The First Thing We Do

We can do it the easy way or we can do it the hard way. Romania did it the hard way. Moarte criminalului, death to criminals: armed revolution, then a series of epic Mineriads, with a mild-mannered IMF gent on hand to suck them dry. I was there after the revolution, in the long hiatus between the fourth and fifth Mineriads, and I was starving until someone told us where the soccer stars dine out.

It turned out the way it was bound to, with all the world-standard requisites of responsible sovereignty: The International Bill of Human Rights, the Rome Statute, and the UN Charter. Most core human rights, in fact, and an opposition that demands individual accountability of officials and police. Constitutional change by referendum. A restive and demanding civil society that leaves and returns to their country at will and assembles in public without fear. Rights and freedoms that you can only dream of in your US police state.

It happens again and again like a series of echoes. Leon Rosselson dug up the Diggers: The club is all their law, stand up now. We had San Francisco diggers back then too. But the time was not ripe. The world had not worked out how to help struggling peoples claim their sovereignty.

Now in the burble and slosh of another impending puke, in the countercultural hinterlands of the US a former governor’s son makes a so-so whiskey called Shay’s Rebellion and sells it for a hundred dollars a fifth. He may regret reminding us of it, because it looks like we’re going to do it the hard way. The club is all their law to keep poor folk in awe, That they no vision saw to maintain such a law. At such times history crumples and new jacqueries can touch and draw strength from the many, many old ones. From Xiang Yu, Ankhmakis, the Red Eyebrows, the Yellow Turbans, the Gay Troop, the Circumcellions, the Shocho debtors, the Cudgel Warriors, the Taiping, the Red Spear Society, the Mau Mau, the Shining Path, die Wende, The Black Panther Party, the Allamuchy Tribe, or the Zapatistas…

Maybe even from Sierra Leone: the Kamajors, the RUF, the West Side Boys. Sobels, soldiers by day and rebels by night. The war set the country back 60 years. Years after the war’s end I got a thousand calories on a good day. That was my first brush with wasting, the only time I ever had a sixpack. I wouldn’t recommend it as a slimming regime or as a means of liberation. Once the diamond merchants got involved, the uprising produced a generation of child soldiers, mass dismemberment, and the old Israeli sport of cutting pregnant mothers open to bet on the sex of the fetus.1 By now the country has rejoined the world. The international community responds to armed struggle by imposing law to curb the state predation that caused it. The new law grounds human rights not in nature or in god but in our recourse to rebellion.

But Americans are mired in a brutish, backward corner of the world. Primitive legal and political doctrines hold them back. You can see it from a height on world maps, stark as the nighttime dark of North Korea viewed from orbit.

This map shows the government’s commitments to core human rights, the minimal standards of the civilized world. By this criterion, the US government is crusted at the bottom of the barrel, at about the level of Myanmar, Malaysia, or South Sudan.

This map shows whether the government lets you appeal its actions to independent international human rights experts. The US government forbids you any recourse to the outside world. Again, the US is in the cellar, sunk deep in the bottom ten per cent with North Korea, Iran, China, and some other cats and dogs.

This map is for reporting compliance. In the few cases where the US government has made a commitment, does it report as agreed in good faith? In this respect the US attains mediocrity — the middle of the pack, trailing Russia, China, Saudi Arabia, and Turkey, but more dutiful than North Korea or Iran. Solidly second-rate: under review by the Committee Against Torture, the government turned its report in five years late. This was while CIA was running their secret gulag of “black site” death camps, so they took extra time thinking how to put it nicely.

This map is pass/fail, and our government fails. The US government has failed to issue standing invitations to UN human rights experts reviewing compliance in country.

This map shows whether government meets the world standard for institutionalized human rights under independent expert supervision. Here again the US is floundering in the bottom tier, the international equivalent of Animal House. Even Myanmar can do better than that.

It looks even worse when you dig into specific issues and urgent derelictions. So to sum up, here’s your government’s report card:

Respecting your human rights: F
Giving you recourse to the outside world: F
Reporting on state human rights compliance: C-
Permitting independent human rights examination: F
Instituting independent protection of human rights: F

Apply the minimal standards of the civilized world: the US government doesn’t measure up.

