Friday, October 21, 2016

Pardon me not

Alan Turing
Somebody sent me a link to a news item the other day about the decision by the powers that be in Britain to “pardon” all the gay men (I think the law only applies to men) who were arrested in the past for crimes like “buggery, gross indecency and loitering with intent.”

My first response was anger.

Who the hell are you to presume the right to "pardon" me, said the voice in my head. You want to "pardon" me for committing a crime? It's on your head, you blinkin’ twit, that what I did was a crime in the first place!"

It’s me who should pardon you for being such a retrograde bigot. Like you, we all did things in the past we are ashamed of today.  I'm happy to see you are no longer hung up on the sex lives of others, and sure, it's good to let bygones be bygones.

But pardon me?  Come off it!

I then read the article about the new Turing Law, as it's being called (a wonderful way, at least, to honor Alan Turing) and was not surprised to find I'm not alone in this reaction.  The article mentions a 93-year-old gay activist from Brighton named George Montague who was among those swept up in the legal prissiness of the day.  He refuses to accept a pardon.

The problem is by now a familiar one.  It is the gap between legal terminology and words as we use them in daily life.  If in passing the Turing Law they had announced only that they were going to “correct the injustice” or “put right the damage done to gays,” there would, I think, have been a huge sigh of relief.  Some “it’s about damn time!” responses, but a much more general welcoming of the change in attitudes in Britain toward LGBT people.   It's the use of the word "pardon" that gets under your skin.

The legal term “to pardon” is the word used to mean “remove charges,” so, properly framed, this is a story of the justice system righting itself. Gerald Ford pardoned Nixon for illegal wiretapping.  I wouldn't have, but the "dignity of the White House" was never a priority for me. Nixon had clearly done wrong. 

Unfortunately, in daily parlance, one “pardons” a person for doing an actual wrong. These men, consenting adults who sought each other out for sex, did no wrong.  There’s nothing to pardon.

Well, let me back up here.  Turns out this is a sticky business because the charge of “lewd behavior” covered a multitude of sins, and folks of a conservative bent are pointing out, with good reason, that a blanket “pardon” might include those who did harm to others – who took advantage of the vulnerable and forced them into sex against their will.

There’s the rub.  When you use a trumped up excuse to go after someone, it can come back at you.  Go into a private space, like a gay bar, grab somebody dancing with somebody of the same sex, and throw them in jail for “lewd behavior,” and you lose the moral high ground you need when you then want to go for a sexual aggressor on the same charge.

This issue bugged the hell out of me recently when Donald Trump began hitting back at Hillary Clinton because, as he put it, her husband “did far worse.”  Forget the by now familiar habit Trump has of responding to things like a five-year-old.  His mode of interacting with the world is usually, “Johnny hit me first!” What got lost was the distinction between sex and violence. Between consent and aggression.

The prissiness of the Victorian age is still with us.  Hillary was married to a horn-dog.  Bill Clinton pulled a stupid that will go down through the ages.  He had an intern in the Oval Office on the floor on her knees giving him a blow job.  Couldn’t get tackier if you tried.

Now correct me if I’m wrong, but wasn't Monica Lewinsky a consenting adult?  There never was any evidence that she was forced into a sex act.  What she did was inappropriate, and that’s an understatement.  But there was never any way to put it down as an act of violence.  The issue in Trump’s case was – or should have been – sexual aggression, sex with people against their will.  That is, and should remain, a crime.  (And yes, it's entirely possible that Trump is telling the truth for a change and the "crooked Hillary" campaign got these ten women to lie under oath and claim Trump was sexually aggressive. That seedy issue has yet to be worked out.)

If we could just get past the church’s brilliantly sinister decision to get control of people by making morality center on sex, and recognize that the real ills of this world center on violence and deceit – and not sex between consenting adults – we could eliminate the need for folks at some future date to “pardon” people for doing what comes naturally.

We've been down this road before with the word tolerance.  Just as the good folk of the British legal system think they are doing good with pardon, most people think they are doing good when they preach tolerance.  But it’s the same inclination to place oneself in a superior position.

