Thursday, August 25, 2011

Assassination and the Rule of Law

News of the death of Osama bin Laden was greeted with a range of emotions in the United States -- from relief, to gladness, to jubilation. Much of the commentary has focused on the cleverness of the mission that led to bin Laden's death, on the lengthy investigation and intelligence effort, on the daring raid by Navy SEALs, and so forth. As time went on, some commentators began to raise questions about the legality and morality of going into another sovereign nation with an armed force and killing one of its residents. Justly so, though most Americans do not really want to think about the hard ethical issues involved and no American politician is willing to ask questions that will lose votes come the next election.

The legal status of the assassination of bin Laden should be clear enough: it was illegal both according to international law and according to United States law. Not that anybody is going to be prosecuted. After all, our nation has refused to prosecute those who condoned or carried out torture -- also clearly against international and domestic law, despite the contortions of Justice Department lawyers in the Bush Administration to take "waterboarding" out of the category of "torture." If we are willing to let bygones be bygones when it comes to torture for the sake of finding a famed international terrorist, why not simply extend that allowance to the killing of that very same terrorist? And there is no adequate mechanism to prosecute a nation (or its agents) for a violation of international law of this sort, especially a nation as powerful as the United States. Nor is there the political will or the prosecutorial chutzpah to bring federal charges against those who ordered or carried out the shooting of bin Laden.

What all this blithe illegality says about our commitment to the rule of law is subject to debate. I well-written article in Salon this week by Karen Greenberg argues that the decision simply to assassinate bin Laden rather than arrest him and bring him to justice in American courts reflects an increasing distrust in Washington of our court system. Greenberg argues that, when read along with the Patriot Act, the treatment of Khalid Sheikh Mohammed, the brutal handling of whistleblowers Thomas Drake and Bradley Manning, and the continued use of military commissions and the prison camp at Guantanamo Bay, the story of bid Laden's assassination simply confirms the fact that the rule of law has collapsed in the years since 9/11.

Normally I try not to fall victim to this sort of bold overstatement. In general, I do not believe that the killing of bin Laden suggests that the rule of law is in jeopardy in the United States -- at least not any more than it was prior to the killing. Nor do I think our brash flaunting of international law will ultimately have much effect on commitment to the rule of law across the globe -- that commitment has always been subject to the wishes of powerful nations to do what they want when they want to do it.

But Greenberg does make a compelling case that, regardless of the long-term effect on the rule of law, political leaders in the United States -- and perhaps even more vehemently their opponents -- have lost faith in our court system, either because it is not tough enough on bad guys or because it is not certain enough in its results. The reason they offer to try suspected terrorists someplace other than the sort of courtrooms that handle our more mundane criminal matters quite well every day, is that those courtrooms -- those lawyers, those judges, those juries -- do not guarantee that the alleged terrorist will be found guilty while he sits silently awed by the majesty of the U.S. government and then be punished with extreme severity. The reason not to arrest bin Laden, fly him back to the United States, there to stand trial in some federal court for his crimes, they tell us, is that (unlike proceedings in the Star Chamber) we cannot be absolutely certain, beyond a shadow of a doubt, that he will be convicted and sentenced to death. There are just too many procedural safeguards, too many opportunities for the accused to speak and confront his accusers, too many rules, too many laws, too many court opinions that must be followed on the way to a final judgment. Why run the risk? The reigning mentality in Washington has not changed since spokespeople in a previous administration made quite clear that, while the rule of law is fine under normal circumstances, these are abnormal times calling for quick, decisive, unfettered action to save civilization. (I first raised this issue in the aftermath of the September 11 attacks.)

