the same way as they got older? So this guy could have served at both camps and they just forgot to mark it down on his service-record - thus the judges dismissed the doubts.
The Germans … keeping incomplete files? The German military in its heyday?
The Israeli court – to nobody’s surprise – found him guilty and sentenced him to death.
But Demjanjuk – as was his legal right, even under Israeli law – appealed, and the appeals went on and on.
And as if to demonstrate that God is not dead, the USSR collapsed in the meantime. And their files were really opened up wide.
And from those files, more complete than the bits and pieces the Soviets had selected to give to the West in the mid-70s, it now seemed apparent that there had been two of them all along. The ‘shadow’ Ivan, whose last name was Marchenko, did indeed serve at Treblinka (and was last seen to history fighting with partisans in Yugoslavia).
So much, by the by, for ‘memory’ of matters and persons long past as a valid evidentiary source. Whether the Treblinka survivors made the mistake on their own, perhaps setting each other off like tuning-forks, or whether the Israeli officials realized it would really really be great if they could put Treblinka’s Ivan the Terrible on trial … well nobody will probably ever know. At least until more files are released, if even then (these aren’t the type of things you put in court and prosecutorial files). Perhaps someday, when the SO Mania might have ‘gone away’, files might find their way to the light.
So the Israeli Supreme Court voided his conviction – in 1993. His US citizenship was reinstated in 1998.
But he was not off the hook, since he still had served at the Sobibor camp in some capacity, even if he hadn’t been the operator of the gas chamber levers at Treblinka.
And the OSI over at DOJ was now really on the spot (which meant that Demjanjuk would be on the spot, since when government and police agencies now have you in their sights you are never really going to be ‘safe’ again).
The OSI had been doubly embarrassed: the Israeli case had collapsed and a US court found that the OSI had suppressed evidence during his original extradition hearing.
The OSI had to “vindicate itself” – and it was now a bit of a grudge match against Demjanjuk.
In 2002 they got his citizenship revoked again, this time on the basis of simply his Sobibor service.
But then no other country wanted to take him – and try him. More years went by and he ran out of money to defend himself. Finally, in 2009, the Germans decided to accept him – and try him.
The author notes the differences between German and American trial procedures: in the German system, there is no written transcript; the evidentiary rules are “minimal”, allowing hearsay, and past convictions as evidence in the trial; there is no jury – only a banc of judges that include three actual jurists and two ‘lay deliberators’ who actually do most of the questioning. The prosecution’s job is pretty much done once they’ve done the indictment and filed the charges.
In this regard, I can’t help but see why some victimist law advocates in this country would very much like to see the German criminal-trial system set up over here. Can you imagine what SO trials would be like if it were formally and legally permissible to introduce hearsay and record of past convictions? How much easier it would be to simply have to get some victim-friendly judges on the bench, rather than have to whomp up a Mania to make sure that potential jurors – even before they are called for duty – have been suitably soused and stampeded by a sensation-hungry and melodramatic media? And, as we have seen in the US military-law setting, ‘lay deliberators’ on the bench almost always is code for victim-advocates whose vote or input will help swing the judicial vote for the verdict in the ‘right’ direction.
To some extent this has already happened here with the erection of ‘special courts’ in ‘family’ (including domestic violence) cases. I recall one specially-trained judge telling some newbies that their job was simply to get the guy, who was always presumptively the perp in any of these cases. Thus too, the advocates who want to see ‘special sex-offense courts’ with no juries and simply a judge who is ‘specially trained’ (indoctrinated seems more like it) in ‘the complexities’ of sex-offense prosecutions (i.e., there won’t be much evidence in the traditional sense, but you just go with the victim’s ‘story’ as if it were undeniably accurate and then nail the guy with your verdict).
And you may recall from prior Posts that this whole treacherous circus has now migrated to the military-law arena, where it is moving along at a much faster clip than most people can imagine.