If this were your kid, would you waste college money on him? Our rulers’ abject failure coexists with an odd baseless self-regard. They seem to think they’re paragons of statecraft. The example of countries that know what they’re doing seems not to be enough. Acculturation doesn’t sink in. Like any other hopeless failure, the US government needs to be expelled.

How did the US legal system spawn such a bunch of throwbacks?

Twentieth-century US legal scholars took their cues from Prussian realists of the Iron Chancellor’s day. Rudolph Von Ihering told them to subordinate individual good to social purpose, because everyone agrees, doch, freedom is craps. Our obvious, universally self-evident common purpose is what matters (those days, the Franco-Prussian war was in the back of everybody’s mind). There’s no point setting limits on the state (forget John Stuart Mill.) Ihering thought of law as Darwin in action, only a deterministic sort of Darwin that always makes the bugs turn out the same, just right (Darwin explained everything back then.) Ergo, whatever the law says is right. It all comes down to The Worthlessness of Jurisprudence as a Science, as propounded by J.H. Von Kirschmann.

US legal scholars took worthlessness to heart. They liked that Teutonic jawohling. John Chipman Gray said law is not laws, law is just what judges say. Jerome Frank said, who are we kidding, there are no rules, law’s a bunch of random verdicts. Karl Llewellyn came right out and admitted that all sorts of bureaucrats make law, not just judges. And even today we see the awkward truth of Llewellyn’s statement in the fact that any frightened cop can shoot you dead. US jurisprudence thinks your right to life is nothing but the history of timid assholes armed and dressed in jaunty blue police costumes. Hessel Yntema said that courts are merely pageants in a sort of cathartic mystery religion. To control the ill effects of sacerdotal whimsy, Yntema urged judges to strangle themselves in precedent, groping for the least common denominator of consistency in a degenerating system. We can watch this tendency erupt when US bureaucrats try to drown world-standard human rights law in every idiotic thing that any crooked judge has ever said.

American jurists facing the fundamental question — Is the state for me, or do I exist for the state? – made their choice. They decided you exist for the state. The idea that humanity is not to be used, that the state is a means to human ends and not the other way around, that’s beyond them. They expect you to be selfless in the sense that Arendt cited as the key to success for totalitarian states. Our preeminent mediocrities Benjamin Cardozo and Roscoe Pound remind you not to count on law for protection or for anything else. Law is always changing so naturally lawmakers do what they want, untrammeled by law of any sort. Especially, in practice, when law asserts your human rights. US legal theory is a conscious rejection of the free will underlying human rights. Postwar history is the story of that losing battle.

America’s absolutist furuncle came to a head whenever judges faced clandestine crime. In US v. Curtiss Wright Export Corp. (299 US 304 (1936)), the Supreme Court exempted presidents from the Tenth Amendment where “foreign or external affairs” are concerned. In upholding an indictment for clandestine gun-running in Bolivia, the court cleared the way for state secrets and covert state crime. Harding appointee George Sutherland garbled Justice Story’s nuanced concept of popular sovereignty to grant the president something called ‘complete’ sovereignty. The Supreme Court clearly appreciates the ambiguity of this hackwork, as state criminals can invoke it to silence witnesses to state crimes, keep Congress in the dark, or frame political enemies with secret evidence. Thanks to Sutherland’s slipshod logic, the illegal arms trade the case interdicted is one of CIA’s most lucrative lines of business.

Sutherland also blithely gutted Constitution Article II, Section 2, Clause 2. So much for advice and consent. If you want to cut the Senate out of treaty-making powers, just say your agreement’s not a treaty, it’s a compact. This is convenient when CIA wants to infiltrate terrorists into the US, like Andreas Strassmeir, Sivan Kurzberg, or the 200 other Israeli saboteurs of 9/11. CIA makes an eyes-only intelligence liaison agreement. It’s none of your business, it’s a compact.

Once CIA came into being, judicial groveling peaked. In deference to “intelligence services whose reports are not and ought not be published to the world,” defender of freedom Robert Jackson decided that “It would be intolerable that courts, without the relevant information, should review and perhaps nullify actions of the Executive taken on information properly held secret.” [333 U.S. 103 (1948)] Our courts have affirmed CIA’s impunity, its absolute life-and-death power, and its arbitrary rule.