There are those, even those noted for cultured tastes and thoughtful views on the issues of the day, who suggest that since the deep guilt of bid Laden was almost universally accepted, it made sense not to run the risk of a failed criminal arrest (whether due to the untrustworthiness of the Pakistani government or the bumblings of our own law enforcement people); it made sense not to run the risk of a mishandled prosecution or of bin Laden turning the proceedings into a circus. Since he was guilty, it was simpler and more reliable simply to "take him out." But doing so sets a bad example. In effect, by acting the way we did we claimed something like "might makes right": if you have the power, you can just swoop in and kill the bad guys; there is no reason to go through legal processes. Gang members and military dictators use this logic all the time, and if it is permissible for the United States to act on this logic, it is hard to figure out why it is wrong for Don Corleone or the leader of the Crips or Col. Qaddafi to act on it when they want to eliminate a bad guy -- and, let's face it, that is who they frequently eliminate: real bad guys. If it is permissible for the United States to skip established procedures and just punish (with death) someone assumed to be guilty, it is hard to explain why it is wrong for the playground bully to beat up the kid who stole the little girl's candy. The logic is the same -- the only difference may lie in the utter immunity to being called to account possessed by the United States. But surely, increasing one's might exponentially does not make it any more right, though it may mean one will not have to face any consequences. We spend billions of dollars each year trying to get other nations to embrace the rule of law, but we blithely set it aside when it suits us to do so. Bad lesson all around.

One cannot contend that the killing of bin Laden was a justifiable act of war: first, because in war it is illegal to kill a prisoner if you do not have to to protect yourself -- this was a hit not a fire fight; second, because there is no convincing sense in which we are at war with bid Laden -- there is no legally declared war at issue here. Indeed, there is no isolable enemy against whom to declare war -- bid Laden himself was neither a country nor a representative of one, and so there is no possibility of declaring war on him or his organization. We do not declare war on individual criminals or their gangs, no matter how serious the problems they cause. And we should by now have learned to take with a grain of salt the Bush-era metaphor of a "war on terror." One cannot fight a "war" with an international problem. Wars are fought against other nations. This was a vendetta, not a war.

It was a vendetta because we refused to couch it in the language and practices of the rule of law. The glory of the rule of law is that it is more advanced than the vendetta. We were once convinced that the rule of law is the civilized way to behave -- and that we were civilized. Not anymore. Now that we have so much power, we gladly use it whenever we want something done. Legal processes are cumbersome, slow, public, and uncertain. But that does not mean they are unsuccessful at bringing the guilty to justice. In fact, as Greenberg demonstrates, the criminal justice system has been notably successful at trying and convicting those charged with terrorism -- more successful, as a matter of fact, than the military commissions set up to dodge the legal system. The experience has been that, if you present a good case against someone accused of terrorism, you will win. We trust American law enforcement agents all the time to go to a foreign country, find, and capture (or work with local law enforcement to ensure the capture of) criminals and bring them back to the United States, where they are prosecuted in our civilian courts. We trust our prosecutors and courts all the time to convict and punish wrongdoers. The system works, but we chose to forsake it here.

There is something sexy, I suppose, about those brawny SEALs, with all their rigorous training and their bare-chested willingness to do what they are told -- far more appealing than some boring FBI agent in a gray suit, with her devotion to proper criminal procedures. We are a culture that idolizes many of the wrong things, and one of those things is the ultra-masculine superhero, the Terminator-type. And so, we eschewed the use of highly trained, smart, and routinely successful law enforcement agents, lawyers, and judges -- and juries filled with thoughtful, but unheroic, American citizens. We opted for the Hollywood scenario, rather than the everyday. We chose to spit in the eye of the rule of law.

Who are we? Who have we become? This is a question I ask each year of the students in my American Citizenship course, students who have imbibed huge drafts of Hollywood machismo and the assorted biases that go along with that sort of upbringing. A people defines and re-defines itself over time, creating, and re-creating constantly, its own identity as a people through an ongoing process of speech and action, debate and deliberation. It is because citizens of a constitutional republic should participate in this process of defining and re-defining that I have put so much emphasis in recent posts on thinking -- for thinking citizens will work together to define themselves publicly in ways that engage creatively with their past, their present, and their anticipated future. Thinking citizens are equipped to participate in the ongoing give-and-take of public reason (to borrow a phrase from John Rawls) through which they choose over and over who they will be and how they will live together.

