States, including our own, have always afforded privileges to certain groups above others through their laws. Various codes have upheld discrimination in gender, pedigree, ethnicity, and even ordained that one person is the property of another.
But positive law co-exists with another ideal of a universal Rule of Law, or justice, conceived in classical antiquity by philosophers such as Plato, Aristotle and Cicero who said; “True law is right reason in agreement with nature; it is of universal application, unchanging and everlasting; it summons to duty by its commands, and averts from wrong-doing by its prohibitions”.
There is a similar transcendence in the literary canon, a tradition of the best which puts William Shakespeare rather than John Grisham on an English syllabus.
The philosopher Alasdair MacIntyre wrote: “Tradition if it is to flourish at all…has to be embodied in a set of texts which function as the authoritative point of departure for tradition-constituted enquiry and which remain as essential points of reference for enquiry and activity, for argument, debate, and conflict within that tradition”. The sacred texts in our legal tradition come from classical antiquity and have informed an idea of justice, from which the Founding Fathers of the United States drew inspiration.
Another layer of values, often formed unconsciously, comes from the poetry contained in all our art forms. This is the sustaining life blood of culture, which led Percy Shelley to argue that the poets are “the unacknowledged legislators of the world”. Over the long term, no lawmaker’s code ever had a cultural impact equivalent to William Shakespeare’s plays. Contrariwise, apart from their direct effect, laws still have a vital pedagogic role in informing values.
The US Constitution has served as a model for democratic constitutions worldwide since its promulgation, but made no mention of the slavery which operated in the Southern states of the country until 1865. Moreover, the so-called ‘Three-Fifths Clause’ contained in the Constitution said that in a Southern state black slaves should be counted as three-fifths of a free citizen, for the purposes of Congressional elections; although they were of course denied the right to vote. This gross hypocrisy augmented the representation of Southern states in the House of Representatives, ensuring a Northern majority could not interfere with the South’s ‘peculiar institution’. The Rights of Man were colour-coded from the start.
Slavery was only abolished in 1865 by the Thirteenth Amendment after a bitter five-year Civil War that caused more US combatant deaths than the First and Second World Wars combined. It should also be noted that the war was not fought by the North to bring about the end of slavery but to prevent Southern secession, and only when the war was effectively won was a right to own slaves brought to an end. It was violent competition between Southern and Northern migrants to ‘Burning’ Kansas that really set the two sides against each other before the Civil War.
Nor did the US Constitution protect First Nation Americans from what is increasingly viewed as an orchestrated genocide throughout the nineteenth century. Cormac McCarthy’s novel ‘Blood Meridian’ paints a gruesome picture of the aftermath of the Mexican-American war of 1846-48 for the Native American peoples effectively annexed into the expanding United States.
The twentieth century altered a prevailing view of a buccaneering United States. In 1917 Woodrow Wilson famously entered World War I “to end all wars”, setting the stage for the League of Nations; although Isolationism reasserted itself, especially after Wilson suffered a debilitating stroke in September 1919, meaning the United States did not participate in that first experiment in international governance.
Despite the horrific, and unnecessary, atomic bombing of Japan, the US is still considered the saviour of civilisation in World War II. But especially since the Vietnam War normal exploitative service has been resumed with the development of a state-sponsored, fearsome military-industrial complex, which also relies on the sale of arms to ‘friendly’ powers, whose ruling elites are often subservient to US interests.
The guarantee of free speech under the US Constitution has allowed US political activists a degree of latitude, often operating from academic institutions rather than a media dominated by special interests, which turned socialism into a dirty word. Nevertheless, during and after both world wars in particular, the state actively repressed left-wing movements. This has forestalled the emergence of socialism, despite promising beginnings under Eugene Debs, a candidate in multiple Presidential elections. He was found guilty of sedition for advocating resistance against the military draft, and sentenced to ten years in imprisonment in 1918.