The Supreme Court’s last gasp of resistance to state crime came during US aggression in Cambodia. The international community had established a Special Committee of 35 states to define aggression. The definition of aggression, UNGA (XXIX) Agenda Item 86, was set to become customary international law when Elizabeth Holtzman and Air Force dissidents asked the court to halt US bombardment of neutral Cambodia. The Supreme Court fractured with countermanding individual orders when Justice Douglas enjoined the bombing. A panicked quorum fobbed the question off onto the Second Circuit, which threw up its hands and called illegal war nonjusticiable.

In washing its hands of US aggression, the court had to stay one step ahead of their hapless forbears Josef Altstötter, et al. UNGA Resolution 2330 (XXII) was expediting work on defining aggression in light of “the present international situation.” By 1973, the situation was little Phan Thị Kim Phúc running naked screaming, “Too hot, too hot!” with burning napalm plastered to her back. The hot potato of judicial acquiescence naturally fell to Thurgood Marshall, one of America’s first black faces in the limousines. With the dignified authority of Prissy birthin’ babies, our ultimate judges held that the bombardment “may ultimately be adjudged to have been not only unwise but also unlawful.”

The court backpedaled furiously from that unnerving brush with adult responsibility. From the ensuing frenzy of judicial forelock-tugging, including United States v. Nixon, Snepp v. United States, and Haig v. Agee, CIA cherry-picked the precedent and seized on “utmost deference” as their magic words to dispel unwelcome scrutiny. Along the way Judge Robert Vance poked his nose into CIA drug trafficking and got himself blown up, and that was that.2 Now the courts know their place.

CIA’s contempt of court is now a hallowed institution. Our idea of a judge is Clarence Thomas, the comically bent speak-no-evil curio that DCI Bush placed on the bench. Prospective lawyers need someone else to look up to. More than any other US legal institution, Harvard Law School bears the burden of taking smart people and brainwashing the sense out of them. Harvard ossified the profession with the case method in the kleptocratic nadir of the Gilded Age. By the 1980s, thirty years of CIA impunity and international disgrace had made US law a laughingstock worldwide. Harvard’s dubious prestige did not protect it from the general rot. Everyone there knew Watergate hero Archibald Cox as the goon who turned a mob of unbadged cops loose on the antiwar occupiers of University Hall. It was harder to get people to perform Paper Chase pomposity. So it was probably unavoidable that Harvard slipped up and hired some smart-aleck teachers.

These were the adherents of Critical Legal Studies or CLS. They helped professors’ secretaries form unions. They called war in Grenada illegal. One of their sympathizers went so far as to sue the USA for war on Nicaragua, and not in a pliant American rubber-stamp court like the Supreme Court where you knew what would happen, but in the World Court. They helped all sorts of powerless people who got screwed by their predatory state. The ferment spawned an enemy within, a revolutionary cell of student pranksters that called itself the Counter-Hegemonic Front. Someone started a Human Rights Program at the law school, undermining frantic statist efforts to wall off human rights from US law. The CLS thinkers made mincemeat of the traditional plodders’ trade-school verities. They showed how legal slogans and nostrums make lawyers into earnest tools of a criminal state.

For youthful exuberance liberated from the soul-murdering tedium of legal regurgitation, what did the case method hacks have to offer? Nothing. While CLS partisans backed students fighting Apartheid, the old guard shooed them off to spread kumbaya coaching soccer at white Afrikaner schools. So the would-be Kingsfields did what they could. In dreary bureaucratic campaigns the old mediocrities made an example of a few of the smartest, mobbing them in meetings, writing 80-page memos of eye-glazing scholastic invidia, running to the president to get them fired in double-secret panels. Their adversaries countered by winning hearts and minds: CLS professors showed greedy student sellouts how their rigorous methods could be applied to the cynical sophistry of corporate law.