But we are not a nation that does much to encourage thinking or participating with others in defining our identity. The result is that our identity has come more and more to resemble an action hero impatient with fair process; the result has been a process of identification dominated by a few, ignored by most, and characterized by shrillness, silliness, and meanness. We look less and less like the democracy that proudly thought of itself as the shining city on the hill, providing an example of justice, reason, liberty, and equality to the rest of the world. Now we are just the big bully on the hill, bereft of our ideals and infatuated with our might, afflicted with a bad case of what J. William Fulbright called "the arrogance of power."

Wednesday, August 17, 2011

The American Scholar, Part Two

I have been trying to do some thinking about thinking itself. The justification for what must seem to many to be a bizarre sort of navel-gazing lies in my belief, stimulated by the observations of Hannah Arendt, that good citizenship requires thinking, a habit of stepping back from the fray of daily life and examining things, and the skill to pull that off. I have the sense that this sort of citizenship is in short supply today, even in the professions where one would otherwise find thoughtful people (law, for example). So, what is meant by "thinking" in this civic sense? What does it require? What is it "about"? What consequences does it have? These are not easy questions.

In "The Humanistic Intellectual: Eleven Theses," Richard Rorty draws a distinction between two sorts of intellectuals. The first sort are "busy conforming to well-understood criteria for making contributions to knowledge." They are engaged in what Thomas Kuhn called "normal science." They are caught up in carrying out narrowly defined research programs, and they rarely ask "big" questions. As I have argued previously, though these intellectuals may be "thinking" in the technical, instrumental sense, they are not thinking in the broad, "out of order" sense Hannah Arendt believed to be essential to citizenship in a democratic republic and Ralph Waldo Emerson considered central to the mission of the American Scholar.

The second sort of intellectual in Rorty's scheme are people "trying to expand our moral imaginations." These people read books not in the way of Emerson's bookworm (who treats books as sacred objects in themselves and their authors as demigods), but "in order to enlarge their sense of what is possible and important -- either for themselves as individuals or for their society." Rorty calls these folks "humanistic intellectuals," and they are the sort of people he wants to encourage. They resemble Emerson's American Scholar, though not in every detail. Their distinctive role is to serve as teachers, as intellectual provocateurs inspiring fellow citizens to think. Humanistic intellectuals approach teaching as a process of "stirring the kids up" and their idea of research is to read a lot more books that might help them grow, to change, to become different persons. They instill in their students doubts about themselves and about their social world. They rattle the cages of the complacent. They inspire thought. They can be found scattered here and there around the campus -- though they are much rarer than Rorty imagines. No department or discipline has a monopoly on such characters, certainly not Rorty’s own field of philosophy; indeed, Rorty tells us, humanistic intellectuals are as likely to crop up in law schools as in the humanities or the sciences. They can be found off campus as well -- sometimes within the professions, sometimes among the rich and comfortable, sometimes even in the media -- but these social locations generally do not conduce to thinking as a vocation. 

Emerson argued that thinking demands reflection, a stepping away from daily affairs to develop ideas, a distance from the mundane issues of the day or the current "hot topics" of the political world. He is surely right about this. Thinking, as Aristotle noted long ago, requires a bracketing of the manifold commitments, obligations, impositions, and distractions of daily life; it requires at least temporary satisfaction of quotidian wants and needs, freeing one up to contemplate, to wrestle with ideas. One way of understanding Arendt's claim that thinking is "out of order" is to recognize that thinking can only occur when one steps, if only momentarily, out of the order of daily life.  

This vision helps explain why we have long tended to look for (and to find) thinkers on the college campus or in some similar haven from the storms of daily life. There is, too, a certain historical warrant for this tendency to see thinking as something that can only be done by those removed from the trials and tribulations of day-to-day affairs (Plato, Aristotle, Aquinas, Kant, and Hegel offer examples). Of course, there is plenty wrong with the idea that the campus is an "ivory tower" removed from the worrisome and preoccupying commonplace concerns of human experience; but there is something to the idea that, at least ideally, it can provide a safe place in which intellectuals can think. Perhaps this is why some of the more interesting thinking -- though also some of the sillier forms of dilettantism along with amateurish, abstruse driveling -- can be found in law schools. [One reason to resist the trend toward more "practical" training at law schools is that it will inevitably reduce the amount of actual thinking going on, and deprive students of a chance to witness thinking in action, thus depriving them of the chance to pick up the habit themselves.]

