Civil government, so far as it is instituted for the security of property, is in reality instituted for the defense of the rich against the poor, or of those who have some property against those who have none at all . -- Adam Smith, The Wealth of Nations
The Bar Association of New York some time ago offered a conference with the provocative title, Is Law Dead? Invited was, in addition to the usual bevy of legal types, Enlightenment historian Peter Gay, whose penchant for candor and directness proved steadfast: "But, as I said at the beginning, we must look at the present [state of American law] with some dismay. And one reason for this dismay is that I should find it necessary to remind you of such commonplaces." Two points are especially noteworthy. First, this was one of those uncommon occurrences when a profession requested an outside critique. Second, we are again reminded that law is built from commonplaces presumed to express truths in the service of justice.
In legalese that might curl a lawyerly brow, let's say that authority is essentially a 'property in power'. Which is to say, in more colloquial terms and with particular reference to offices, that authority may claim to be a legitimate "interest' in such power (because legally recognized) without which the office could not effectuate its obligations. As for office holders on good behavior, they retain a usufruct in such interest, not terribly unlike a lease agreement to have the privileged use of a dwelling under stipulated terms and conditions. Stewardship exists to ensure that any and all such usufructs are used well and wisely: the officeholder must do as obligated, to an expected standard of care and/or diligence, and so as not to place beneficiaries, the public, or the office itself, at unreasonable risk. Stewardship is our friend, is every office's friend, and is the greatest of all possible friends a sovereign could hope for. It is the friend of all except those refusing accountability -- of whom the worst offenders of all are those in government and the military.
Perceived truth readily admits of four categories: favorable because useful, neutral, unfavorable because uncomfortable, and unfavorable because dangerous. Governments and militaries will fall over themselves defending the proposition that the fourth alone deserves 'classified' status. Everyone else knows, however, that the other unfavorable category in fact makes up the lion's share of classified information. At some point it takes whistle-blowers to force open the issue so that courts might finally wise up and recognize that they exist to be intelligent and not to reflexively back up the shenanigans that the strict letter of the law enables. But courts aren't so good at justice, are they? The answer, when it comes to truths ensuring accountability or vouchsafing the rights of the common man, is pretty elementary, and which everyone knows: No, largely because in this, the greatest democracy on earth, the law services the highest bidder. The sole exception to this rule (one you can drive a Mack truck through) is when it obsequiously serves the instrumentalities of power, which is our concern here.
Today is the appointed outing of a book documenting a secret military operation, a Navy Seal's personal memoir of the day when Bin Laden was taken down. At a minimum the author is in doodoo for having never submitted the ms. to the military for prior approval, a process necessarily as corrupt as the classification methodology itself. The Catholic Church requires the nihil obstat and imprimatur for purposes of maintaining moral consistency and doctrinal adherence. To the church it is these, as much or more than facts, that best reflect truth. The disservice to fact and reality is what makes this the best parallel for the U. S. system of classifying material, a system that is not just flawed, but wrong in principle and occasionally disastrous in effect.
It is wrong in principle because it would exercise prerogatives exceeding the authority granted to government and military officials. Specifically: Withholding truth because merely discomfiting is a breach of the stewardship of the relevant offices (i.e., the category of which represents and defends the sovereign). When exposed to the light of public scrutiny, the cupidity of those in 'high' offices offers the evidence par excellence justifying the sovereign's right and duty to hold officials accountable. It is indeed the chief such obligation of the citizenry of a democracy. Thus when embarrassing facts are withheld to protect us from truth in order that the comforts and security of powerful people are not thereby discomfited, the sovereignty itself is tarnished and, in a very real sense, diminished. It is ultimately disastrous because unchecked cupidity escalates to outright stupidity which, unbridled for want of accountancy, becomes brazenly perfidious and not just a little dangerous.
No one denies the need to withhold, at least temporarily, material that would compromise operations or lives. No one, however, has apparently forced folks to sit down and determine what such pretty phrases really mean. That exercise is long overdue. To hear it from experience, the mere protest of war seems occasionally to qualify. We have yet to realize any blowback from all those tens of thousands of documents from Wikileaks. It seems that the mere boldness of a whistle-blower, the independent and unaccountable nature of that process, implies an unacceptable risk, never mind that no risk (except for momentary embarrassment) has yet materialized. Why do such dirty hands come to the table to complain so bitterly of whistle-blowers whose alleged faults are identical in form, but infinitely less dangerous in content, to those of the complainants?
The plain fact of the matter boils down to a fundamental principle of human nature: power and perks breed a sense of deservedness, and with that the allowance to justify more of the same. None of this ever happens without a concomitant attempt to avoid accountability. Not a single one of us is without the native impulses, and only a few of us live with the internal compass to hold ourselves responsible enough to avoid these problems, at least not without external assistance. The whole point of the office is to give beneficiaries reason to trust that officeholders will rise above nature and secure through stewardship obligations the requisite protections and assurances owed to clients and beneficiaries.
Where offices permit prerogatives dependent on specialized knowledge, the officeholder has a built-in excuse, namely, that only they can know enough to hold themselves accountable. But this is barely a half-truth. No one questions the right of an official to exercise independent judgment on account of specialized knowledge. The issue is one of negligence, which requires no one but impartial observers of reasonable intelligence to weigh the evidence. Courts do exactly that sort of thing, with or without expert witnesses (who are rendered an all but useless and supremely expensive sidelight given that we assign a 'pro' and a 'con', meaning that the jury still determines the issue on effectively the same basis as if without them).