“What the world needs is more tolerance of others.”  Sounds good, right?  Until you put tolerance into context and you come up with things like, “I’ll tolerate you for being Jewish.”  Or “I’ll tolerate your after school work with handicapped kids, but I think you should be working full time on your MBA.”

I don’t need your tolerance, and I don’t need your pardon.

I need your recognition that we are equals, and that we have common problems to worry about.

Let’s get on with those.

photo credit

Added 4:15 p.m. - What escaped my notice until just now is the fact that Germany did the same thing the Brits are now doing, earlier this month.  But here the focus is on compensation, and not simply on giving the men a pardon.  They have set aside 30 million euros to compensate the 140,000 men convicted, 50,000 of those since the end of the Second World War.  About 5,000 men are expected to apply for compensation.  The notorious "Paragraph 175" that made gay sex illegal was abolished in West Germany in 1995.  East Germany abolished it as early as 1968.

Telling is the phrasing of the announcement.  According to the Minister of Justice, Heiko Maas, “We cannot completely undo these outrages of the rule of law, but we want to rehabilitate the victims.”

That's a damn sight better than "We will pardon you," I'd say.

Tuesday, October 18, 2016


Freispruch! (Not guilty!)
Back in my teaching days, one of my favorite courses was my seminar in Ethics.  I taught in a program dealing with language and culture, and my focus was on how the concepts of right and wrong vary over time and space.  The goal was to help students become aware of what happens when cultures with conflicting values come in contact.  As an educator, I was also hoping to raise consciousness in my students about the importance of clarifying one’s own values and building a rational basis for an ethical system in a world of constant change.

At some point, we would run through the tried and true standard ethical dilemmas.  The survivors on a life raft, for example.   If there is no way to keep the raft afloat with more than five people and there are six of you, do you toss someone overboard?  If so, who?  Is a doctor’s life worth more than a carpenter’s life?  A child’s life worth more than a 60-year-old’s?  Would you torture somebody to prevent a nuclear disaster?

Occasionally, students would protest these hypothetical situations.  Ethics, many argued, are contingent.  I’d torture someone to save a loved one, my child, for example.  But not to save a stranger.  One student once told me he was offended that I should be doing this kind of exercise in the first place.  He should not be forced to reveal his values.  They were his and nobody else’s business.

I followed the Abu Ghraib story and the example of water boarding in particular.  Not just because I was obsessed and depressed with the thought that America had failed a major moral test miserably, but because I was fascinated by the reasons people came down against it.  A Kantian, or somebody at Stage 6 on the Lawrence Kohlberg scale, people who think principles are higher than individual needs or wants, will tell you you need to establish the right thing to do and then do it, period.  Others will want to make room for all sorts of contingencies.  So I became fascinated with how many people would say torture, water-boarding in particular, was wrong – not because it was morally wrong but because it was ineffective and often led to false information.  The implication, obviously, is that it would be all right if it actually worked.

This week, Germans turned their country into an ethics classroom.  A stage play entitled Terror, written by Ferdinand von Shirach, one of Germany’s most respected writers, was adapted* for television.  The play poses the question, "Would you shoot down a passenger plane – particularly in the light of the 9/11 experience – to save a football stadium filled with spectators?"

It is the story of a plane carrying 164 passengers which has been commandeered by a terrorist intending to crash it into Munich’s football stadium filled with 70,000 people.  A major makes the decision to shoot the plane down, thus committing what some will designate the “lesser evil.”

Complicating the question for those who place a high value on the law is the fact that until recently Germany had a law allowing such measures to be taken, in the event of a terrorist act.   Following 9/11, Germany instituted what was known as the Luftsicherheitsgesetz – the “Aviation Security Act on January 15, 2005.”  However, a year later, on February 15, 2006, Germany’s Federal Constitutional Court, their Supreme Court, declared that law unconstitutional.  Their reasoning was based on Article 1 of Germany’s constitution, its “Basic Law (Grundgesetz), which reads: “Die W├╝rde des Menschen ist unantastbar,”  ("Human dignity shall be inviolable" in the official English translation.)