But there are crucial differences between Emerson’s scholar on the one hand, and Rorty's humanistic intellectual or Arendt's thinking citizen on the other. Emerson not only wants his scholar to step outside daily life for a few treasured moments of thought. He contends further that the scholar can only truly pursue his vocation as a self-reliant, isolated individual who refuses to get caught up in the issues of his day and society. I think he is wrong about this. I think his self-reliant, independent scholar is a failure as a citizen, and this failure is a matter of considerable importance. And I believe Arendt and Rorty would agree.

Both Rorty and Arendt talk about thinking in a way that suggests that an important characteristic of it is what we could call an "outward orientation." For both believe that thinking should be turned back toward the issues of the day, toward one's community and one's fellow citizens. Thinking, as they see it, cannot remain a matter of mental processes inside an individual person. While it must start as consideration of things that are "good for nothing immediate," it must soon extend outward. Thinking is a matter of engaging with
where one is, with one's historicity (to use a Heideggerian term), with all those influences that make one's self into the network of beliefs and desires it is at any given time. But to so engage is not only to change oneself (recall that this is why Rorty's intellectuals read books), for after thinking one must re-enter the world, inevitably changing one's surroundings, usually in small but sometimes in great ways. The human person cannot sequester himself away from the world for long, isolated from the cascading set of relationships in which he is enmeshed -- relationships with the world, with one's people, with the political system and governmental system (they are not the same) of one's country, with one's immediate community and one's fellow citizens. We are caught inevitably in these webs. Even Thoreau, out there on Walden Pond so intentionally alone, could not escape these relationships. We are all in positions of citizenship, though most of us are miserable citizens. And thinking, that quality that asks us to step out of our daily order, necessarily improves our citizenship, for it leads to speaking, deliberating, and acting in the world. It presages the projection of oneself back into the world, there to negotiate with others the shifting network of beliefs we create and share with them.   

Emerson seems to have imagined that our nation would fulfill its destiny if only there were enough thoroughly autonomous individuals out there thinking and improving themselves. Thoreau insisted famously in his essay on "Civil Disobedience," that "[i]t is not a man's duty, as a matter of course, to devote himself to the eradication of any, even to most enormous, wrong; he may still properly have other concerns to engage him; but it is his duty, at least, to wash his hands of it, and, if he gives it no thought longer, not to give it practically his support." But neither Emerson nor Thoreau could quite live up to this ideal of pure aloofness. Both felt the need to write about their thoughts, to share those thoughts with their fellow citizens. Emerson traveled around the country giving lectures; he did not hide in his study in Concord, lost in thought. Thoreau refused to pay his taxes as a way to demonstrate his opposition to slavery and the Mexican War -- and then wrote about his reasons, making them public, stepping into the public arena to address his fellow citizens. Even these non-political men, believing firmly that the purpose of thought was to improve oneself no matter what the society may be doing, could not avoid the relationships in which citizens exist.   

So Rorty and Arendt are onto something. Social detachment of the sort Emerson praises is not really possible for long, and so can constitute an ideal toward which to strive in only a muted and uncertain sense. I think Emerson was wrong to think the society would be better off were there more isolated American Scholars around. Encouraging isolation carries the risk that more and more citizens will eschew the public realm, leaving it to the vain, the ambitious, the crass, the power-hungry. It is more likely that isolation will take the form of self-involvement, self-interest, a focus solely on one's own mundane betterment, and one's own entertainment -- to a society of viewers rather than public actors, a society where isolation becomes the locus not of thinking but of passivity and of what Robert Putnam colorfully referred to as "bowling alone." Isolation rarely leads to thinking and re-engagement with others; it just leads to deeper isolation or shallower contact with fellow isolates. As Putnam has argued, we have seen far too much of this kind of isolation already in the United States and it is at least partially responsible for the sad situation of our democratic republic at this moment. 