US lawyers’ indoctrination came to be policed by the Federalist Society, founded by influential legal crook Ed Meese. The society fought human rights with their thought-stopping shibboleth “treaty law.” An uneasy ideological equipoise returned as Harvard degenerated in lockstep with its statist culture. Now an unprecedented mass of undergraduate cheaters, half the class, has been admonished or sent down and let back in. The last of them have issued from their educational peristalsis, swirled in ignominy, and made it big, but now the prized foreign princelings who valued the Harvard brand as a status symbol increasingly prefer European universities, where societies are less violent and civil-law traditions are more compatible with world-standard principles of comity like human rights.3 Fewer outsiders need learn to prop up a criminal enterprise like the USA. Historian Johan Huizinga showed how the ethos of chivalry became more and more rigid in a parasitic class of knights, and a joke to everybody else. That’s happening now, worldwide, with the doctrinal absurdities of US government and law. The whole world knows your lawgivers are shitheads.

In the Human Rights Committee’s 2014 review of the US, the chair gave a remarkable summation.4 “The idea of the country being a nation of laws, not of men, is hard-wired into the state’s civic DNA.” The consummate diplomat complimented and qualified, sought common ground, then proceeded to give the US delegation a remedial lesson in basic legal reasoning and reading comprehension.

Acknowledging the US government’s “principled approach to the interpretation of treaties,” the chair said, “I hope I am not being accused of being ironic if I express difficulty in understanding what the principles are.” He then gave them basic instruction in the black-letter law of legal interpretation, introduced the relevant provisions of the Vienna Convention on the Law of Treaties, and showed them how to apply it step-by-step through “a perfectly ordinary grammatical reading,” and if confusion somehow persists, how it is to be disposed of in terms of the stated object and purpose of the treaty. What he found really troubling was the example the US set. He left implicit that if every country interpreted treaties so dishonestly, law would degenerate to nonsense.

The chair then addressed the problem of impunity for US government torturers. “One can imagine that they might not be easily prosecuted as a result of spurious legal memoranda” from officials who are themselves protected by the impunity program. “You wouldn’t have to do an international human rights law course maybe to think that such a, such legal, advice deserved some question.” His exasperation mounted as he spoke of the government’s reflex resort to its all-purpose ritual incantation, national security, and its senseless state sadism, a seeming raison d’être of “victimizing victims.” He finally confessed himself baffled: “many of my colleagues might find it as difficult as I do to even begin to comprehend.”

The US government makes a fetish of law but they don’t know what they’re talking about. They seem to think law’s some sort of Alice in Wonderland off-with-her-head arrangement. He asked them what we all want to know: You people can’t be that stupid, What’s wrong with you?

At Penn Law, with its faintly subversive milieu, they used to sell tee shirts printed with Dick the Butcher’s comprehensive program from Henry VI. His wisdom passed into US mass culture in the form of the traditional couplets known as jokes:

What do you call a thousand lawyers chained together at the bottom of the ocean?
A good start.

Indeed, we call that fat hairy corpse at Cibolo Creek Ranch a start.

cf.5

  1. Israeli arms dealer Simon Yelnik and his ilk sent arms to Liberia. Charles Taylor paid for them with diamonds extracted from Sierra Leone. The Israel Diamond Exchange traded and exported diamonds from Taylor’s diggers. Internment camps like Mapeh functioned as a miners’ hiring hall. Other diggers were impressed as needed in the bush. []
  2. When the designated bomber’s conviction collapsed in spectacular prosecutorial malfeasance, he was trundled off to Alabama’s death row for safekeeping. He was executed this past spring, preventing the sort of awkward appeals that make a nuisance of lone nuts Sirhan Sirhan and James Earl Ray. []
  3. And the crucial check and balance of saisit le juge. []
  4. Human Rights Committee, 110th Session: United States, Part 3, beginning at 2:28. []
  5. What is the difference between a lawyer and a rooster?
    When a rooster wakes up in the morning, its primal urge is to cluck defiance.

    – anent legal whistleblowers like Coleen Rowley. The maxim applies equally to consultants. John Weed was a virtuosic nuclear effects modeler who would unwind shooting pumpkins with M1 machine guns. Salt of the earth, in short, a latter-day Wat Tyler, the best of Castle Langley’s restive peasants. He suffers from a sense of right and wrong. Transparency activist and human rights defender John Weed, we thank you for your service. You are the tip of the tip of the iceberg. []

Brian Littlefair is the author of Desert Burial. As a consultant specializing in foreign direct investment he worked with foreign joint ventures, international financial institutions and bilateral aid agencies, with volunteer work in food security, transparency, and human rights in the global south. Read other articles by Brian.