Article 1 has been interpreted to mean that one may not justify the taking of a life by the saving of another, no matter how many persons are involved.  The court is thus following the Kantian prescription, “Let justice be done, though the world perish.”  Kant’s approach to ethics is in contrast to the utilitarian argument that actions must be taken to bring about “the greatest good for the greatest number.”    Utilitarians focus on the outcome of an action and judge it accordingly.  Kant’s “imperative” is “categorical,” that is it is true for all times and all occasions, without exceptions or conditions.  You can’t shoot down a plane, because you can’t kill people.  Period.

So when Major Koch, upon whom the duty falls to decide who lives and who dies, kills the 164 to save the 70,000, he has done wrong, according to Immanuel Kant.  And more relevant to his fortunes, he has broken a fundamental law of Germany’s modern democracy.

Problem is that while Germany’s Supreme Court would seem to be Kantians, most Germans are clearly utilitarians.  And a gap this wide between a people and its government is what makes this a big story.

Hart Aber Fair panel, left to right: Jung, Wassmann,
Bahr, Baum, Plasberg (standing)
When the TV film was shown, it carried the title, Terror – Ihr Urteil (Terror – Your Verdict), and the public, effectively turned into a national jury, was invited to telephone in their decision to a talk show, Hart Aber Fair (Tough But Fair), which then released the results and debated them with four guests.  The two panel members who pronounced the major innocent of murder included Franz Josef Jung, a former defense minister, and Thomas Wassmann, a military man and fighter jet expert.  The two who pronounced him guilty included the theologian and bishop of Hannover, Petra Bahr, although she defended her position on grounds less theological than constitutional; and Gerhart Baum, the former Minister of the Interior, a passionate defender of the constitution.   If your German is up to it, the program is available here.  

The show, and thus the ethical dilemma, captured the imagination of the nation.  It had an audience of 6.88 million viewers.  That’s a market share of more than 20%. 

There are two sources of public opinion on the question of whether shooting down the plane was the right thing to do, the stage play and the television version.  When the play was performed around the world, in Germany, Switzerland, Hungary, Venezuela, Israel and Japan, audiences were asked to vote on Major Koch’s guilt.  Germans, for the most part, found Major Koch not guilty of murder by a wide margin – 90,357 to 60,897 of the votes tallied.   The range was even greater in Switzerland, where 2424 people voted not guilty to 882.  Tallies have not yet been taken in Denmark and Israel, but Venezuela and Hungary show similar responses to the German speaking countries (Austria's numbers on the television version were virtually identical to the German numbers.)  With the exception of Japan, where the vote went 569 not guilty to 958 guilty, the not guilty votes outweighed the guilty votes about 60/40. 

The Bundestag seems to have had the popular sentiment on their side when they first passed the Aviation Security Act, allowing a commandeered plane to be shot down.  And the Constitutional Court, their defenders might argue, did what Supreme Courts are supposed to do, determine constitutionality on the basis of reason, and not emotion.  

In real life.  But what about the television trial of Major Koch, who is found innocent of a crime? An overwhelming majority of citizens agree with the TV court, despite what one assumes would be the decision of the constitutional court in real life.  In the Hart Aber Fair discussion, the defense minister endorses the TV court’s decision.  The argument that one cannot measure one life against another is bogus, he asserts.  We do it all the time, for example, when it comes to saving a mother’s life over a fetus’s life, when faced with that choice.  The Catholic Church has made it clear the doctor’s obligation is to the newborn.  But the state argues a family can always have more children, but once the mother is dead, she’s dead.  And in wartime, medics performing triage routinely neglect a patient near death in order to save three with better life prospects.

But how to explain the wide discrepancy between the not guilty vote following the theater performances and the not guilty vote following the TV show?  Both agreed, but the TV audience voted for not guilty by a much larger margin – 87 to 13.  

