40 years ago (4 dead in Ohio) and today.

40 years ago today (May 4) I was 10 years old, sitting at home, when I heard about something I thought unthinkable that had just happened about 40 miles away from my home. National guard troops had fired on unarmed students at Kent State protesting the Vietnam War, killing 4 and wounding another 9. Nine days later at Jackson State, police killed students and wounded another 12 who were protesting the war and the killings at Kent State.

It was inconceivable to me that unarmed students exercising their First Amendment rights had been shot to death in the United States,  but my childhood was filled with nightmares of that sort. In 1967 I remember driving through parts of Cleveland that were under military occupation as a result of just one U.S. city among hundreds that had had exploded that year and the previous one. And, of course, in 1968, Martin Luther King and Robert Kennedy were assassinated in little more than 2 months, disappearing the 2 most prominent voices calling for the U.S. to pull its troops out of Vietnam.

And, of course, we were all at the time convinced of the inevitability of nuclear holocaust.

So I laugh when I hear earnest students of mine who insist that terrorism is the greatest threat this country has ever faced. And when conservatives express the fear that President Obama threatens us with fascism. We should not be fighting wars we can’t win in support of corrupt regimes. And we have huge problems at home:

In 2005, 21.2 percent of U.S. national income accrued to just 1 percent of earners. Contrast 1968, when the CEO of General Motors took home, in pay and benefits, about sixty-six times the amount paid to a typical GM worker. Today the CEO of Wal-Mart earns nine hundred times the wages of his average employee. Indeed, the wealth of the Wal-Mart founder’s family in 2005 was estimated at about the same ($90 billion) as that of the bottom 40 percent of the U.S. population: 120 million people.

But I remember vividly how sad I was on May 4, 1970.

Vengeance breeds vengeance; we are a country of laws, not torture.

There’s creativity in legal thought, and then there’s “interpretation” utterly unhinged from any logic or authority to justify evils such as torture. Eric Martin at Obsidian wings points out another stupid mistake in any argument in favor of torturing in order to obtain information to aid the so-called “war on terror” — it discourages people from coming forward with information. People applaud “the underpants bomber’s father, Alhaji Umaru Mutallab, who had the strength of character to report his son’s activities to U.S. authorities despite the possible legal repercussions for his son.” But if a father knows his son will be tortured, he’s far, far less likely to turn him in. And, of course, if we’re trying to win the hearts and minds of, among others, Afghanis, aren’t we undercutting our purposes by betraying our morality and our laws? Martin writes:

Alienated Muslims that feel guilty for nothing other than being Muslim are less likely to cooperate with U.S. authorities in thwarting plots. Parents, siblings and friends will not be as quick to intercede if they think their loved one will be brutalized, psychologically scarred beyond repair and denied basic rights. Innocent victims of military strikes will be radicalized as enemies, not converted to allies.

Yet, despite the stakes, certain pundits would have us sacrifice potentially life-saving assets for the sake of maintaining a torture regime – a morally reprehensible practice in its own right, one that corrupts prisoner and questioner alike, and that produces inferior, unreliable intelligence regardless. Not only do they want to keep employing these self-defeating policies that sully our principles, they intend to demagogue the issues relentlessly. Dick Cheney and the GOP leadership – as well as their media enablers – use Obama’s refusal to torture and profile as political cudgels when, in reality, the blows will they attempt will fall most heavily on the American people in the end.

At the end of The Libation Bearers, the second play in the Oresteia trilogy, the story of the seemingly endless cycle of guilt and retribution that plagued the noble House of Atreus, Aeschylus asks:

Where will it end? When will it all/ be lulled back into sleep, and cease,/ the bloody hatred, the destruction?

The answer is the culmination of the third play, The Eumenides: Athena establishes a court of law as the remedy, in place of vengeance, for criminal guilt. At bottom, I think that vengeance is all the advocates of torture can legitimately claim we are getting from torture, and we’ve understood for thousands of years that vengeance does nothing but breed vengeance.

Addendum: I realized that in discussing the Oresteia in connection with torture and the rule of law, I was “betraying” my liberal arts background. But, of course, our blindness to the consequences of abandoning the rule of law because of the alleged necessities brought on by the 9/11 attacks goes hand in hand with a culture that has decided that money is the only valid measuring stick of value and that “free” markets are the best means of making all our choices, even our choices about war.