Saturday, August 6, 2011

The American Scholar, Part One

"Thinking," as Hannah Arendt tells us in her essay "Thinking and Moral Considerations," is an essential attribute of both good philosophy and good citizenship. If we want to encourage good citizenship, we need to encourage (and prepare citizens to engage in) real thinking -- not just the mundane stuff of opinion formation that passes for thinking today (and in Plato's cave), and not merely the instrumental thinking practiced by functionaries and bureaucrats, who use their minds to develop ways of achieving whatever ends they are charged with achieving (see Arendt's discussion of Adolf Eichmann, for instance). Instead, we need to encourage that "good for nothing immediate," "out of order" thought upon which the success of a democratic republic rests, because it is only a people familiar with that kind of thinking activity that can resist the drift into anomie and tyranny.  

But we live in a society that does not encourage thinking, perhaps one that actively discourages it. Certainly much that passes for education has little to do with preparation for thinking. As a result, many of our fellow citizens -- even highly educated ones in the professions, perhaps especially there -- do not think in the Arendtian sense, have never had a thought as such, and hope never to have one.

Ralph Waldo Emerson, for all his faults (and they are legion), raised a similar criticism of the America of his day. In his address to the Phi Beta Kappa Society at Harvard, entitled "The American Scholar," given not long after he had forsaken the Unitarian ministry in favor of becoming an independent scholar, Emerson tries to define the characteristics of the American scholar, contrasting this ideal with ministry, with devotion to social reform, and with what typically passed in his day (and still passes) for scholarship. What we can learn from Emerson is that the scholar is a thinker -- he is what Emerson termed with Germanic seriousness "Man Thinking." The scholar reflects independently, carefully, and deeply on his interactions with nature, with the great thought of the past, and with the social world around him. The true scholar, in Emerson's view, is someone who takes everything -- every experience, every contact with the natural environment, every book he reads -- as grist for the mill of his own thinking. He is necessarily rare -- at least in his guise as Man Thinking -- which is not to say that many of us cannot rise to his level on occasion, when time permits, when inspired by our muse. There are many quibbles one could raise against Emerson's view -- in particular with his belief that the thinker should not get caught up in the issues and movements of the day -- but I am struck by the applicability of much that he says about thinking to our situation today.

Emerson teaches us that the scholar is not the bookworm or the scientist wrapped up in a narrowly-defined, corporate-funded research program. She is not the journalist compelled to write, write, write on the issues (however trite or invented) of the day. He is not today's academic, preoccupied with publishing (in esoteric journals no one reads) in order not to perish. She is certainly neither the corporate or government functionary nor the medical or legal professional, busily applying instrumental reason to technical, mechanical problems in organizations, institutions, or society at large. Nor, finally, is he today's politician, who has given a bad name to the bios politikos by eschewing a concern for a common good defined other than as his personal, political good or the good of his fellow-travelers. 

Emerson makes clear that scholarship of the sort he has in mind is unlikely to occur in universities or colleges. What counted as "scholarship" in his day was a deep familiarity with the "classics," a devotion to preparing accurate editions of "great" texts, a desire to know the ideas contained in those texts. Emerson argued that it is better to know what one thinks oneself than to know what ever so many ancient authors thought. He insisted that old books have no inherent virtue except as triggers for one's own thinking. And he derided the "academy" of his day for failing to teach students to think for themselves, forcing them rather to master a pile of dusty and ancient books, written by dead authors who wrote in dead languages. He decried the "degenerate state" of contemporary scholarship, stating that it produced "a mere thinker, or, still worse, the parrot of other men's thinking."  