The prosecutor was a former judge who retired but then signed on as a prosecutor and devoted himself to old Nazi cases for reasons of “a deeply personal nature”: his father hid Jewish families during the war and then helped them escape from Germany and he wanted “to leave a similar example for my children”.
So he got his hands on the original OSI-DOJ files and went to work.
Demjanjuk is then tried in Germany in 2009, which is the trial this article actually covers.
And the prosecutor came up with a then-novel theory of the case: Since Sobibor was so small a camp, then all of the small guard force had to have been involved in the extermination process somehow since it was in their job description from the get-go. Unless Demjanjuk had been merely a chef or some such, then the court could (and should and maybe had to) presume that even without any corroborating evidence, Demjanjuk participated in the Holocaust simply by virtue of his job description.
It’s a legitimate proposition for a theory of the case. Nor am I here trying to defend Demjanjuk on all counts.
But you see a dynamic here, which in the late 2000s cannot but have been influenced by victimist assertions (victims never lie and to question them is to re-victimize them officially) and radical-feminist assertions (men and heterosexual sex are presumptively and by their very nature dominant, oppressive, and assaultive and women so enthralled by patriarchy that at this point no women sober or otherwise can legally be presumed to be able to give consent).
The key dynamic in all these assertions is to get courts (and judges and juries) to mentally accept the ‘presumptive’ guilt of a class of perps. This is a dynamic that – however subtly – is strongly active beneath the surfaces of the SO Mania.
Thus, even before any particular trial, judges and jurors are operating on the simple mental assumptions that a) victims never lie and their stories are true and it is insensitive to question them and b) men are by nature sexual aggressors and maybe predators as well (a sub-variant of which is ‘all Catholic priests are pedophiles’ – that sort of thing, ‘common knowledge’ that ‘everybody knows’).
It works rather well, alas. Or, at least, we have not yet seen the end of this particular era of Mania presumptions.
But this was still an iffy theory of the case. German law still has (or had) a fuddy-duddy insistence on actual evidence rather than ‘presumptions’. This is a point which MacKinnon deals with (see that Post I hyperlinked to at the beginning of this Post) by simply insisting that ‘evidence’ and ‘facts’ and ‘objectivity’ and ‘judicial neutrality’ are all such ‘male’ and ‘patriarchal’ concepts and have to go, forthwith. Women, she says, ‘know’ by inhabiting their situation and their condition where they can feel the reality of what’s happening. And – as was true in the Salem Witch Trials and their reliance on ‘spectral evidence’ that only the afflicted victim could see – that should be, MacKinnon dreams, enough for any court of ‘real’ law.
Her dreams have come all too true, alas, in the past quarter-century since she wrote her book.
And – yes – German law has always had a problem prosecuting crimes committed during the Nazi era, and has made quite a point of demanding hard and conclusive evidence before convicting anybody who wore a uniform or followed orders during the Hitler years.
It may seem curmudgeonly, but the only alternative is to start down the road of ‘presumptive guilt’ and ‘spectral evidence’. A path which, alas, American victim-friendly law has all too willingly taken.
After all, how can persons who were ‘not there’ adjudge whether somebody following orders – especially the small small fry – really had any choice in the matter? It’s all well and good to think that if you’ve seen enough ‘heroic’ war movies then you can presume that everybody had a choice: but when the choice might have been Do This Or Get Shot And We’ll Shoot Your Family And Your Kids And Your Little Dog Too then – try to imagine it – what real choice does a person have in that situation?
A ‘choice’ like that instantly invalidates a marriage contracted under such circumstances.
The postwar German judiciary and legislature knew a really difficult problem when they saw it, and weren’t about to be stampeded into simply corroding the foundations and first principles of their justice system to ‘solve’ it.
But I digress.
Demjanjuk, as the prosecution’s theory of the case describes it, had to be guilty simply by virtue of his job description in such a small camp’s guard force and no further evidence was necessary for conviction. As the author sums up the prosecution’s theory of the case: “Facilitating murder was in the job description”.