And the market is governing our choices about education, making liberal arts undergraduate majors so unpopular they’re beginning to disappear. Thus, according to an annual survey by the University of California, Los Angeles, of more than 400,000 incoming freshmen:

In 1971, 37 percent responded that it was essential or very important to be “very well-off financially,” while 73 percent said the same about “developing a meaningful philosophy of life.” In 2009, the values were nearly reversed: 78 percent identified wealth as a goal, while 48 percent were after a meaningful philosophy.

People don’t read the Oresteia anymore. I would bet only a handful of my students even know what it is. So I’m afraid the only thing I don’t agree with when Glenn Greenwald writes the following is any particular sense of being astounded:

It’s truly astounding to watch us — for a full decade — send fighter jets and drones and bombs and invading forces and teams of torturers and kidnappers to that part of the world, or, as we were doing long before 9/11, to overthrow their governments, prop up their dictators, occupy what they perceive as holy land with our foreign troops, and arm Israel to the teeth, and then act surprised and confused when some of them want to attack us. In general, the U.S. only attacks countries with no capabilities to attack us back in the “homeland” — at least not with conventional forces. As a result, we have come to believe that any forms of violence we perpetrate on them over there is justifiable and natural, but the Laws of Humanity are instantly breached in the most egregious ways whenever they bring violence back to the U.S., aimed at Americans. It’s just impossible to listen to discussions grounded in this warped mentality without being astounded at how irrational it is. What do Americans think is going to happen if we continue to engage in this conduct, in this always-widening “war”?

The Bush Administration’s tyrannical torture policies and its rewards

I’ve written here before of the Bush Administration’s “interpretations” of law that lied about and distorted the rules on which their authors based their conclusions.  One point I made was that achieving real intelligence in any creative endeavor, including law and art, requires acting within constraints. Anthony Lewis has an excellent article in the current New York Review of Books that goes into some detail on the history of what he calls “Official American Sadism.” Among other matters (read the whole article), I am grateful that he points out that with respect to torture and the treatment of prisoners in the so-called “War on Terror,” many U.S. lawyers, military lawyers who have represented “enemy combatants,” have followed the “rule of law,” the very constraint that keeps the President from acting like an arbitrary tyrant. In contrast to those real heroes, Lewis’s suggests that members of the administration have committed war crimes, a point that is certainly not far-fetched, though I doubt we’ll ever see them prosecuted:

Unlike John Yoo and William Haynes, most American lawyers who have been involved in the issues of torture and boundless detention have defended American ideals of justice. That has been strikingly so in the case of lawyers in the military services, the judge advocates general. Major Frakt, whose powerful argument on behalf of Mohammed Jawad I noted above, is one example among many. Large numbers of private lawyers have volunteered their time and struggled against official obstacles to represent prisoners. . . .

To date the “enablers of torture” . . . are doing fine. President Bush, Vice President Cheney, and David Addington remain in office. Jay Bybee, who issued the legal opinion that said the president had unlimited power to order the use of torture, was nominated and confirmed as a judge of the United States Court of Appeals for the Ninth Circuit before his torture role became known. John Yoo is in his professorship at the Berkeley law school; the dean, Christopher Edley, said in April that tenure protected him there and that his clients—President Bush et al.—were “the deciders.” Yoo is also regarded by television programs and by the opinion pages of newspapers, including The Wall Street Journal and The New York Times, as a legitimate voice on issues of presidential power, and he appears frequently.

Yoo and Addington appeared in June before a House Judiciary subcommittee; they ducked questions about their responsibility. When Addington was asked whether it would be legal to torture a detainee’s child, he replied: “I’m not here to render legal advice to your committee.” [Yoo, on the other hand, has not been as evasive, at least in the past. In December 2005 he stated in a Chicago debate that there is no law that could prevent the President from theoretically ordering the torture of a child of a suspect in custody - including by crushing that child’s testicles.”] William Haynes, the former Defense Department general counsel, appeared before a Senate committee and repeatedly said, in answer to questions, that he could not remember. A Washington Post column on his testimony was headlined “Abu Ghraib? Doesn’t Ring a Bell.”