Of course, the process of courts is essentially the honor-based system encouraging the worst traits -- the antics of adult children -- of that otherwise noble cultural type. Winning is more important than justice; pitting high-test testosterone against the same (estrogen will do as well, by the way) is not unlike the "ordeals' of a thousand years ago. Witness/character assassination was never permitted in Roman trials for abuse of office, presumably because it was so easily abused, and was in any case inappropriate where members of the nobility and respected families were the usual defendants in such cases. American lawyers are the quintessential experts in the baser arts of that trade. Is this a legal system mature enough to handle "real law' like breech of stewardship? One has to seriously wonder.
Which brings us to the most embarrassing observation of all: we are required to rely on a system which, despite obvious advantages and safeguards, is nonetheless limited by the deficient training of its practitioners. Professional offices are protected by law, which is itself a brutally simplistic locution that does more harm than good. What the law is protecting are stewardship obligations, which can be analytically classified and assayed with respect to the terms of art informing tort law. There isn't but a handful of lawyers in this country aware of the huge implication of this slight modification in looking at the matter. That stewardship has never been a term of the legal art in such matters since the long lost days of the unwritten English constitution does not speak well of lawyers, judges or, for that matter, law school curricula. There is frankly only one reason that sufficiently accounts for the failure. The wealthy, and especially the industrialists, first in England, then here, have always been violently opposed to accountability. Human, all too human, as Rene Dubos put it in his Pulitzer-winning book of that title.
There is a crying need to reprise the stewardship governing secrecy and exposure. More importantly, there is a need to get serious about accountability itself. It is the weak underbelly of American society, made worse by the powerful, who not only make the breeches worse, but make them more difficult to remedy. Speaking of old England, whose voices are thought to have little or no bearing on the present, the following excerpt should disabuse such arrogance. Doing the honors is Christopher W. Brooks (Law, Politics and Society in Early Modern England), who speaks of, and quotes from, sixteenth century jurist Christopher Yelverton, who "criticized the 'common state' of the realm for failing to act in order to stem the tide of 'outrageous offences'." The parallel today is our collective failure to compel adequate accountability on all professional officeholders. As for powerful officeholders, Yelverton was eminently realistic, observing that "even the 'better and discreetor sort', those who seemed "more evenlie to weight both their private duties" and their publique service towards the countrie', might slip into 'misorder' if it were not for the dread of law." And precisely what 'dread' of law compels the stewardship that would have averted the late financial disaster, not to mention the entirety of this nation's healthcare crisis? Pretty well nada. The wealthy have been very successful in convincing very dull-witted judges that the sky would fall were the powerful not permitted to police themselves. Not to omit mention of President Clinton's tacit agreement with this utter and blithering nonsense in approving (as he does still today) the termination of Glass-Steagall.
Finally, Yelverton goes to the true heart of the matter: "Mischief caused by the greatest person was the greatest mischief, 'for when malice is armed w[i]th soueraigntie and power, neither is it so soone decerned by the simple, nor so soone resisted by the wise'..." All of human history has recorded the assessment of Yelverton. Since when did officers of the court feel entitled to so perfidiously expose their intellectual weakness and thus permit the big boys to advantage themselves of the results? Five thousand years or so of experience reflects what does not suddenly change but in the minds of presumptuous professionals who do not sufficiently study their own lofty trade or those either who influence it or are influenced by it. A philosopher should not have to berate the legal profession any more than an Enlightenment historian, yet here we are.
Such, then, is the woeful background that must serve as the context for a discussion of the Navy Seal whose expose will doubtless expose much of whatever perfidy and cupidity may have transpired (in his judgment) in what may also come to be viewed as a collusion of government with the military to trim and sanitize the truth. Such manipulation of fact ought by reason and common sense to require exposing people or operations to danger. As the operation is over and done with, that is fairly beside the point unless the text points out things that went awry that naked intelligence alone might have prevented. What remains is the future damage to the members of the military, and the offices involved, specifically that of the Seals organization, and in a general way elements of the military office implied of any soldier.
I am having rather a hard time inventing some manner by which a serviceperson can or will be compromised or otherwise placed at risk of harm from what can be guessed in broad terms to come from the book. Perhaps a JAG could inform me of some options. What I can deduce, and what deserves attention is, first, the influence on military discipline, and second, the influence on the offices involved. Related to all such considerations is, however, the initial matter of failing to submit the book for approval. A question for the judges: Exactly how is truth going to get out except by avoiding the censors? The burden here, based on the context, should, except that judges care less about law and more about the American recipe book that passes for law, be transferred to the government to prove that there are in fact grounds for a chargeable offense based on the book's contents, and not on the mere fact that it was other than normatively presented. Where on earth is the American jurisprudential sense of decency? Buried in service to the well-connected, that's where.
As for military discipline, the challenge seems to revolve primarily about the nuanced balancing act between obeying orders (because given), versus not obeying them (because unreasoned). But this is a test case if it is anything, and thus the only influence on relevant parameters will accrue only to the extent that the exceptional instance forces a general principle to be modified. I cannot presently see the result, regardless of its details, offering viable rationale for others to duplicate a test that has been ruled out of bounds. And if the soldier is acquitted, then by definition any change, however modifying whatever code(s), is now also in some measure within bounds, if perhaps with more clearly delineated caveats and exceptions, etc.
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