Nonetheless, US citizens have been able to rely on constitutional rights, especially since the Civil Rights movement of the 1960s. It has mostly been outside its national territory that US intelligence services have committed their crimes. It poses the question who were the ‘good guys’ during the Cold War.
The Trump administration’s persecution of aliens is also nothing new. Nativism goes back to the arrival of Catholic Irish from the late 1840s when the Know Nothings became a major political force, even putting up Millard Fillmore as a candidate in the 1856 Presidential election under the auspices of the American Party. The hysteria against Muslims today recalls charges that Catholicism was incompatible with ‘American’ values. But the erosion of the Rule of Law in the wake of the September 11 bombings revisits an even grimmer spectre.
The twentieth century bore witness to the horror of the Nazi concentration camps, where the meticulous efficiency of an apparently advanced country was harnessed to manufacture death and spread fear. In response, the Nuremberg Trials established ideas on universal justice, including extra-territorial prosecution of Genocide and Crimes Against Humanity. Of course there was a great deal of hypocrisy such as the inclusion on the bench of a Soviet judge, Iona Nikitchenko, who had presided over Stalin’s infamous Show Trials. Nonetheless, the court established a line of internal repression which could not be crossed by any sovereign state. The jurisdiction of a universal norm of justice was declared, enforceable by the international community.
But ‘the past’ is increasingly treated as another country, and an ideal of justice is increasingly ignored in our post-modern confusion. This parallels developments in literature, often linked to the legacy of Marxist analysis. Thus, Terry Eagleton wrote: “Literature, in the sense of a set of works of assured and unalterable value distinguished by certain shared inherent properties, does not exist”. Marxism ripped apart ideologies that preceded it, but it was ultimately undone by internal contradictions. Now we find intellectual disorder, opening the way for showmen politicians to manipulate electorates.
The United States, as Cold War victor, bears greatest responsibility for letting the rot set in. The illegal invasion of Iraq in 2003, without the approval of the UN Security Council, was a turning point, and the decision not to participate in the International Criminal Court emphasised the extent to which the Global Policeman believed itself above international law. This has emboldened Russia, its old superpower foe, to pursue vendettas of its own against sovereign nation states. The erosion of the Rule of Law began apace under the Bush administration after 9/11, and continued under the Obama administration, as drone strikes became the preferred form of summary international justice. Global arms sales have reached levels last seen at the height of the Cold War, with many parts of the Middle East and Africa in a state of permanent conflict.
The idea of Nazism as a ‘unique’ evil is articulated by the historian Eberhard Jäckel:
“The National-Socialist murder of the Jews was unique because never before had a nation with the authority of its leader decided and announced that it would kill off as completely as possible a particular group of humans, including old people, women, children and infants, and actually put this decision into practice, using all the means of government power at its disposal.”
The legacy forms a core collective memory, especially in Germany where Nazism emerged, and the United States which defeated it and provided refuge for millions fleeing it. Increasingly, Nazism is seen as a freakish aberration. Nevertheless, reminders of the camps and other excesses of Nazi rule abound, through public memorials, historical accounts, novels and films, sometimes obscuring equally brutal examples of genocide elsewhere.
But the recollection of Nazism sparks very different responses. Many Americans view their role in the world as heroic and bask in feelings of righteousness, seen recently in Quentin Tarantino’s film ‘Inglorious Basterds’ (2009), while Germans live with a collective guilt, which prompts ongoing reflection. Trump’s victory highlights the continuing usefulness of scoundrel patriotism to powerful interests.
Today we expect even someone lacking a formal education to be aware that Hitler’s Germany killed and enslaved Jews. As time passes, however, Nazism is increasingly presented as an unreal freak show – an aberrant madness that beset Germany for a time – inexplicable and increasingly comical, as depicted in Tarantino’s film. This dissonance is amplified by the Internet Revolution where the louder, more iconoclastic, voices resound with unravelling effects, and the fiction of the virtual overtakes reality.
