I just finished a book entitled
The Trial: A History, from Socrates to O. J. Simpson, by Sadakat Kadri. The author has quite impressive legal credentials. He's a member of the New York bar with a degree from Harvard and he's also a British barrister who's argued cases in a number of other countries as well.
Being a law school grad--albeit one who largely succeeded in avoiding practice--I found The Trial immensely fascinating. It's filled with strange-but-true stories, like lawsuits brought against rats and locomotives; and all kinds of trivia, including these items:
- English courts convened all-woman juries to decide whether a pregnant female defendant should be executed immediately or after delivering her child.
- Socrates probably had it coming. He was a right-winger to the core, and sympathized with the authoritarian regime of arch-rival Sparta.
- The Inquisition didn't start in Spain, though Monty Python gave us that impression. It originated in France and spread from there to Germany and Spain.
- Thomas Jefferson thought criminal punishments should fit the crime. For example, he once proposed castrating rapists.
The Trial also makes the point that Mark Twain was right: history rhymes.
Take the 13th century version of the War on Terror--namely, the Catholic Church's assault on Cathar heretics. It even included a medieval version of Alberto Gonzalez and Donald Rumsfeld's thinking:
In 1252, Pope Innocent IV published a bull, "On Extirpation" (Ad extirpanda), which authorized the use of torture against ordinary citizens....A lingering sense that the Church ought not to be in the business of bloodshed led Innocent to stipulate that inquisitors should subcontract interrogations to secular authorities, and major hemorrhages, amputations, and death were to be avoided.
More than 400 years before terrorists hit the World Trade Center and the Pentagon, a French jurist articulated the "9/11 Changed Everything®" argument:
[Jean] Bodin was an apologist for absolutism who was renowned as much for his mastery of political realities as for his grasp of supernatural ones, and his work--On the Demon-Mania of Sorcerers--pioneered a legal theory that has appealed to authoritarians ever since: that state interests necessarily take priority over individual liberties. In the face of a crime so threatening to the moral order, he made clear that those aspects of customary law that still protected defendants would simply have to be abandoned.
Even George Orwell would have been stunned by the medieval Church's misuse of language:
The rules that prevented clerics from spilling blood would, even in the war on heresy, have to be observed. The bishop or inquisitor would therefore "relax" impenitents into the hands of secular courts and "affectionately request" the court to be "moderate" in its sentence. The double-talk was as psychotic as it sounds. Moderation involved chaining the convicts to stakes while piling logs up to their chins, burning the bodies for hours, and finally smashing the carbonized skulls and torsos with a poker.
Friedrich von Spee, a Jesuit priest in Germany during the 1620s, was commenting on witch trials rather than terrorism cases, but makes much the same point:
Every accusation inexorably drove toward conviction, because "judges think it a disgrace if they acquit, as though they had been too hasty in arresting and torturing the innocent." He recalled a conversation at which several inquisitors had been asked how an innocent person, if arrested, could ever escape conviction. and their response had not been reassuring: "They were unable to answer and finally said they would think it over that night."
Al Gore covered a lot of ground on Monday, but didn't mention the Salem witch trials. But this is what happens when checks and balances disappear:
Individuals were called to account for vast events that they could never have prevented, simply because they seemed to be the kind of people who would have brought them about if they could. The absence of proof linking them to crime became a reason to intensify the search rather than to abandon it.
Does this sound familiar?
Democracies in extremis have even resorted to torture, and survivors often report...that the people who perpetrated it seemed driven not by sadism but by a moral belief that they were fighting fire with fire."
It's too bad Robert Jackson, and not John Roberts, were on the Supreme Court today. Here's what he told a gathering of lawyers in April 1945:
"The world yields no respect to courts that are merely organized to convict."
"We cannot successfully cooperate with the rest of the world in establishing a reign of law unless we are prepared to have that law sometimes operate against what would be our national heritage."
It turns out that Abu Gharib is a case of "deja vu all over again." From Kadri's account of the Army's investigation of My Lai:
Even President Nixon felt the need to weigh in [about the My Lai massacre], though his views on the massacre were even more opaque than usual. In public he undertook to ensure that "those who are charged, if they are found guilty, are punished, because if it is isolated it is against our policy and we shall seee to it that what these men did--if they did it--does not smear the decent men that have gone to Vietnam in a very, in my opinion, important cause." In private, he began covert surveillance of [Ronald] Ridenhour [who was at My Lai and told high-ranking politicians what happened there] and [Seymour] Hersh and fulminated against the "dirty rotten Jews from New York" who were behind it all."
The Patriot Act and warrantless NSA surveillance are two more examples of deja vu all over again. Only the technology changes:
Rulers have been redefining their rules at times of crisis ever since Pope Gregory IX sent inquisitors into Languedoc during the 1230s. Innocent IV authorized torture as a temporary measure in 1252, and it would remain part of the Continent's judicial arsenal for another five hundred years. In England, the ministers of Queen Elizabeth I dusted off the rack and thumbscrews to tackle the state's Catholic enemies during the 1570s, and their British successors n the 1970s introduced internment and juryless trials to deal with the paramilitaries of Northern Ireland."
Food for thought on a blah Thursday.