Friday, March 29, 2013

Al Giordano warns us about becoming legal fundamentalists

My "break-up" with the group of emo's I used to hang out with online came back in 2008 when I decided not to join their crusade on insisting that newly appointed Attorney General Eric Holder prosecute Bush/Cheney for torture. Its not that I would have been against such a move by Holder. It was that I had serious questions about its efficacy as well as the idea of making it a priority.

Besides which, I've spent the last 25 years of my professional career working on the outskirts of our criminal justice system and I have lots of questions about what the basic concept of "justice" means.

Those questions have surfaced once again in the context of national politics as I see so many liberals joining on the bandwagon of the need to prosecute the big banks for their activities leading up to the great recession. I'm not feeling like joining up on that one either.

And so it was interesting today to find an old column by Al Giordano that addressed some of those concerns back in the day when the topic was about Bush/Cheney and torture.
The suggestion that the way to make sure torture doesn’t happen in the future is to prosecute it is not reality based. Did the prosecution of so many Nixon era presidential appointees prevent future ones from violating the Constitution? Not at all. Did the 1989 indictment on sixteen felony counts of Colonel Oliver North for crimes in the Iran-Contra drugs-for-arms scandal end the complicity of US agencies and agents in the cocaine trade? Nine years of investigative reporting by this newspaper have demonstrated otherwise...

“The Law” is an ass. And I say that as one who generally likes how the US court system works, compared to those in other lands, when it works...

In 2003, at the Narco News School of Authentic Journalism in Isla Mujeres, Mexico, we held a debate and discussion that is relevant to the current debate over torture-related matters titled “What Is Democracy?” Two very articulate advocates offered very different visions. One offered the traditional liberal view: that democracy is something that comes from a document (for example, the Constitution) and is codified by law, and that if society follows those laws, a kind of utopia ensues. Another said we shouldn’t kid ourselves, that democracy is a lot messier than that: that democracy requires a lot of pushing and shoving and what is ethical and right in one circumstance isn’t necessarily so in another. Social movements and governments alike engage in a little duplicity now and then, and it's not always "wrong" in every single case. Sometimes it's wrong not to bend the rules a bit. This is certainly true, she noted, of the great social movements that have improved every democracy that they’ve touched. My students and I were far more persuaded by the latter definition of democracy because we had already been out there accompanying such social movements across the hemisphere and had lived the rough and tumble realities that the speaker described...

What I see and hear in the words of those who are upset and calling for such prosecutions are that they are mainly adherents to that first definition of “democracy”: essentially, a Fundamentalist view of “The Law.” And it frightens me, somewhat, to think what society would be like if they ever got their way (which they won’t, because human beings are not automatons, so I’m not really that concerned). There are times when “The Law” is dressed up in liberal language in a way that masquerades the bloodlust behind witch hunts and impulses to scapegoat individuals for crimes or taboos that, in a democracy, we’re all responsible for having enabled.

The same tendencies that have always placed me squarely against McCarthyism and Red Scares put me on the opposite side of some liberal and progressive colleagues today when they demand the prosecution of Bush, or of Cheney, or of some of their underlings...

In the end, preventing torture is a political struggle and also a power struggle, so much more than a matter of "The Law." It’s about changing society and its presumptions, and changing institutions, like the military and police agencies, where the culture is so prone to that kind of abuse...

The real task at hand is to evolve American society – and with it, military and law enforcement culture - to change in ways that “The Law” will never be able to touch. That’s what I observe that the President is, step by step, doing. And the legal fundamentalists who fail to consider that larger context are going to continue to be upset, again and again, until they open their eyes to the bigger chess game going on between the new President and the institutions of defense and law enforcement, the only steps that can ever accomplish a permanent ban on torture and more.
In my mind - all of that holds true when we talk about prosecution of the big banks. If it could be done in a way that doesn't set off another great recession, I wouldn't necessarily be against it. But I too worry about liberal bloodlust for witch hunts and how that leads to a complacency about our own responsibilities for the step-by-step process that is really required for change.

1 comment:

  1. I believe Plunkitt from Tammany Hall made a similar point when he said "reformers are morning glories." Our up to date example of such a reformer is Elliott Spitzer. He could've been the front runner for 2016 had he reigned in his aggressive impulses. He wanted things done his way right away. He was always looking for a fight. It was sensible to do so when he was Attorney General. He was standing up to Wall Street corruption then. He came in as governor announcing changes. Going against the legislatures the way he did led to his downfall. This isn't to say he wouldn't be attacked anyway. It would not have been as bad as it was. Being with the ladies of the night didn't help his cause much either.

    One thing irritating about emo complaints about the president is that they act like he was supposed to make everything right by March 2009. The same lobbying groups, congress, and media infrastructure was in place to stymie progress. So he got about as far as the system would allow. What I'm saying makes sense to the choir but there were some "lefties" that didn't seem to understand the limitations we all work under. We even had Clinton's band of pricks around to give us grief. You'd almost think we didn't have issues like women's suffrage and segregation if you listened to them.