Torture by officials is prohibited by US criminal law as well as by the international Convention Against Torture and the Geneva Conventions. According to the new book by Jane Mayer, the International Committee of the Red Cross concluded in a report last year that interrogation methods used by the CIA on a high-level prisoner “categorically” constituted torture. Her book, The Dark Side: The Inside Story of How The War on Terror Turned into a War on American Ideals, says the ICRC report was sent to the CIA, the detaining authority, which “shared it with the President and the Secretary of State.” Mayer writes that the report “warned that the abuse constituted war crimes, placing the highest officials in the US government in jeopardy of being prosecuted.”

(hyperlinks added; footnotes omitted).

The wars are over! The wars are over!

Interpretation, of course, is a creative endeavor, whether it’s Biblical hermeneutics or statutory interpretation. Last week, the United States District Court for the District of Massachusetts in U.S. v. Prosperi (pdf) needed to determine whether the term “war” in a federal statute includes the conflicts in Iraq and Afghanistan. Interestingly, the court found that they are not now “wars,” though they “were.” The defendant was arguing that they never were “wars,” that Congress intended the statute (which stops the running of the statute of limitations applicable to the crime the defendants were being tried for) to apply only to conflicts in which Congress had declared war. Congress has authorized the President to use force in Afghanistan and Iraq but never declared war.

The court determined, essentially, that the conflicts in Afghanistan and Iraq were “wars” because they constituted armed conflicts of sufficient size and scope. In essence, they were wars because they looked like wars, talked like wars, and walked like wars.

The court also determined, however, that the wars have ended. The court had to do so because under the statute the applicable statute of limitations begins to run again “three years after the termination of hostilities as proclaimed by the President . . . .” The court noted that it is very unclear when these wars ended or will end: “Traditionally, the end of a war is marked by the signing of a formal peace treaty. However, formal surrenders like those of Germany and Japan at the end of World War II, like formal declarations of war, are the modern exceptions.” The court also admitted that “a strong case can be made, given the continuing expenditures and loss of life in Iraq and Afghanistan, that the United States remains at war.” Nevertheless, the court finally decided the wars ended, respectively, with the recognition of the government of Hamid Karzai in Afghanistan and with Bush’s “Mission Accomplished” speech in Iraq:

On December 22, 2001, the United States formally recognized and extended full diplomatic relations to the new government of Hamid Karzai.37 That recognition signaled the cessation of a state of war with Afghanistan. Accordingly, the statute of limitations with respect to the Afghan conflict, expired on December 22, 2004. Similarly, on May 1, 2003, President Bush, while aboard the USS Abraham Lincoln, proclaimed that “[m]ajor combat operations in Iraq have ended. In the Battle of Iraq, the United States and our allies have prevailed. And now our coalition is engaged in securing and reconstructing that country.” Consequently, with regards to the Iraq conflict, the statute of limitations expired on May 1, 2006. (footnotes omitted)

I thought you’d like the good news.

p.s. The government apparently argued, but not very strenuously, that the ongoing “war on terror” constitutes a war as well. Of course, that would mean we’ll forever be at war. It’s not the first time the Bush Administration has made this argument; it has done so continuously since 2001. The court, like any body I’ve heard of presented with the argument, didn’t take it seriously:

At the hearing on the motion, there was also discussion of a global “war” on terrorism, waged principally against Osama bin Laden and al Qaeda. The use of the metaphor of war to describe the struggle against terrorism has been criticized. See Sir Adam Roberts, The ‘War on Terror’ in Historical Perspective, 47 SURVIVAL 101-130 (Summer 2005). I do not understand the government to be pressing the argument that the United States is “at war” with al Qaeda, at least in any traditional legal sense.

Novelty alone is not creativity, whether in the legal strategy for the war on terror or the invention of the Segway

One measure of creativity must be its effectiveness rather than its mere novelty. On that score, as Jane Mayer noted back in the July 3, 2006 issue of the New Yorker, the Bush Administration’s legal strategy for the war on terror might have been radical, even unprecedented, but can hardly be called creative:

[T]he Administration’s legal strategy for the war on terror[,] [k]nown as the New Paradigm, . . . rests on a reading of the Constitution that few legal scholars share—namely, that the President, as Commander-in-Chief, has the authority to disregard virtually all previously known legal boundaries, if national security demands it. Under this framework, statutes prohibiting torture, secret detention, and warrantless surveillance have been set aside.