We may hesitate when drawing connections with the Nazi approach and trends in American policy. Nonetheless, we bore witness to a serious regression in American values after 9/11 when the Bush administration’s Attorney General Alberto Gonzales permitted “enhanced interrogation techniques”, and surveillance of US citizens without a warrant.
He also described the Geneva Convention as “quaint” and “obsolete” in a 2002 memo: the legitimised horror of Guantanamo Bay, and the more undisciplined approach of Abu Ghraib ensued. The latter, an appalling blot on the reputation of the American armed services, could hardly have occurred without a shift in standards emanating from the offices of the principal legal advisor to the President. Words count, a Pandora’s Box had been opened.
Eight years on, the Obama administration tempered this approach without definitively disowning the slide towards barbarity: extra-judicial drone strikes continued, and Guantanamo remained – despite being formally closed by an executive order in 2009 it still holds fiftyfive detainees, referred to as “enemy combatants”. The decision of the Supreme Court in Boumediene v Bush (2008) extended a right of habeas corpus to inmates, but by then the damage to the reputation of the United States had been done.
Donald Trump’s stated endorsement of torture by water-boarding and the selective screening of minorities is not a new departure, it is simply a return to the ground laid by the Bush administration, stated in blunter terms. Calling for terror suspect Sayfullo Saipov, the perpetrator of the recent New York truck attack, to be sent to Guantanamo is only possible because that facility exists in the first place.
It is also important to recall that the Nazis didn’t invent the idea or the term concentration camp. It entered the lexicon of infamy, and became a tool of repression, during the Boer War when the British, with the Rule of Law in abeyance, detained mostly women and children from a defined ethno-linguistic group (Afrikaners) in camps where many detainees died of disease in wretched conditions. This did not approach the depravity of the Nazi death camps, but a line had been crossed.
Likewise, what is regarded as the first modern genocide – though the term only entered into the legal lexicon during the Nuremberg trials – that carried out against ethnic Armenians living in the Ottoman Empire during the First World War, served as an example to the Nazis. In a speech in 1939 Hitler observed: ‘Who after all speaks of the annihilation of the Armenians today?’.
Hanna Arendt in her seminal 1948 essay entitled ‘The Concentration Camps’ identifies three categories of concentration camps:
“Corresponding to three basic Western conceptions of a life after death: Hades, Purgatory, and Hell. To Hades correspond those relatively mild forms, once popular in non-totalitarian countries, for getting undesirable elements of all sorts – refugees, stateless persons, the asocial and unemployed – out of the way…Purgatory represented by the Soviet Union’s Labour camps where neglect is combined with chaotic forced labour. Hell in the most literal sense was embodied by those types of camp perfected by the Nazis, in which the whole of life was thoroughly and systematically organized with a view to the greatest possible torment”.
“All three types have one thing in common: the human masses sealed off in them are treated as if they were no longer of any interest to anybody, as if they were already dead and some evil spirit gone mad were amusing himself by stopping them for a while between life and death before admitting them to eternal peace”.
Having been blind-folded, caged, kept in solitary confinement, denied contact with the outside world, and not being given a release date, the Guantanamo detainee’s lot fits with Arendt’s description of “Hades”, or even “Purgatory”.
The detainees did not fall into the category of either prisoner-of-war, who have clearly defined rights under the Geneva Convention, nor could they accurately be described as criminals under any national criminal law. Initially at least, they were left in the same legal limbo as the concentration camp inmate.
Even The Economist, which had been a supporter of the Bush administration’s ‘War on Terror’ asserted in 2003:
“The regulations deny him [the detainee] any enforceable rights of the sort that criminal defendants won as long ago as the Middle Ages…[Mr Bush] is setting up a shadow court system outside the reach of Congress or America’s judiciary, and answerable only to himself (The Economist 12/7/03)”.