Bishop Bahr attempts to make the point that the vote was not, in fact, a national referendum.  It was a vote on which ending was appropriate for a television program.  (They had prepared two endings, one in which Major Koch was found guilty, one in which he was found innocent, and it's the "best ending," technically, that they were voting on).  What governs the decisions of a law-making body in real life is not necessarily the same as what influences a television audience primed to be entertained. Florian David Fitz, who played Koch, for example, the major who shot down the plane, is one handsome dude.  As Bahr points out, he might easily be mistaken for Klaus von Stauffenberg, the man who made the attempt on Hitler’s life – a hero, in other words.  The “hero effect” might go a long way to explain the discrepancy between the 87-13 figure in the film as opposed to the 60-40 split in the theaters.  You watch a man on a stage from some distance.  On television, you watch his anxiety and his guilt and his vulnerability in close-ups on his eyes.  Then there’s the technology problem.  At some point, the phone lines jammed.  The figures are not necessarily representative of those who actually voted, much less of those who might vote in a real referendum. 

None of this detracts from the fact that, for a time, the German nation is being urged to debate a moral dilemma and consider the responsibilities of democratic institutions to follow the rule of law, or justify exceptions to the rule of law.  Such debates will quickly lead to others.  Security debates invariably involve the notion of privacy. Do you want police to be able to spy on everyone?  It would make everyone safer.  And it could perhaps head off such dilemmas as whether to shoot down a plane with 164 innocent passengers in it in the first place.

The former Minister of the Interior loses his cool in the panel discussion.  At one point the moderator asks him directly, “Are people wrong to find him innocent?”  “Yes,” Baum answers.  “They don’t know the law.”

Hard to argue with that, although one might raise the question, "If we don't permit our military to go after known terrorists, (remember, they are certain in this case) aren't we encouraging more terrorist acts? Wouldn't one successful attack on 70,000 football fans be certain to encourage another?"  To say nothing of sending the nation into a national trauma. How long would the country abide by the ruling that it's OK to sit tight and allow 70,000 people to meet their death, because "it's the law"? Would there not be riots?

And then there's the response to this response, "How is this not mob rule?"

And what about the argument that the folks in the plane are goners in either case?  Does this not suggest one should give them a part in history as tragic heroes and not define them only as tragic victims?

Or do you want to leave this decision to fate (or God, if you prefer)?  Or worry about guilt, and place it on the terrorists and not the major?

To which you have to ask, is doing nothing not also sinning/being guilty of criminal neglect of duty? Is being inactive the same as being responsible?

The questions go on and on.

It’s tempting to argue, as many have, that the national ruckus raised by populists like Frank Plasberg and his TV program have created more sound and fury than rational thought.  Der Spiegel suggests as much.  Interior Minister Baum lays blame on the author, von Shirach, for even getting this (bogus?) ball rolling (and missing the point that Shirach himself thinks the major is guilty.)

I’m persuaded by my years in the classroom watching otherwise tuned-out students come alive when faced with life and death questions that this debate is not a mistake, legitimate though the protestations of its faults may be.  I’m also persuaded by watching the sad state of political debate we’ve fallen into in the United States, that there are better things we might be doing, things such as this German debate, in the name of democracy.

*The play was adapted for television by von Shirach and the director, Lars Kraume and a third director and producer, Oliver Berben.  [To get a sense of Shirach as both writer and criminal defense lawyer, link here.]  It has been called "the TV experiment of the year."

panel on „Hart Aber Fair“

Saturday, October 15, 2016

Reinforcing the Authority of Kings

Matt Taibbi has a way with words.  His latest article in Rolling Stone on “The Fury and Failure of Donald Trump” is a gorgeous piece of writing.  Read it for the content.  Splash around in it for the imagery.

Taking up the Trump phenomenon, Taibbi makes the now obvious point that others are making as well: that Americans are between a rock and a hard place, that what we want is change, but because of Trump we have no option but to support the status quo.  

I see the alternative as putting a grenade into the hands of a three-year-old.  Taibbi uses less clumsy metaphors.