. . . The overarching intent of the New Paradigm, which was put in place after the attacks of September 11th, was to allow the Pentagon to bring terrorists to justice as swiftly as possible. Criminal courts and military courts, with their exacting standards of evidence and emphasis on protecting defendants’ rights, were deemed too cumbersome. (emphasis added)

Over two years since Mayer’s article, nearly seven years since September 11, 2001, what have we got? As the Christian Science Monitor puts it:

One conviction, of Salim Ahmed Hamdan, the personal driver of Al Qaeda leader Osama bin Laden. After a two-week-long trial and three days of deliberations, the military court in Guantanamo Bay, Cuba, convicted Mr. Hamdan of providing material support for terrorism by driving Mr. bin Laden around Afghanistan. In spite of the conviction, legal debate regarding the trial rages on.

I’m not merely ranting about a war in Iraq I’ve opposed since its inception, or of the fraudulent legal analysis that produced this Administration’s conclusions regarding what constitutes torture. I’m pointing out that results count, and what is more telling than an utter and complete failure to meet the very purpose of a radical departure from existing norms? It doesn’t take a cognitive psychologist to recognize the differences between mere novelty and genuine creativity, but it’s plain Arthur J. Cropley does:

The cognitive approach to creativity emphasizes the processes involved in producing effective novelty, as well as the control mechanisms that regulate novelty production, and the structures that result. Merely novel structures display surprisingness and incongruity, to be sure, but they must also be meaningful and practicable to be effective.

Do you remember the Segway? (That’s Dick Cheney, of all people, riding one up there in the upper right of this post.) As Jeff Foust wrote two years ago in The Space Review, in 2001 (before 9/11, of course),

the question being pondered by millions was simple: “what is IT?” “IT” was the codename for the invention that had reportedly been developed by famed inventor Dean Kamen. Details about IT (also known as “Ginger”, its internal codename) were scant . . . .

What was known was that IT was some kind of transportation technology. The Inside report . . . said that the device had wowed over luminaries like venture capitalist John Doerr, who invested in the project while claiming it was as revolutionary as the Internet; Steve Jobs, the Apple co-founder who reportedly claimed that “cities would be architected” around the device; and Amazon.com founder Jeff Bezos, whose trademark laugh could be heard echoing through the halls of Kamen’s New Hampshire headquarters as he tried out the device during a June 2000 visit. The potential upside of this device was seemingly limitless, providing a sharp and hopeful contrast to the dot.com world, which was crashing to Earth at the same time. The speculation spawned a web site, theITquestion.com, where visitors traded the latest rumors on just what IT might be.

Kamen officially unveiled the Segway on the ABC TV show “Good Morning America” in December 2001. The response was… underwhelming, in many quarters. “I’m tempted to say, ‘That’s it?’” co-host Diane Sawyer blurted out when the sheet covering the Segway was pulled away. “But that can’t be it.”

But that was it. From a technological standpoint Segway was a revolutionary invention: a computer-controlled, self-balancing “human transporter” that was highly maneuverable yet easy and safe to use. However, to the public, whose expectations had bloomed in hothouse of hype fueled by the media and the Internet over the last year, the Segway seemed more like an odd-looking scooter than the device that was as revolutionary as the Internet and would force people to rearchitect cities. . . .

It’s little surprise, then, that Segways failed to sell at anywhere near the levels its backers hoped. When the company issued a recall notice in September 2003 to correct a software problem, it said only 6,000 devices had been manufactured to date. Kemper, in his book Reinventing the Wheel (the softcover version of the book about the development of the Segway that was originally published under the title Code Name Ginger), reported that as of summer 2004—the last date sales figures had been released—less than 10,000 Segways had been sold. (Segway’s media relations office failed to respond to a request last week for updated sales figures.) That’s a far cry from the pre-release belief, voiced by Doerr, that Segway would make its first billion dollars faster than any other company in history. No one seems to be in a hurry these days to redesign cities around the Segway; after all, when was the last time you saw a Segway rolling down the sidewalk?