Arendt outlined how this removal of legal rights is central to the workings of the concentration camp:
“The insane mass manufacture of corpses is preceded by the historically and politically intelligible preparation of living corpses…The first essential step was to kill the juridical person in man, this was done by placing the concentration camp outside the normal penal system, and by selecting its inmates outside the normal judicial procedure in which a definite crime entails a predictable penalty… In order to kill the judicial person in man, the concentration camp must under no circumstances become a calculable punishment for definite offences”.
We encountered a similar slide in Guantanamo where, again according to The Economist:
“You might not be told all the evidence against you. You might be sentenced to death… Your ultimate right of appeal is not to a judge but to politicians who have already called everyone in the prison where you are held “killers” and the “worst of the worst”. Even if you are acquitted or if your appeal against conviction succeeds you might not go free. Instead you could be returned to your cell and held as an enemy combatant”.
The intelligence gathering-worth of the Guantanamo experiment seems unlikely to have been significant. It’s hard to imagine that detainees held for so long could possibly have provided information about terrorist attacks. Instead its existence suggested something altogether more sinister. Arendt writes:
“The uselessness of the camps, their cynically admitted anti-utility, is only apparent. In reality they are more essential to the preservation of the regime’s power than any of its institutions. Without concentration camps, without the undefined fear they inspire and the very well defined training they offer in totalitarian domination … a totalitarian state can neither inspire its troops with fanaticism nor maintain a people in complete apathy”.
The United States may not be a ‘totalitarian’ state, but Guantanamo was designed to instil what Arendt describes as this “undefined fear”. The Rule of Law ceased to apply, an erosion that occurs by degrees. Guantanamo should have served as a wake-up call, for what happens when we forget the lessons of history, the lessons of the concentration camps.
This is not an idle intellectual question. A breakdown of values permeates all levels of American society, as it did in Germany under the Nazis. SS officers were not born monsters: many were regular people who became monstrous due to cruel and distant parenting (especially from damaged fathers) and military training. Similarly, US soldiers who committed the atrocities of Abu Ghraib were reacting to their training and backgrounds.
The rolling-back of human rights, especially where non-US citizens are concerned, that occurred under the Bush administration has given the Trump administration an opportunity to ignore long-standing principles of justice that demand re-assertion, and Obama failed to stop the rot.
We may draw a modicum of consolation from the confusion of the US President’s policies. Extreme brutality often demands unstinting dedication to an ideology such as was available to followers of Communism and Nazism. Thus, the dissident Soviet writer Aleksander Solzhenitsyn observed: “Shakespeare’s villains stopped short at ten or so cadavers. Because they had no ideology”.
The hope is that Trump has insufficient sophistication to be a true monster. The US Constitution and the continued liberality of over half of the US population, who voted against Trump, offers reassurance that the US cannot easily slide into Neo-Fascism, but worrying trends have developed nonetheless, especially where the treatment of non-nationals is concerned.
A state that relies on an intellectual tradition has its own inherent danger of undemocratic social control, but the opposite usually proves more catastrophic. Trump, an anti-intellectual, does not have to commit crimes against humanity directly. He and his acolytes can exploit the resources of the world thereby endangering large numbers of human beings while despoiling the natural world. He can flout international convention and sow confusion, rancour and division. Corruption often has the effect of throwing states into violent chaos. The New World Order gives rise to different criminal species.
The concentration camps remains a haunting spectre, showing what occurs in the absence of the Rule of Law. What happened at Guantanamo cannot be ignored. Moreover, the advance of a realpolitik view in international policy, especially associated with Henry Kissinger, permits a disregard for human rights. Moral dissonance is compounded by post-modern trends, and the unravelling effect of the internet. These viewpoints are represented by a Republican Party that currently holds the Presidency, majorities in the House of Representative, Senate and apparently even the Supreme Court. A significant proportion of the political class, and voting population, of the United States remains implacably opposed to international institutions and the Rule of Law.
As Hannah Arendt warns, the “killing of the judicial person” is the first stage on the journey to Hell.