He risks beating a dead horse.  Most people I know are sick to death of this election campaign and we feel like we're crawling through the desert with an empty water canteen, hoping we can make it to the next oasis alive.  

Taibbi's writing reminds you that this seemingly endless journey can be fun, if you don't lose your sense of humor.

A few quotes:

Taibbi sums up the mess Trump has made for himself:

Trump, in the space of a few hours, had become the mother of all pop-culture villains, a globally despised cross of Dominique Strauss-Kahn, Charlie Sheen and Satan.

It begs the question, how did we get here?  Why Trump, for God’s sake?  Well…

All 16 of the non-Trump entrants were dunces, religious zealots, wimps or tyrants, all equally out of touch with voters. Scott Walker was a lipless sadist who in centuries past would have worn a leather jerkin and thrown dogs off the castle walls for recreation. Marco Rubio was the young rake with debts. Jeb Bush was the last offering in a fast-diminishing hereditary line. Ted Cruz was the Zodiac Killer….  By the time the other 16 candidates finished their mass-suicide-squad routine, a tail-chasing, sewer-mouthed septuagenarian New Yorker was accepting the nomination of the Family Values Party.

On the fate of the clueless Republican voter:

Duped for a generation by a party that kowtowed to the wealthy while offering scraps to voters, then egged on to a doomed rebellion by a third-rate con man who wilted under pressure and was finally incinerated in a fireball of his own stupidity…

On Mike Pence:

The man who once opposed clean needles on moral grounds was now ready to march through history with a serial groper and tit-gazer

On Rudolph Giuliani’s role in the campaign:

How Giuliani isn't Trump's running mate, no one will ever understand. Theirs is the most passionate television love story since Beavis and Butthead. Every time Trump says something nuts, Giuliani either co-signs it or outdoes him. They will probably spend the years after the election doing prostate-medicine commercials together.

On the problems the Republicans have been faced with:

The challenge for the leaders of the Republican Party: it's hard to keep the loons out when you're scraping to find people willing to sell rich-friendly policies to a broke population.

On Trump’s chutzpah:

Shackled! Only in America can a man martyr himself on a cross of pussy.

Taibbi sums up the country’s best course of action.   It’s a sign of the times that Taibbi, like the rest of us, is singing Hillary’s praises.  Sure, she’s the Queen of Wall Street.  So why doesn’t she stop denying it?  That’s where we are.  We could go off the grid and live in the dark.  Or we could have four more years of business as usual with a candidate who knows the ropes.  In time, we need to get to the real issues like the gap between rich and poor in America and a totally corrupted political process. Get this election over with, admit defeat, put Hillary in, and get on with the show. 

Taibbi calls the American political process a TV reality show, which explains Trump’s remarkable success in the first place:

… (T)he Campaign Reality Show as it has evolved over the years…(l)ike every TV contest…discourages subtlety, reflection and reconciliation, and encourages belligerence, action and conflict…. It's a divide-and-conquer mechanism that keeps us from communicating with one another, and prevents us from examining the broader, systemic problems we all face together.

We’ve now seen that reality show.  It’s done with, and the hero is dead.

Built up in the press as the American Hitler, he was unmasked in the end as a pathetic little prankster who ruined himself, his family and half of America's two-party political system for what was probably a half-assed ego trip all along, adventure tourism for the idiot rich.

Taibbi articulates the dismay of the American left.  Thanks, Donald.  Thanks, Republican Party.  We’re voting for the status quo now.   The Queen of Wall Street.  There simply is no realistic alternative:

If he goes on to lose, he will be our Bonaparte, the monster who will continue to terrify us even in exile, reinforcing the authority of kings.

There’s no justification for putting all the blame on the Republicans, of course.  Democrats participate in this process of selecting leaders from alternate dynasties.  Republicans didn’t write our Bush-Clinton-Bush-Obama-Clinton history all on their own.

But that’s a problem for another day.  Tomorrow, if we are able, we will rebuild.  Today, we simply pick up the pieces.