Emerson's criticism of "schooling" of this sort still applies today. What counts as scholarship today is narrow, specialized research into selected, often trivial or abstruse topics. Not only is the research narrow, the questions asked insignificant, but the selection of topics itself is extraordinarily cramped. So-called scholars spend years of their lives researching tiny, recondite aspects of the world around them. She who would earn tenure in today's university had better specialize in some constricted, even obscure, little corner within her larger disciplinary field, which itself is already considerably attenuated. No one could earn tenure today with a body of essays on the variety of topics on which Emerson wrote: from self-reliance, to friendship, heroism, poetry, character, manners, nature, beauty, worship, and politics. What academic discipline is described by these topics? 

Today's academic disciplines require their practitioners to focus to a pinpoint their minds, their work, their writings. Philosophy professors write about abstruse aspects of language, providing large bodies of evidence (were such needed) of the irrelevance of their discipline. English professors analyze rather than write literature (usually by asking questions no one has ever thought of asking before, and no one will again) -- the best of them are Emerson's "bookworms," while most of the others have sapped the life out of imaginative literature for themselves and their students. Scientists, including their poorer cousins the social scientists, must choose circumscribed areas of research to which to apply so-called scientific method; indeed, their method only really works when applied to problems defined in the narrowest way possible. Social scientists, from whom we might expect some interest in wrestling with the big questions of social and political order, simply assume the important things that call for serious thinking. Scientific results tend to be helpful at best; more commonly, they are trivial and cute, endlessly filling endless shelves of arcane professional journals.

All these so-called scholars are driven by the need to (1) publish (or perish) and (2) be original (for otherwise you cannot get published in the right "scholarly journals"). These two factors shove would-be scholars into a straitjacket and force them to think only instrumentally. There are notable exceptions, to be sure -- exceptions that prove the rule. Occasionally someone -- a philosopher like Richard Rorty, for example, or an English professor like Stanley Fish -- can rise above the stultifying environment of the academy to do some serious thinking, work that spans disciplinary boundaries (work consequently much criticized by the guardians of the disciplines), addresses matters of significance, and abjures the confining expectations of their field. Such people can do this, of course, only after carving out a position in the disciplinary world -- Fish, for example, was a noted Milton scholar, Rorty a linguistic philosopher with a bent toward epistemology; both earned tenure at top-flight universities. The existence of a Rorty or a Fish only goes to show that "thinkers," if they pursue their inclinations, cannot be held back by even the tightest of professional bonds; it does not suggest that academia is a place where one can expect much thinking.

Graduate schools, at least most of them (my own experience was somewhat, though not entirely, different) view their role as training grounds for the academic professions, and they quickly teach their inmates that broad-mindedness, eclectic interests, interdisciplinary thinking is taboo -- such scholarship won't get you a job and certainly won't get your tenure. Instead, graduate schools prepare students for a world in which tenure is most often reserved for the good soldier who has dutifully devoted his or her life to some specialized topic about which he or she can claim to be one of the two or three experts in the world. It is unfortunately rare for anyone evaluating the work of these soldier-scholars to ask "So what?"

And as for professional schools -- law schools, medical schools, business schools, and the like -- no one could reasonably expect them to produce thinkers in the Emersonian sense, for their mission is to train rather than educate, to fashion people who can analyze problems in the distinctive way of their profession and apply the right sorts of technical methods to arrive at solutions. Professional schools teach their students to think like lawyers/doctors/business executives -- which is to say, not really to think in the deep, non-instrumental sense at all. Of course, as with university professors, some lawyers, doctors, and business executives swim against the stream and actually engage in some thinking -- but they are few and far between, deviants who sit uncomfortably in the midst of the highly trained mediocrity around them.

So we are no closer to cultivating thinkers today than we were in Emerson's day. She who would truly think would do well to avoid the cloister, the ivory tower, the professional school. She must find a different path, figure out a way to make ends meet while carving out enough time to pursue her thoughts. She does not, unfortunately, live in a time, or a land, that is congenial to her vocation. And yet without thinkers, it is hard to imagine how we might stimulate our fellow citizens to think now and then rather than emote, react, or dismiss the realm of ideas as a distraction from what they have learned to feel really matters.