German criminal law, however, does allow victims or their families to function formally – and with their own counsel – as “lay accusers”; which is, I would say, a shrewdly worded way of introducing victimology into the legal process.
As I said in my Eichmann Post, the Holocaust was so indubitably actual and terrible an event, that somehow those victims’ statements had to be heard; space had to be made for them in legal process when dealing with Holocaust cases.
The trouble, as I also said in that Post, was that victimology over here piggy-backed on the Holocaust: what should have been a unique and very real historical event and experience for which legal process might make singular exception, was instead quickly adopted as a metaphor for just about every conceivable victim’s victimization (proven or not, which was part of the plan from the get-go), and thus legal process became honey-combed (or termite infested) with exceptions for victim ‘stories’ about almost any alleged or perceived victimization.
And further, it was insisted, such derangement and deformation of legal process was not to be considered exceptional, but rather the Necessary and Good and progressive reformation of an older legal process that was clearly flawed by being so insensitive to the victim (and so patriarchal, if we add radical-feminism into the equation).
One survivor put things clearly: Demjanjuk was an old man and he should be allowed to go home; “what’s important is for victims to tell their story, to tell about Sobibor”.
As I said, in Holocaust matters there is certainly some justification for making exceptions – in some way not prejudicial to the trial process – and allowing those stories and experiences and memories to be told. Though not necessarily credited formally as being per se evidentiary grade material; as the author notes about one very elderly survivor who has participated in many such trials and recollection sessions, “he can no longer distinguish between original memory and the memory of memory”. Just so.
But again, to unleash this dynamic – and as Good and Necessary – upon jurisprudence and jurispraxis in any type of case is something else altogether. The ‘telling of the story’, when not a part of necessary evidentiary testimony, is secondary to the purpose of the criminal trial process; it has its place in the civil ‘lawsuit’ trial, but not primarily in the criminal process trial.
In the civil ‘lawsuit’ the government power is deployed merely to officially determine the facts as to the tort inflicted upon the plaintiff, and award under the authority of the government such ‘damages’ as may be determined proper. It’s between the complainant’s (or victim’s) private, personal interest and the defendant almost literally.
But in criminal justice process, it’s between the government – acting as representative of the public interest (not necessarily the victim’s immediate and particular interest)- and the accused. And there the stakes (deprivation of liberty, property, or even life) are much much higher than the monetary awards of a lawsuit. (Although it's surely true that as a citizen (as well as an individual), the victim's 'interest' is served by the criminal trial's concern for the larger common weal.)
There remained one thorny problem: did Demjanjuk voluntarily participate? Could he have deserted or run away rather than perform his job-description?
This is, as I have said, tremendously difficult for a court to determine more than half a century after the fact. One historian testified that his researches indicated that many of the former-POW guards (maybe a fifth of them) did desert – although what happened to them afterwards and how many were caught isn’t quite so clear.
It’s almost impossible, now, to say with enough certainty to legitimately deploy the sovereign authority of the state to convict an accused, especially somebody accused of grave charges, and thus liable to grave penalties.
Which can hardly be surprising.
And throws into bright relief the problem of prosecuting long-ago offenses, especially on mostly the uncorroborated memory of alleged victims (whose own memories may be distorted in a myriad of ways), and especially when the easier way out is to simply ‘presume’ guilt and get the thing over with and go home.
As it turned out, after a lengthy trial, the court deliberated two hours and found Demjanjuk guilty of the Sobibor charges, on May 12, 2011. He was allowed to live in a nursing home, where he died – refusing to speak at all about anything – just a couple of days ago.
Again, I make no defense of Demjanjuk, nor do I presume to know what circumstances he as an individual faced. At this point, if one were of a religious bent, one could surely be certain that the case will be handled much more quickly and surely at whatever Court he might now be facing.
But the dynamics revealed in this history of his trials surely yields for the SO community yet more evidence of what happens in a time of Mania and of government-abetted Mania.
So much remains to be done.